Position Of Courts Research Articles

The Kelsenian Model of Constitutional Review in Times of European Integration – Reconsidering the Basic Features

Summary The paper deals with the changes in the centralized (Kelsenian) model of constitutional review resulting from a state’s membership of the EU, which unequivocally demonstrates the decomposition of the classic paradigm of constitutional judiciary. The main point raised in the paper is that European integration has fundamentally influenced on the four above-mentioned basic elements of the Kelsenian model of constitutional review of legislation, which are the following: the assumption of the hierarchical construction of a legal system; the assumption of the supreme legal force of the constitution as the primary normative act of a given system; a centralised model of reviewing hierarchical conformity of legal norms; coherence of the system guaranteed by a constitutional court’s power to declare defectiveness of a norm and the latter’s derogation. All its fundamental elements have evolved, i.e. the hierarchy of the legal system, the overriding power of the constitution, centralized control of constitutionality, and the erga omnes effect of the ruling on the hierarchical non-conformity of the norms. It should be noted that over the last decade the dynamics of these changes have definitely gained momentum. This has been influenced by several factors, including the “great accession” of 2004, the pursuit of formal constitutionalization of the EU through the Constitutional Treaty, the compromise solutions adopted in the Treaty of Lisbon, the entry into force of the Charter, and the prospect of EU accession to the ECHR. The CJEU has used these factors to deepen the tendencies towards decentralization of constitutional control, by atomising national judicial systems and relativizing the effects of constitutional court rulings within national legal systems. The end result is the observed phenomenon, if not of marginalisation, then at least of a systemic shift in the position of constitutional courts, which have lost their uniqueness and have become “only ones of many” national courts.

Interpretation of the Convention about human rights protection principles in Ukraine’s court practice on tax disputes

The article offers an analysis of the specificity of interpreting the Convention for the Protection of Human Rights and basic freedoms in judicial practice as regards tax disputes. Powerful systematic changes have been made towards practical and effective implementation of the Convention principles into national legal order by the state, civil society and international organizations. A normative-legal basis has been created to determine the national courts’ duty to use law, with the consideration of the European Court of Human Rights practice, and to use law while interpreting the principles related to rights and freedoms. At the same time, the carried out analysis of court practice on tax disputes is evidence of insufficient influence of Court standards, superficial and “ritual” application of legal Court positions concerning different human rights, prevailing absence of the references to principles developed by the Court and doctrinal approaches for the appreciation of the situation and promulgation of legal decree. The problems of interpreting Convention principles and the Court practice may be reduced to subjective and objective factors. The problems of subjective nature consist in the absence of appropriate legal training and corresponding level of awareness concerning the Court decrees content, and also the principles and doctrines, on which they are based. The problems of objective nature are those concerning the lack of a proper (not formal) vision of appropriate instruments for implementing European remedial standards in the legal system of Ukraine on the level of state policy

Analysis of point deduction patterns in Taekwondo using association rule learning

ABSTRACTThree hundred and forty five matches from the men’s division of the 2017 Muju International Taekwondo Competition were studied to record the instances and nature of point deductions. Deductions were noted in respect to match conditions, match times, positions in court, and the type of deductions. These data were used to record frequencies as well as correlation between events using association rule learning. Firstly, we found the highest frequency of point deductions occurred when an athlete already has lower scores during a match (i.e. when they are losing in the match). Deductions were most numerous during the second round, and when play was in centre-of-court. Point deductions of number 3 were the most common (grabbing or pushing the opponent). Secondly, correlation between point-deductions and certain events were found in the following order: 2 points (out-of-bounds) against a winning contestant in the third round fighting at the outskirts of the court; 4 points (miscellaneous) in the first round to drawn contestants fighting at the centre-of-court; 1 point (falling) against a losing contestant in the third round fighting at the centre-of-court.

Analyzing the Litigation Practice Concerned with the Consideration of Intellectual Property Cases in Kazakhstan

Nowadays, one of the pressing issues of intellectual property protection is unsystematic judicial enforcement. It is a common situation when different courts hold diametrically opposite positions in similar cases. Moreover, court decisions do not always comply with the existing law and litigation practice in intellectual property cases, which ultimately hinders the uniform and accurate application of the law in this sphere. In addition, the effectiveness of intellectual property rights significantly reduces due to the adoption of ‘ridiculous’ judicial acts, which negatively affects the policy pursued by Kazakhstan to fight against the violation of the above-mentioned rights. The article is relevant since the problem in question is insufficiently studied, which conditions scientific interest and determines its applicability. The main objective of this research is to consider and analyze law enforcement based on the study of civil cases in the sphere of intellectual property, as well as identify contradictions and gaps in the current legislation on intellectual property protection.
 In this regard, the article aims at identifying the controversial aspects of this category of cases, explaining their causes and offering a possible solution. The article analyzes judgments delivered by courts of the Kostanay Region regarding intellectual property, evaluates the existing legislation on intellectual property rights, reveals topical issues and develops ways of addressing them. The main approach to studying the above-mentioned problem is analysis that helps consider some claims challenging certain intellectual property rights, which is also the research object. Since the litigation practice concerned with intellectual property protection is being developed, this article can predict a possible position of courts on this issue. The theoretical and practical significance of this study is conditioned by the conclusions drawn by the authors regarding the development and improvement of the current civil and civil procedure legislation. Thus, this article is of practical interest not only to students and lecturers within the framework of the ‘Intellectual Property Rights’ discipline, but also to intellectual property owners and judges.
 The scientific novelty of this study can be explained by the comprehensive approach to analyzing the effective protection of intellectual property rights in modern conditions with due regard to the law enforcement system of Kazakhstan and the need to strengthen the role of the state in solving problems related to the protection of intellectual property rights.

The Dialogue between the ECHR and the Italian Constitutional Court: The Saga of 'Giem and Others V Italy

Following a series of cases brought against Italy in relation to non-conviction based confiscation, the European Court of Human Rights engaged in a judicial dialogue with the Italian Constitutional Court over the correct interpretation of the European Convention on Human Rights and in particular Article 7. This article elaborates on the background of this dialogue and analyses the European Court's position in its most recent judgement in this saga: GIEM and Others v Italy.

Understanding the (Ir)Relevance of Shareholder Votes on M&A Deals

Has corporate law and its bundles of fiduciary obligations become irrelevant? Over the last thirty years, the American public corporation has undergone a profound metamorphosis, transforming itself from a business with dispersed ownership to one whose ownership is highly concentrated in the hands of sophisticated financial institutions. Corporate law has not been immutable to these changes so that current doctrine now accords to a shareholder vote two effects: first, the vote satisfies a statutory mandate that shareholders approve a deal, and second and significantly, the vote insulates the transaction and its actors from any claim of misconduct incident the approved transaction. This article takes issue with the courts and commentators who have so elevated the impact of shareholder approval to insulate misconduct. We develop why it is not reasonable to believe that the shareholders’ competencies extend to adjudging managerial misconduct, why that conclusion is inconsistent with other modern corporate law developments, and why such shareholder ratification is likely both coerced and poorly considered. We also point out that the position of courts and commentators who pronounce the death of corporate fiduciary law is deeply qualified by the deep conflicts of interest institutional investors face when voting as well as the very real threat that today’s ecology that supports shareholder activism is likely to change so that the voice of the discontented shareholder will be at least more muted in the future. Finally, we provide strong empirical support based on a sample of 852 merger deals from 2000 to 2015 that there is a very large thumb on the scale that pushes all deals toward approval, regardless of any allegations of wrongdoing. We observe substantial ownership changes at target corporations, sometimes as high as 40 to 50% of their stock, from long-term investors to hedge funds upon the announcement of a deal and before the consummation of the transaction with a shareholder vote. This change reflects the merger arbitrageurs’ actions. We further show that this change in ownership has a positive and statistically significant impact on the likelihood of merger deals garnering the required shareholder approval. We conclude that the Delaware courts need to rethink their obsession with the shareholder vote, renounce the current doctrinal trends that are taking them in the wrong direction, and return to their historic role of evaluating whether directors have satisfied their fiduciary duties in M&A transactions.

Prevalence and Factors Associated With Injuries in Elite Spanish Volleyball

Prevalence studies have been carried out widely on elite volleyball players. However, the extent to which specific prevention strategies are used and the influence of the sport equipment on the occurrence of injuries have been sparsely investigated. To describe the prevalence of injuries sustained during 1 season in elite Spanish volleyball leagues and to investigate the association of injuries with factors such as player court position, injury mechanism, type of shoes used when playing, or participation in prevention activities. Descriptive cross-sectional epidemiology study: observational study. European elite professional volleyball. Professional volleyball players from the elite Spanish volleyball league. A self-report questionnaire assessed the presence of injury during a volleyball season. Questions included the type of injury, its anatomic location, participation in prevention strategies, shoe type, the injury mechanism, the season period, the period of leave, and the treatment received. In total, 490 players (71.2% response rate) completed and returned the questionnaire. The injury prevalence was 66.9%, and the average of injuries per player was 0.94 (0.85) (range: 0-4). Most Spanish elite volleyball players participated in prevention programs during the season (90.3%) and played volleyball with low-top shoes (83.6%), but these factors were not associated with the prevalence of injuries (P > .05). The anatomic regions with the most injuries were the ankle, knee, and shoulder; the most common types of injury were sprains, tendinopathies, and strains, usually occurring during blocking and attack actions during the in-season period. Despite most elite volleyball players participating in prevention programs, the results reveal a high injury prevalence. Further prospective research on the effectiveness of prevention strategies in elite volleyball is needed.

Особливості судового оскарження постанов у справах про адміністративні правопорушення, винесених працівниками Національної поліції (за результатами судової практики)

The purpose of the article is to study specialties of judicial claiming of acts in cases of administrative offences rendered by police officers. To conduct the research successfully, the author used the following methods of scientific knowledge: logical, historical, systemic-functional, and formally-dogmatic. As a result of the study, the author analyzes the practice of administrative courts about adjudication of claims on acts of administrative offences made by police officers, including traffic violations. Established that a lot of cases in which police officers appear as defendants, cases about appeal against the decision, actions or omissions of police officers due to bringing to administrative responsibility associated with some interconnected factors: a large number of appeals against decisions in cases of violations of traffic rules with a high degree of ignoring the norms of traffic rules by all road users in our country; imperfect (sometimes problematic) road infrastructure; high latency of these offences and due to this a high level of impunity of drivers; conflict drivers and not ability to admit their guilt; absence of affective mechanism of pretrial resolving such disputes; easy access to theirs judicial resolving (no court fee); also don’t throw away the procedural illiteracy of police officers. All this in array leads to the fact that this category of cases is an essential part of the activity of general courts as administrative courts. Conclusions. Without going to the sociological analyze of this phenomenon, within the article author made the analyze of judicial practice of considering this category of case, found out the position of courts about resolving them that greatly affects on law enforcement practice and sometimes on the legislation and suggested some ways of their application by judges of administrative courts.

Захист права власності у господарському судочинстві.

The article is devoted to the study of the protection of property rights in economic proceedings. Based on the analysis of the provisions of the Economic procedural code of Ukraine, the Civil code of Ukraine and court practice of consideration by commercial courts of cases on claims for recognition of the right of ownership in case of loss of legal documents, the recognition of the right of ownership in ownerless thing, the object of unauthorized construction, on the acquisitive prescription on the basis of lack of dispute on the right identified by the court's position about the impossibility of dealing with such cases in the proceedings due to the absence of a dispute about the law. It is noted that for the above-mentioned categories of cases, it is impossible to involve the defendant in the case, due to his absence. On the basis of the conducted research, it is proposed to introduce the consideration of cases by economic courts concerning the protection of property rights of economic entities in case of loss of legal documents, the need to separate the property in kind from joint ownership, recognition of ownership of a ownerless property, unauthorized construction, by acquisitive prescription is separate proceedings. It is clarified that the actual basis for the protection of property rights in this order should be recognized as the absence of any other than judicial method of restoring the violated right. The features of determining the ways to protect property rights under claims that are caused by the contract, the validity of which is terminated at the time of appeal to the court, are studied. The expediency of applying mandatory legal methods of protection of rights in the case of protection of property rights in connection with nonreturn to the owner of the property under the contract after the termination of the contract is noted.

Evolução Legislativa e Jurisprudencial da Tributação Brasileira dos Lucros, Rendimentos e Ganhos de Capital Auferidos no Exterior

The article is an empirical research on legislative and jurisprudential development of the taxation of profits, gains and capital gains earned abroad. The objective is to analyze the background of the laws and the decisions ruled by the Judiciary and the administrative courts in order to unveil the Brazilian tax policy as regards this matter, and to settle both the tax position of the administrative courts and the application of the tax treaties by the Judiciary. The idea is to present the development of the legislation until the promulgation of Law n. 12,973/2014 and predict how the taxation of foreign profits, income and capital gains will be ruled by the judiciary.

The principle of legal certainty in the institute of administrative responsibility Russian Federation

The article reviews the positions of higher courts in relation to the principle of legal certainty of the law that is not enshrined in legislation, specifies the problems of implementing the Administrative Code of the Russian Federation and the laws of the subjects of the Russian Federation on administrative violations arising in connection with the application of this principle. With a general positive assessment of the principle under consideration, it is suggested that it should be rejected from the institution of administrative responsibility, which presupposes a ban on sending to municipal legal acts.Also, the composition of administrative offenses that are widespread in the constituent entities of the Russian Federation is transferred to the federal level, and in the Administrative Code of the Russian Federation, in order to exclude the excessive formalism of the law enforcer, to fix the general rule on the admissibility of going beyond the sanction when imposing administrative punishment.

Walking a fine line – The legal system and sign language interpreters

Legal interpreting as an applied linguistic activity has been explored in the literature, with various explorations of the role of legal interpreters from a discourse perspective. Current thinking in interpreting studies classifies the role of the interpreter as a participant in interaction and co-constructor of meaning. Sign language interpreting as a professional practice typically occurs in legal contexts where the deaf person is the complainant, defendant or witness. However, recent research has begun to explore the provision of sign language interpreting for deaf jurors. Drawing on a corpus of 12 qualitative interviews, and with reference to frameworks of discourse and responsibility, this paper presents analyses of perceptions from two key stakeholder groups - sign language interpreters and lawyers - on the level of professional responsibility that each stakeholder feels that sign language interpreters need to adopt in the legal setting, and their perceptions of the role and responsibilities of sign language interpreters in this context. This study reveals that the legal and moral boundaries of meaning attributed to interpreters' responsibilities are blurred, yet both stakeholder groups have their own clear perceptions of the duties attached to the interpreter's position in court. Thus interpreters need to walk a fine line in how they manage their role and responsibilities according to interpreting studies theory while meeting the linguistic needs of their deaf clients in court and adhering to their responsibilities as perceived by the justice system.

MARIA FOLLIA, A COURT LADY OF THE HUNGARIAN QUEEN ELIZABETH ŁOKIETEK, ACCOMPANYING HER MISTRESS ON A JOURNEY TO ITALY

The journey and stay of the Hungarian queen Elizabeth Łokietek, mother of King Lajos the Great and widow of King Charles Robert, to the Kingdoms of Naples and Rome from June 1343 until May 1344, is a well-researched topic in historiography. On that journey the queen was accompanied, as a Hungarian chronicler noted, by her court, numerous ladies-in-waiting, girls of noble origin, Hungarian barons, knights and servants. Yet, of all the women accompanying the queen, only the identity of one of her court ladies is known, that of aristocrat Maria Follia. Her presence in the (closest) surrounding of the queen is testified by two diplomatic sources, one of Hungarian and another of Naples provenance. Maria was the widow of a recently deceased Hungarian palatine William Drugeth (who died in September 1342). The author in this paper investigates the causes and complex circumstances under which Maria Follia participated in the Italian journey of her mistress. The issue is all the more interesting since it is known that, after the death of palatine William, the Drugeth family, until then the most powerful Hungarian baron family, lost their wealth, fortune and positions in the royal court. One of the possible answers to this question is a conclusion that the palatine’s widow, independent of her husband’s family, stayed in good relations with Queen Elizabeth and kept her positions in the royal court.

Interaction Between Civil Law and Criminal Law in the Protection of the Rights of Theft and Fraud Victims

One of the trends in contemporary law is the interaction between its branches because an offense infringes upon a number of rights and interests of the victim that cannot be reduced to a single sphere of legally regulated relationships. This trend is reflected, specifically, in the interaction between civil and criminal law, which has attracted the attention of well-known Russian legal scholars many times. The trend is also observed in court practice, for example, in the Decree of the Plenary Session of the Supreme Court of the Russian Federation «On Court Practice Re. Cases of Fraud, Misappropriation and Embezzlement» of November 30, 2017, No 48. It is also manifested in the use of civil law categories and criteria for the general and specific components of crimes like theft (Art. 158 of CC of the RF) and fraud (Art. 159-159.6 of the CC of the RF), as well as in the use of vindication and compensation of losses to protect the rights of victims of such crimes. Civil law defense of the rights of victims of theft and fraud (the use of such methods of protection as vindication and compensation of losses) encounters the ambiguous position of courts because the doctrine incorporates disputable and unsettled issues regarding the methods of protecting rights. This paper analyzes such problems and presents some ways of solving them. Overcoming the theoretical and practical problems of interaction between civil and criminal law is of vital importance because it is a vital precondition for the efficient functioning of the law enforcement system as a whole when implementing various forms and methods of protecting the rights of people.

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In modern realities, when Russia seeks to build a rule-of-law state and a developed civil society, the theoretical and methodological foundations of the direct operation of the Constitution require scientific substantiation and development. In addition, this issue is especially relevant for the Russian state, in which constitutional norms for a long time did not play the role of real legal regulators. Moreover, this kind of practice was typical of most states that, following the Russian Federation, established in their texts language on the direct action of constitutional norms (Ukraine, Tajikistan, Kazakhstan). The article is devoted to the problem of the direct effect of the Constitution of the Russian Federation. The author clarifies the meaning of this terminological turnover and assigns it to the dynamic properties of the Basic Law, which becomes in demand in the process of implementing constitutional and legal regulations. Particular attention is paid to the activities of the Constitutional Court of Russia in the sphere of providing direct action to the Constitution of the Russian Federation, its legal positions. In the end, it is concluded that with the help of the Court's legal positions it is possible to ensure the dynamics of constitutional norms without changing the text of the Basic Law.DOI 10.14258/izvasu(2018)3-18

Analisis Faktor yang mempengaruhi tidak adanya Perkara Ekonomi Syariah masuk di Pengadilan Agama Singaraja

ABSTRACTBy a implementation of Law No.3, 2006 which is a revision of Law No.7, 1989 concerns with Religious Courts which is reinforced by Constitutional Court decision Number : 93/PUU- X/2012, on 29 Agustus 2013 judicial review cases toward a regulation section 55, article 2 of Law no 21, 2008 about Sharia Banking, it means that the position of Religious Courts increasingly strong and clear. This is in line with the increasing absolute authority of Religious Courts, especially in handling sharia economic cases.The authority of the Religious Courts in the field of Islamic economics already covers the entire field of sharia economy and business activities of sharia economy, which basically was born because of a contract or agreement based on sharia principles.Singaraja which is the capital of Buleleng Regency is located at Ujung Utara Island Bali Province whose majority of the population is Hindu and their economic activity uses sharia akad, or it is often mixed between sharia system with local legal culture of Singaraja people who tend to avoid contact with law and court so that it is rarely even there is no issue concerning with sharia economy into the Religious Court of Singaraja.Nevertheless, the Religious Court of Singaraja must prepare itself by building a reliable and professional human resources if the case of sharia economic will be entered anytime there. Keywords: Authority of Religious Courts and Issues of Sharia Economics in minority areas

Dissent Aversion and Sequential Voting in the Brazilian Supreme Court

The literature on judicial behavior indicates that dissent is costly to the individual judge, for it means an increased workload and the incurrence of reputational costs. This observation leads to the concept of dissent aversion, which is the notion that judges may refrain from dissenting, even though they disagree with the court's position, in order to avoid those costs. In this article, I explore the fact that voting at the Brazilian Supreme Court is sequential, and that this sequence varies in almost every single case, to generate a quasi‐experiment that allows for a clearer identification of dissent aversion than is found in other contexts. The main idea is that after a majority has been formed, the justices who vote in sequence know that their votes cannot change the outcome of the case. Hence, they may deviate from their preferred votes and join the majority to avoid the costs of dissenting. Using a unique dataset with vote‐level data of all abstract review cases heard by the full Court from 1990 until 2015, this study finds strong evidence of dissent aversion in the Brazilian Supreme Court. Judges who vote after the pivotal judge are significantly less likely to dissent.

MILITARY ARTICLE AND “BRIEF IMAGE OF PROCESSES AND JUDICIAL TRIALS” AS THE BASIS FOR THE ADMINISTRATION OF JUSTICE IN THE RUSSIAN ARMY IN THE 18th CENTURY

The article is devoted to the study of the problematic issues of the origin, formation and functioning of the first military-criminal and the first militaryprocedural codes: Military Article and “Brief Image of Processes and Judicial Trials”. The codes analyzed in the article became the most important normative legal acts of the military-criminal and militaryprocedural legislation of Peter I. The Russian army and the military-judicial system acquired legislation developed at the highest legal level. An attempt has been made to establish the normative sources that formed the basis for the creation of the Military Article and “Brief Image of Processes and Judicial Trials” as well as to identify the goals and tasks that were set by the legislator in drafting the described codes of conduct for military personnel in Russia. The paper gives a brief description of the Military and Admiralty Colleges created on December 15, 1717, which from the very beginning were not only central government bodies, but also the institutions of justice. So, as the bodies of justice, these colleges were audit-decisionmaking structures in relation to the military-judicial organs of the first level - krigsrehtes, so the Military and Admiralty Colleges occupied the position of second-degree courts. The analysis of the mixed military-civil judicial presence, formed in connection with the conduct in the late 1710’s - the first half of the 1720’s large-scale tax reform, as a result of which military units were placed “on perpetual apartments” in rural areas. The provisions regulating the activities of the military justice, which were fixed in the “Poster on Collection of Cap and Other Matters” and “On the Position of Colonel” of November 6, 1724. The example of specific military criminal trials shows the activities of military courts (krigsrehtes), discipline and law and order in the troops.

The False Promise of Constitutional Pluralism

The paper argues that constitutional pluralism has insufficiently taken into account democratic concerns about the institutional position of national constitutional courts. Pluralists accept constitutional disagreement between the EU and its Member States, but on this basis generally see the possible constitutional conflict generated by national constitutional courts as fruitful. The articulation of national constitutional limits to the primacy of EU law is valued, because it opens a space for contestation or dialogue that is preferable over the rigid hierarchy imposed by EU law. The paper argues why such constitutional disagreements are better addressed in a democratic political process. Yet, where constitutional courts articulate constitutional limits to European integration they are likely to constrain political institutions in addressing constitutional questions themselves. Constitutional pluralism therefore presents a false promise: It promises a more legitimate way to resolve constitutional disagreements than its hierarchical alternatives, yet it will often lead to the opposite.

ABOUT THE NATURE, CONCEPT AND LIMITS OF CRIMINAL JUSTICE

The definition of the essence and content of justice is one of the actual problems of domestic legal science. The notion of justice remains debatable, including in the area of criminal procedure. The question of what actions and decisions of the court are covered by the definition “criminal justice” is not only theoretical and doctrinal, but also methodological and practical importance for criminal proceedings. There is the essence of criminal justice reveals and definition of criminal justice formulates in this article. Author considers the existing views on the limits of criminal justice in science, reveals the essence of two opposite approaches: giving justice a narrow and broad meanings. Further in the article the author criticizes the limited (narrow) interpretation of criminal justice and argues its insolvency, based on the actual role of the judiciary in modern society and in the state-legal system of Russia. The analysis of the current legislation and legal positions of supreme courts of the Russian Federation allows the author to conclude that there are legal grounds for giving the concept of “criminal justice” wide significance and inclusion in it not only activities for the consideration of the criminal case, implying the decision of the question of guilt, responsibility and punishment of the accused, but also the resolution of other legal issues raised before the court in cases of judicial control and at the stage of execution of punishment. At the end of the article, in order to continue a comprehensive study of the limits (borders) of criminal justice, it is proposed to apply the criteria for classifying different types and forms of judicial activity as criminal justice, and as such criteria to use universally recognized signs of justice. The author devotes to this comparative analysis his following article “Signs and limits of criminal justice