Law Doctrine Research Articles

Public administration bodies in the sphere of health protection of Ukraine

Purpose. The purpose of the work is to study the current state of the activities of state bodies, which, according to their functional powers, are called to ensure the fulfillment of state tasks in the field of health care of Ukraine. Methodology. The methodology includes a comprehensive analysis and generalization of the available scientific and theoretical material and the formulation of relevant conclusions and recommendations. During the research, the following methods of scientific knowledge were used: logical-semantic, comparative-legal, system-structural and statistical, analysis and synthesis. The results. In the process of research, the system of public administration bodies in the sphere of health care of Ukraine is outlined. The author emphasizes that among a significant number of public and private law bodies which are designed to ensure the realization of the right of citizens to healthcare in Ukraine, the key subjects of administrative and legal regulation of relations in the healthcare sector are executive authorities and their officials. Without diminishing the role of private law entities, it is worth emphasizing that it is the executive authorities, as public law entities, which are entrusted with the main tasks of ensuring and practical implementation of administrative and legal regulation of the citizen’s right to healthcare. The author emphasizes that a significant number of subjects of administrative law can be attributed to public administration bodies in the field of healthcare in Ukraine. The author emphasizes that in the doctrine of administrative law, in addition to the category of “public administration”, such categories as “public management” and “public administration” are used, and there are also different points of view regarding their definition and correlation. The author analyzes the scientific opinions on the category of “public administration” and the activities of public administration entities in the healthcare sector. Bodies of special sectoral competence have been established, as well as the fact that the State Service of Ukraine for Food Safety and Consumer Protection is an interdisciplinary subject of public administration in the field of health care. Practical significance. The results of the study can be used in the scientific and research field – as a basis for further research related to the improvement of the activities of public administration bodies in the field of health care, in law enforcement activities – to improve the practical activities of subjects ensuring the implementation of the right to health care.

On the issue of the concept of a single continuous violent sexual crime

The subject of the research is the issue of identifying the key features of a single continuing violent sexual crime and its distinction from the aggregate of such crimes. The relevance of this issue is related to its controversial nature both in the doctrine of criminal law and in law enforcement. In this regard, such characteristics as identification of the act and of intent are considered, including in relation to violent sexual crimes. The attempt is made to resolve this problem taking into account the position of the Criminal Court of the Russian Federation as well as current trends in law enforcement practice. This issue is considered on the basis of a comparative-law and systemic analysis of the provisions of criminal law that establish criminal liability for sexual freedom crimes. During the analysis of the problem, the concept of a single continuing violent crime against sexual freedom has been developed, as well as criteria for distinguishing it from the similar crimes. The research has led to a reasonable conclusion that different sexual crimes should be grouped under one legal provision. This provision must include such qualifying key feature as committing such actions against two or more persons, regardless of their age. As a result of the conducted research, reasonable conclusions were made about the necessity of combining violent sexual crimes, currently provided for by Articles 131 and 132 of the Criminal Code of the Russian Federation, into one article of the Criminal Code of the Russian Federation and adding to it such a qualifying feature as the commission of these acts in relation to two or more victims, regardless of their age.

Danish Digital Design and the Gradual Erosion of Technology Neutral Administrative Law

Purpose: Holding pole position in the digital race, Denmark is an EU member state that not only has inherent incentives for self-scrutiny to avoid digital hybris but also serves as an inspiration for other countries aiming to move into the fast lane of digital designs. In the wake of strong digitization within Danish public administration, a fundamental legal question arises: does digitization change the core content of general administrative law? Against this backdrop, the purpose of this article is to examine the existing Danish doctrine of technology neutral law, which asserts that digitization does not interfere with substantive law and does not negatively affect citizens’ rights.Approach: The article establishes a discussion based on relevant sources of law such as the Danish political agreement on digitally ready legislation, examples of sectoral legislation (parts of Danish tax law), and the practices and recommendations of the influential Danish Parliamentary Ombudsman.Findings: The article’s conceptual finding is that the doctrine of technology neutral law is not fully justified. In 2024, Danish legislation is increasingly designed to be digitally compatible from the very beginning, which is a significant shift. This new legislative concept has been named digitally ready legislation (digital by design), denoting legislation that is ready and “pre-cooked” in its phrasing and concepts to be transformed into subsequent digital solutions. Another finding of the article is that the proactive digital focus of the new regulation (acts and general administrative regulation) may come at a cost, potentially reducing the flexibility and adaptive quality of regulatory templates that are crucial to the rule of law.Practical Implications: The article aims at identifying the practical – and possibly negative – implications inherent in digitally ready legislation. To this end, it explores various rule-of-law and legal certainty scenarios. A key challenge is to strike a fair balance between regulation with an open-ended and discretionary design and close-ended rule-based frameworks relying on objective criteria. While pushing the agenda of digitally ready legislation brings clear benefits for administrative efficiency and promotes equal treatment across sectors, and although Denmark consistently ranks in the top end of the digital class in Europe, the ongoing digital reform also presents certain issues. Arguably, the reform may represent a drawback towards a more simplified legal geometry that does not fully accommodate the diversity of citizens and enterprises subject to Danish law. As the notion of technology neutral administrative law is gradually eroding, this article calls for a more reality-based discussion about the level of citizens’ rights vis-à-vis public authorities. Administrative law itself may need to be re-designed and made more rule-of-law ready. Value: The article offers a reflective, rule-of-law-based commentary on the ongoing strong political push for digitally ready Danish legislation.

Certain aspects of seizure and cancellation of property in criminal proceedings

The subject matter of this article is the analysis of the procedure for imposing and lifting the seizure of property in criminal proceedings, which is considered with due regard to the current provisions of the Criminal Procedure Code of Ukraine. Although the issue of seizure of property is given quite a lot of attention in the national doctrine of criminal procedure law, the author in the course of the analysis highlights the currently controversial provisions relating to the regulation of the procedure for imposing and revoking the seizure of property in criminal proceedings and analyzes the court’s conclusions regarding the interpretation of problematic issues in the course of law enforcement, and examines the general approaches to seizure of property in criminal proceedings through the prism of the European Court of Human Rights (hereinafter – ECHR) case law. Among other things, the author examines the issues related to the procedural powers of special subjects of criminal proceedings (Director of the National Anti-Corruption Bureau of Ukraine/deputy Director, Director of the Bureau of Economic Security of Ukraine/deputy Director) in specific cases determined by the criminal procedure law. At the same time, the author demonstrates that there are gaps in the current version of the Criminal Procedure Law in terms of regulating the powers of special subjects of criminal proceedings with regard to preliminary seizure of property without a court order, and also proposes amendments to the relevant article of the CPC of Ukraine with a view to bringing the provisions of the law in line with the general principles and purpose of criminal proceedings. Particular emphasis is placed on the issues related to the imposition and cancellation of seizure of property of a third party whose property is being considered in criminal proceedings, the status of which is regulated by Article 642 of the CPC of Ukraine. The author proposes amendments and additions to the Criminal Procedure Code of Ukraine aimed at improving the procedures for seizure of property and ensuring the rights and legitimate interests of persons who do not have status in criminal proceedings and whose property becomes subject to seizure during the pre-trial investigation.

Minor theft committed from oil, oil product and gas pipelines

Relevance. The article deals with the issues of insignificance of the act, stipulated by item. "b" part 3 part 3 of article 158 of the Criminal Code of the Russian Federation. The grounds and conditions of the grounds and conditions of insignificance of thefts. On the basis of the study of judicial practice are outlined peculiarities of application of the provisions on insignificance to theft of hydrocarbon raw materials from the pipeline raw materials.Purpose: to study the possibility and conditions of applying the provisions of part 2 of article 14 of the Criminal Code of the Russian Federation to the theft committed from an oil pipeline to theft committed from an oil pipeline, oil product pipeline and gas pipeline (item "b", part 3, article 158 of the Criminal Code of the Russian Federation).Objectives: study and identification of conditions of application of insignificance of a deed to the theft from pipelines on the basis of analysis of modern judicial practice and provisions of doctrine of criminal law. Methodology. The methodological basis of the study was the general dialectical method of scientific cognition. of scientific cognition. The author used such private methods as: Formal-legal, sociological and method of legal modelling.Results. The authors analyzed and summarized the conditions, distinguished in the theory of criminal law, under which a specific socially dangerous act can be recognized as insignificant and projected on theft committed from an oil pipeline, petroleum product pipeline, petroleum product pipeline. oil, oil product and gas pipelines, and studied the materials of materials of judicial and investigative practice on the termination of criminal cases on theft of raw materials from the thefts of raw materials from pipelines due to insignificance, the author's conditional criteria were singled out criteria under which the theft of oil, oil products or gas can be considered a low-value act. as an insignificant act.Conclusion: the individual danger of a specific fact of theft from pipelines in some situations may not correspond to the level of criminal danger, which the legislator has laid down in the relevant act as a result of its criminalization. The conducted research allows us to determine the approximate mandatory and optional signs for recognizing theft from pipelines as insignificant.

Consumer Protection From Default Of Sharia Housing Developer Agreement

Consumers frequently face issues with defaults on housing agreements, often driven by attractive low prices and developers leveraging sharia concepts. PT Fimadani Graha Mandiri (FGM), based in Bekasi, exemplifies this trend, utilizing Binding Sale and Purchase Agreements (Akad Istishna) and Sale and Purchase Agreements on Credit and Installments (Al-Bay' Bi Ad-Dayn Wa Bi At-Taqsith). These agreements delineate the rights and obligations of both developers and consumers. This study aims to analyze consumer protection within these agreements, focusing on safeguarding consumers against developer defaults and examining legal protections in consumer default lawsuits. Employing a doctrinal law method, the research synthesizes relevant rules, principles, and norms. Findings indicate that consumer protection mechanisms in these agreements include the right to accurate information, the ability to select products according to personal preferences, compensation for discrepancies in specifications, and timely delivery of housing. However, the effectiveness of consumer protection in judicial outcomes remains suboptimal. In several cases, PT FGM has denied compensation and refunds, citing a lack of funds and assets. Consequently, consumers face challenges in executing legal claims due to the inability to ascertain the company's assets. This analysis underscores the need for enhanced consumer protections and more effective judicial remedies to address defaults in housing agreements.

Transformation of the science of Information Law and information legislation: a new stage in the conditions of scientific and technological development of Russia

The authors of the article analyze the current trends in the development of the doctrine of Information Law and information legislation in the context of updated tasks for the scientific and technological development of the Russian Federation. It is noted that in the context of the development of an information society based on the digital economy and the data economy, the transformation of law is taking place, which is largely facilitated by the active evolution of Information Law, the expansion of its subject due to the rapid formation of digital law as a basic institution (an emerging sub-sector) responsible for the features of legal provision of information processes and phenomena in digital form. It is within the framework of this industry that legal support for the digitalization of society takes place both at the expense of basic information and legal norms governing the basic provisions (principles of regulation of digital relations, the regime of digital data and other objects of the digital environment, the legal status of subjects of the digital environment, as well as other legal aspects that reflect the essence of the digital form, the application of which is universal and can be applied in law in general), as well as through industry-specific digital norms developed and adopted within a particular branch of law, reflecting the specifics of the implementation of digital processes in relation to a specific area of public relations, regulated by the relevant branch of law. The main directions of scientific and technological development and the tasks of Information Law are also studied. The authors note that the scientific and technological development of Russia today is based on a number of principles that are important to take into account in the development of information legislation and the science of Information Law. Modern information processes and technologies directly permeate and ensure the functioning of all priority areas of scientific and technological development and are part of or ensure the application of all the most important high-tech technologies. In this regard, it is important to work out and consolidate at the theoretical level in information legislation mechanisms that contribute to the effective implementation of the accelerated development and introduction of these important knowledge-intensive technologies into the economy, including within the framework of national projects to ensure technological leadership. As a result of the analysis of critical and end-to-end technologies, it was revealed that the main emphasis in the development of information legislation and the doctrine of Information Law should be placed on the formation of models for regulating the use of artificial intelligence technologies in economic sectors, the social sphere (including the sphere of public safety) and in public authorities, including the development of regulation of robotics, as well as microelectronics technologies and photonics for information storage, processing, transmission and protection systems, technologies of secure quantum data transmission systems. The authors draw a number of conclusions about the development of the principles of regulation of artificial intelligence, as well as the prospects for the development of legal regulation of the field of robotics. The analysis is given of the discussed problems of Information Law at the Seventh Bachilov Readings, held in 2024 at the Institute of State and Law of the Russian Academy of Sciences.

Reflection on the Philosophical-Historical Roots of the Crisis in Western International Law Thinking

International Law appears to have lost both its possible civilizational foundations — the Greco-Roman/Christian doctrine of natural law and the contract theory, based on the “Humanist” confidence in the creative potential of individual will. In practice International Law — as it continues to exist — consists of either contractual arrangements among two or more States, or unilateral assertions of will by individual States, usually contested by other States. In this sense, International Law has become privatised, a matter of duelling individual perspectives, with no ontologically objective environment within which “warring” individuals can be embedded. This is the context in which the so-called Lauterpacht approach to International Law arises. It claims that the application of private law analogies should be suitable for international legal decision-making. Legal analysis and judgement then becomes a matter of weighing up the force of two or more competing wills. Another problem is that the social contract theory prioritises the striving for security as the central human characteristic. The legal discourse closes itself off from alternatives capable of questioning this idea. For one possibility, the idea that world society is a natural family of Nations is excluded. The new goal of the social contract, after the Great Depression and World War II, was to establish a liberal order wherein human opportunities would be significantly expanded and universal prosperity would be guaranteed. The basic tenet of liberalism is the dismantlement of the State, which is supposed to be the form through which individuals participate in their own governance. As this State retreats, private economic interests, regulated only by private law, if at all, take precedence. So, the long pathway from the 17th century confidence in the humanist construction of the State through the social contract of free and equal individuals ends up at present in a critical breakdown of order, where an antinomian spirit prevails at all levels of society, domestic, transnational and international. This diagnostic exercise offers no solution, although it does indicate obstacles which could, conceivably, be overcome.

Advocating for environmental law – grounds for its status as an independent branch of law in Slovak legal doctrine

The article traces the historical development of environmental regulation in Czechoslovakia, and subsequently Slovakia, highlighting the transition from fragmented legal frameworks to comprehensivelegislation, notably Act no. 17/1992 Coll. on Environment. It explores theoretical debates on whether environmental law constitutes an independent legal branch, examining criteria, such as subject matter, objectives, distinct principles, regulatory methods, and international dimensions. While advocating for environmental law’s recognition as a distinct branch, the article acknowledges ongoing debates and emphasizes the need for continued inquiry to reach consensus. Overall, it provides insights into environmental law’s evolution, challenges, and potential role within legal theory and practice.

Arbitrability of Corporate Disputes in Foreign Doctrine and Foreign Legal Systems

According to the current doctrine of civil law, the subject of law independently exercises civil rights, including the right to judicial protection. The choice of the form of protection is provided to the person whose rights have been violated, and this can also be attributed to the preliminary agreement of the parties to the corporate dispute. It should be noted that due to the length and inefficiency of judicial procedures, more and more attention has recently been paid to issues of alternative dispute resolution. In this regard, the out-of-court form of resolving corporate disputes is of particular interest. Due to the heavy workload of national courts, the issue of out-of-court dispute resolution is becoming increasingly important. At the same time, arbitration is considered a traditional method of resolving disputes even in Roman law. One of the controversial and legally unresolved issues in the theory of arbitration is the possibility of arbitration of disputes. The problem lies not only in the legislative definition of the term “arbitrability”, but also in the lack of clear standards regarding the arbitrability/ non-arbitrability of disputes. The need to study arbitrability is also due to the formation of an ambiguous position in the theory of arbitrability of disputes, including issues of company relationships. Thus, it can be concluded that the principle of arbitrability does not allow for sufficient answers to the question of the arbitrability of disputes with corporate elements. Thus, the need for scientific understanding of the theoretical foundations and the formation of a strong institution of arbitration and a theoretically sound concept of arbitrability both in theory and in practice determined the relevance of the research topic. Keywords: arbitrability, arbitration, corporate dispute, arbitration agreement, non-arbitrability.

Criminal Procedure Law Doctrine in China: History, Questions, and Reflections

本文旨在深入探讨法教义学在刑事诉讼法学中的知识解构、知识体系和价值评判，并为其他部门法的教义学研究提供借鉴。通过文献分析法，结合规范研究方法和实证研究方法，揭示了刑事诉讼法学理论研究也开始面临着在法教义学与法解释学以及社科法学之间的博弈。研究发现，刑事诉讼法学与法教义学之间具有密不可分性，法教义学作为立体性的方法论研究，对研究部门法学具有现实意义。在此基础上，本研究对刑事诉讼法教义学的建议，包括刑事诉讼的证明模式、强化法解释学与法教义学之间加强沟通联系以及彼此之间的跨学科探讨，以推动刑事诉讼法教义学在中国的完善和发展。这些发现对深化理解刑事诉讼法教义学今后进一步发展，提升刑事诉讼法教义学的科学研判性具有深远意义。

Europe’s legal revolution and France’s Article 49-3: the constitutional audacity of Robert Lecourt

Abstract The European Legal order, created by the European Court of Justice [ECJ], is an astonishingly effective treaty enforcement system. Previous explanations of its ‘transnational’ or ‘constitutional’ development have focused on the politics of judicial networks, and the wider political and economic context of postwar European democracy. Judicial biography has been almost entirely overlooked, even in the case of Robert Lecourt, widely acknowledged as the leading judge in the Court’s revolutionary period. Unknown to research on the ECJ, however, Lecourt had already spearheaded the adoption of the famous Article 49-3 of France’s 1958 Constitution. This paper demonstrates that the constitutional doctrines of European law and Article 49-3 were in fact premised on a similar ideology, that the pursuit of ‘effectiveness’ may require unprecedented restrictions on the traditional law-making role of national parliaments. Those were the constitutional values of the judge that, more than any other, built the foundations of the European legal order.

Giving Effect to Freedom of Religion through the Advancement of Religion? A New Zealand Charity Law Perspective

Abstract The legal frameworks of the human right to freedom of religion and the charity law doctrine of the advancement of religion sit at opposite ends of the legal scale by virtue, inter alia, of the former being a right that protects against a social injustice and the latter being a discretionary benefit bestowed upon beneficiaries and even that discretionary benefit is governed by stringent charity law principles. Consequently, it may be seen that the discretionary benefits bestowed by the advancement of religion might be at odds to the right to freedom of religion. As a result, this article considers whether the advancement of religion can give effect to the freedom of religion, and if not, whether any such limitations may be justified in a democratic society. Thus, this article explores a number of key legal issues pertaining to religion through the charity law lens from a New Zealand perspective, and in doing so, sheds some light on the relationship between the freedom of religion and the advancement of religion.

Compensation of payment of a penalty for improper performance (non-performance) of the duties by the parties to legal services supply agreement

The article is focused on the problem of compensation of payment of a penalty for improper performance (non-performance) of the duties by the parties to legal services supply agreement. The author has indicated that the protection of the rights and interests of the subjects of civil relations, in accordance with the requirements of paragraphs 8, 9 of Part 2 of the Art. 16, paragraphs 3, 4 of Part 1 of the Art. 611 of the Civil Code of Ukraine, can be carried out by means of compensation of damage and other methods of compensation for property damage, compensation for moral (non­property) harm and award of a penalty. The analysis of case-law shows that compensation of damage by customers of legal services, along with termination of contracts, is ranked first within the structure of judicial protection methods in obligations to provide legal services. Talking about the compensation for moral harm and award of a penalty, such methods of protection are applied extremely rarely. Accordingly, the author believes that the problem of the responsibility of a provider of legal services, in particular the matter of classification of the appropriateness (or, on the contrary, inappropriateness) of performing own duties by this party of the obligation, causes the most problematic issues both from the point of view of the doctrine of civil law and legal enforcement practice The author of the article has noted the possibility of applying a penalty for such types of offenses as delay in fulfilling the main obligation (delay in providing a legal service per se) and delay in returning funds to a customer. The legislation of Ukraine does not provide the possibility to apply a penalty in relation to improper (low-quality) service provision. Therefore, if a provider began to provide legal services in time, but provided them improperly, then the application of a penalty (fine) to his illegal behavior will be possible only if the contract concluded between the provider and the customer of legal services specifically stipulates a relevant term. Taking into account the known advantages in the position of legal services’ providers regarding certain dictates of contractual terms at the stage of concluding contracts, such a penalty clause is unlikely to appear in such contracts. The difficulty of applying this type of a penalty is also explained by the problem of determining the criteria for assessing the quality of legal services’ provision. As we have noted, there are no such clear criteria. Therefore, the application of a penalty (fine) for the “low-quality” legal service fulfilled by the provider is also complicated by objective reasons. The author has substantiated the provisions that the composing elements of an offense are required in order to apply a penalty in legal relations on supplying legal services. In contrast to compensation of damage, lesser form of an offense is sufficient for awarding a penalty: wrongfulness of the performer’s behavior and his guilt. In order to avoid unnecessary repetition, we step aside from studying these aspects, since they are sufficiently thoroughly researched in the material of this subsection on compensation of damage.

Peculiarities of the legislative model of the criminal law prohibition of smuggling

The article is devoted to the study of the peculiarities of the legislative model of criminal prohibition of smuggling. It is stated that the emergence of new and modernization of existing methods of smuggling is due to the correlation of the State’s customs policy in connection with the full-scale invasion of the Russian Federation and the introduction of the legal regime of martial law. The purpose of this article is to provide a systematic analysis of the amendments and additions made to Section VII of the Special Part of the Criminal Code of Ukraine in terms of criminalization of smuggling, to determine their effectiveness and expediency, and to formulate scientifically sound recommendations for improving criminal law regulation of social relations related to smuggling. The author establishes that the main factors which influenced the process of recriminalization of commodity smuggling are: an increase in the number of manifestations of smuggling of goods and their unreliable declaration; a decrease in revenues to the State Budget of Ukraine; stimulation of unfair competition; entry of products of inadequate quality into the domestic market; an increase in the shadow economy in the public sector; criminalization of smuggling of goods in certain EU countries; ineffective application of administrative liability measures. The author analyzes the need to strengthen criminal liability for commodity smuggling at the level of the European Union as a whole. The author elucidates the approaches available in the criminal law doctrine to solving the problems associated with the introduction of criminal liability for commodity smuggling. It is substantiated that in case of any change in the system of current criminal legislation, it is necessary to justify this type of rulemaking, i.e. to assess the admissibility and appropriateness of a criminal law novelty. The author emphasizes that it is inexpedient to distinguish criminal law provisions on smuggling by the type of subject matter. The author concludes that the model of criminal legal prohibition of smuggling chosen by the legislator determines the differentiation of criminal liability, and at the same time is a manifestation of the shortcomings of legislative technique, since it gives rise to the emergence of legislative models of smuggling with different objects of criminal legal protection.

Specific features of defining inheritance as escheated within civil law doctrine and legal enforcement practice

The author has studied the problem of escheated inheritance. The problematic aspect of this legal phenomenon is also stipulated by the lack of its legislative definition, disputes in regard to the legal nature of relations of escheated inheritance. The relevance of this problem is evidenced by the fact that it is appropriate to assume an increase in objects of escheated property in terms of the martial law and post-war reconstruction due to inability of lawful heirs to accept inheritance (death as a result of hostilities, leaving the country for permanent residence in other states, etc.), destruction and damage of property. Therefore, the registration procedure and usage of escheated property at the level of territorial communities may be revised in terms of the martial law. It has been noted in the paper that escheated inheritance cannot be considered as hereditary and legal definition by its legal nature, because: it is based on the obligation, but not on the right to accept inheritance; its purpose is to satisfy the public interest in maintaining the stability of property relations in society; it is legal succession. The author has proved that the construction of interest in the system of legal relations of escheated inheritance is complex and combines public (social) and economic (property) interests. Public (social) interest consists in preserving the stability of property relations in society. Economic (property) interest has a public and private orientation, in particular, it satisfies the interests of the territorial community, both an acquirer of the ownership right and a creditor regarding the satisfaction of an ancestor’s obligations at the expense of escheated property. At the same time, a public entity assumes the burden of the ancestor’s obligations sometimes not in own interests, but in order to satisfy the stability of property relations in society. The procedure of recognizing inheritance as escheated has the following stages: detection of escheated property, in particular from reports of neighbors, from the authority in charge of the residential stock; examination of discovered property, whereat a formal note is taken; collection of information regarding the status of escheated property; in case of establishing the fact of damage (destruction), the commission puts forward a proposal to terminate the ownership right to such an object; preparation of a claim to the court on defining inheritance as escheated and transfer of property to communal ownership; hearing the case according to the rules of a separate proceeding; adoption of a court judgement on transfering escheated inheritance to communal ownership; the decision of the local self-government agency’s session on the acquisition of the right of communal ownership of escheated property; state registration of property for the relevant territorial community; maintenance and use of escheated property.

The Doctrine of Natural Law as the Ideology of the Western Legal Tradition

The Doctrine of Natural Law as the Ideology of the Western Legal Tradition

Lawsuit as a means of protecting violated rights in administrative proceedings

The article is dedicated to the study of a lawsuit as a means of protecting violated rights in administrative proceedings. Considering the amendments to the legislation, the issue of the significance of a lawsuit in the context of protecting violated rights in administrative proceedings has become increasingly relevant. Under the previous version of the Code of Administrative Procedure of Ukraine, a lawsuit was the foundational document, without which the protection of violated rights in administrative proceedings would be nearly impossible. It has been demonstrated that the current version of the Code of Administrative Procedure of Ukraine has significantly detailed the right to apply to the court, particularly regarding the potential application of remedies by the court. A lawsuit, serving as the basis for initiating proceedings, addressing the case on its merits, and rendering a court decision, is a crucial tool in raising the question of whether the administrative court should apply remedies to protect violated rights. Simultaneously, the administrative law doctrine posits that an administrative lawsuit itself should be viewed as a means of protecting violated rights. The author observes that doctrinal provisions, grounded in the current administrative procedure law and supported by an analysis of administrative court practice, indicate that an administrative lawsuit significantly influences the activities of an administrative court, particularly in its application of remedies to protect violated rights. Furthermore, some scholarly sources add that the importance of a lawsuit lies in its ability to guide the court’s actions and provide individuals with appropriate guarantees. The author emphasizes that these doctrinal principles align fully with the provisions of the Code of Administrative Procedure of Ukraine, which is considered a conceptually comprehensive procedural document.

Unjust enrichment in law and equity

In Moses v Macferlan, Lord Mansfield used money had and received, a common law money count, to provide relief in a case where an action’s outcome failed to align with the actor’s intention. In the First Restatement of Restitution, Warren Seavey and Austin Scott gathered together all cases, quasi-contractual and equitable, under the single principle that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ These two influential acts of fusion between common law and equity have caused a great deal of confusion in the scholarship and jurisprudence on unjust enrichment. With the fundamental differences between quasi-contract and equitable unjust enrichment obscured, scholars and judges have struggled to find the single principle or core case that unifies liability in what is now called the law of unjust enrichment. I argue that we can resolve the puzzles of unjust enrichment by rejecting the fusionist claims that started them all – that is, by distinguishing cases of quasi-contract (the common law money counts) from cases of equitable unjust enrichment – and by recognizing that each has a distinctive normative foundation. Quasi-contract, like other common law doctrines, is grounded in respect for the freedom and equality of agents conceived as beings with the capacity for free choice. Quasi-contract is concerned with the objective significance of external acts like requests and agreements on terms; it is not concerned with the frustration of the plaintiff’s particular purpose in acting. Equitable unjust enrichment, like other equitable doctrines that attend to mistakes, expectations, and intentions, is grounded in concern for individual autonomy. It recognizes that a court, as a public institution attuned to law’s self-imposability, cannot enforce an alienation of property with indifference to the way in which it may fail as an expression of the individual’s purposes and reasons for action.

Problems of applying incentives in civil law

The article notes that incentives are rarely used in civil law due to both objective and subjective reasons. The objective reason is the peculiarities of the law-regulatory methodology of civil law itself, but they are not an obstacle to the use of incentives in civil law. The specifics of the civil law methodology only determine a certain secondary importance of incentives as legal means of regulating civil relations, but do not exclude the possibility and necessity of their application in general. The subjective reasons are the lack of sufficiently developed general provisions in the civil law doctrine and the lack of provisions of similar content in civil law. Elimination of the latter two subjective obstacles will in the future allow intensifying the use of incentives in the self-regulation of civil relations. Based on the principles of freedom of contract and freedom of unilateral transactions, civil law subjects are free to choose the methods of regulating their relations. This freedom also applies to their choice of incentives as legal means of regulating their individual relations. Increased use of incentives in civil law should be expected primarily in self-regulatory relations. The advantage of using incentives, as compared to the methods of ensuring proper performance of obligations (pledge, surety, retention, etc.), as well as measures of civil liability or other legal consequences, is that incentives are positive sanctions by their nature, i.e. a reward for making maximum efforts to achieve a certain legal result by the subject. This circumstance allows the parties to contractual legal relations to strengthen their ties and create an atmosphere of trust rather than suspicion. This is especially important for contractual relations in the business sector, where the duration of economic and legal relations is one of the determining factors of business success. The use of methods to ensure the proper fulfilment of contractual obligations, and even more so, measures of liability or other legal consequences for breach of obligations, generates negative tension or even leads to the termination of business relations.