General Principles Of Law Research Articles

On controlling persons of a legal entity as subjects of the use of coercion in russian civil law

This article is devoted to the problem of possibility of applying civil coercion to persons who are not directly violators of someone's rights or legitimate interests, but can influence the behavior of participants in civil legal relations and give them mandatory instructions for execution that are illegal. This is the focus of this exploratory, qualitative research. The highlighted results indicate that based on the general principles of law, these persons cannot remain outside the scope of civil coercion, since this circumstance will contribute to the abuse of rights and violation of the balance of interests of all subjects of civil law.

Конкретизация и толкование норм Конституции РФ 2020 года: теоретические и практические аспекты

The article reveals the specifics of the specification and interpretation of the norms of the Constitution of the Russian Federation in 2020. The author analyzes the factors influencing the interpretation of the content of constitutional norms. The peculiarities of the impact of domestic conditions and international positions on the hierarchy of regulations are revealed. Particular attention is paid to the possibilities of law-making activities in modern Russian conditions. The achievement of legal certainty in the specification of norms is justified by the need to use the general principles of law, constitutional principles and existing norms of the Constitution.

Efficiency of Rules of Law in Regulation of Property Relations in International Commercial Turnover

The article examines the essence and criteria for the effectiveness of the mechanism of legal regulation, the effectiveness of rules of law in international commercial agreements, given the distinction between the concept of «rule of law» as a mandatory rule of conduct adopted and protected by the state, and as a category covering not only certain national legal system, but also various legal regulators of non-national and non-state, international origin. It is established that ensuring the effectiveness of the rule of law is based on the need to achieve social, political, economic and other goals of its adoption, and is guaranteed by the construction of substantively and formally consistent, holistic within the relevant institution or branch of law and logically constructed legal prescription. It is proved that the complexity and variety of sources of legal regulation of international commercial agreements, the choice of the applicable law to which is based in general, indicates the inexpediency of limiting of the understanding of the construct of «rule of law» as exclusively sanctioned and enshrined by the state. In this regard, the thesis is put forward that in law-making activity it is necessary to construct provisions of new legislation on normative-legal acts and rule-making activity with awareness of needs and realities of international business, both Ukrainian and domestically located. Two ways to achieve this goal have been proposed: either by adjusting the proposed definitions of the rule of law or by establishing the scope of meaningful dissemination of the provisions of the future law on law-making activities exclusively within national borders and in relation to the Ukrainian legal system. Also, from the point of view of the effectiveness of legal regulation of international commercial agreements, it is justified that in this regard a broader and more modern understanding of legal norms, giving the parties a guaranteed opportunity to refer to general principles of law, trade customs, lex mercatoria, unified international instruments (for example, the UNIDROIT Principles, INCOTERMS), etc. should be implemented.

ПРИНЦИПИ АДМІНІСТРАТИВНО-ПРАВОВОГО МЕХАНІЗМУ ЗАПОБІГАННЯ БУЛІНГУ В УКРАЇНІ: ПОНЯТТЯ ТА СИСТЕМА

The article defines and analyzes the principles of the administrative and legal mechanism to prevent bullying, to distribute them. The general principles of law, as well as the principles of administrative law are studied. It is indicated that the principles in the system of the administrative and legal mechanism of bullying prevention occupy a decisive place among other elements of the normative-legal block. It is proposed to divide the principles of the administrative-legal mechanism of bullying prevention into two groups: organic and organizational and functional. It is emphasized that organic principles are the fundamental basis and determine the very nature of bullying and the corresponding rights of participants in the educational process, which are violated in its implementation. It is stated that without these principles, in general, it is impossible to talk about the need to ensure the rights and freedoms of participants in the educational process in general and children, as the main category of these participants in particular. It is noted that the organic principles of the administrative and legal mechanism of bullying prevention should include: the principles of equality, non-discrimination, tolerant behavior, ensuring the best interests of the child, zero tolerance for bullying. It is determined that the organizational and functional principles follow from the purpose, purpose and activities of public administration entities and directly affect the implementation of the administrative and legal mechanism to prevent bullying. These include: the principle of priority of ensuring, observing and protecting human and civil rights and freedoms (participants in the educational process), the principle of rule of law, legality, competence, cooperation and interaction, prevention, responsibility, good governance, humanism and justice.

За нуждата от ясен и разбираем правен език. Един пример с осъвременяването на испанския юридически език

The language of law is characterized by some features and peculiarities that make it difficult to understand for non-specialists in the field. The present article focuses on the need for plain legal language in order to guarantee observance of general principles of law, such as equality before the law and legal certainty. The first section deals with the historical and conceptual structure of plain legal language. Then, the paper provides an example of foreign experience in the field with the aim to illustrate the initiatives for modernizing the Spanish legal language which have been carried out in Spain over the last few years.

Non-Retroactivity as a General Principle of Law

This article examines the principle of non-retroactive application of law, which prohibits the application of law to events that took place before the law was introduced. The application of this principle has become particularly controversial as states adopt stricter regulations to tackle climate change with retroactive effect, and investors challenge such regulations before international courts and tribunals. In the context of criminal law, the principle is widespread and has become a binding norm of international law. However, a survey of domestic jurisdictions and decisions of international courts and tribunals shows that that there is no general principle of international law which forbids the retroactive application of administrative law. Despite pronouncements of some international courts and tribunals to the contrary, states can conclude treaties and adopt administrative regulations with retroactive effect to pursue legitimate public policy objectives.

THE PRINCIPLE OF “SELECTED MIGRATION” IN FRS AND THE POSSIBILITIES OF ITS USE IN THE PROCESS OF REGULATING THE RIGHTS OF LABOR MIGRANTS IN THE RUSSIAN FEDERATION

The purpose of the research. The article examines the principle of “selective migration” as a modern pragmatic approach to the regulation of migration processes; analyzed the features of its use in the migration policy of France; the possibilities of using the French experience in the process of regulating migration and the rights of labor migrants in Russia are determined. The article determines that the principle of “selective migration” is aimed at providing national economies with highly qualified labor force, while the countries of the “third world” are currently suppliers of high-quality labor resources, which requires their active involvement in the struggle for minds, abilities and talents. The French experience of using the principle of “selective migration” is analyzed, it is noted that during the twentieth century this principle was transformed, although throughout the history of its development it carried a “pragmatic element” based on the national interests of France. At the same time, the pragmatics of this principle came into conflict with the general principles of law, until at the present stage it acquired the features of a social concept of ensuring the rights of labor migrants, which is enshrined in the relevant documents. The attractive aspects of the French approach, which are “softness” to regulation based on the principle of “selective migration”, are noted, it is determined that the French model can be adapted to modern Russian conditions. Output. As a result of the study, it was determined that the French version of the implementation of the principle of “selective migration” is most consistent with modern socio-economic development and the ability of our country to compete with Western countries in this aspect of migration policy. The article provides a number of recommendations regarding the use of the French experience in regulating migration processes, notes the need to combine the “principle of selective migration” with the protection of the social rights of migrants, which corresponds to the French model.

Keeping up Appearances: May the Law of International Responsibility be construed through the ‘Comparative Law’ Methods?

The article analyses the possible employment of comparative law methodology for the codification, progressive development and the interpretation of the law of international responsibility. It argues that ‘comparative law’ methodology should be used during this process as it would enhance the legitimacy and understanding of the work of the International Law Commission. The use of legal English involves the reference to common law ideas whether it is consciously admitted or not by the users of legal rules drafted in that language. This concept is presented by the reference to the way the language is used in the process of creating and interpreting rules in the area of international responsibility. It also plays an important role during the construction of multicultural internationallegal concepts within that field. Last but not least, the use of ‘comparative law’ seems to be an indispensable apparatus in the codification process in the area of international responsibility consisting of general principles of law and customary law. The ‘comparative law’ methods are invaluable tools for all those who take part in creation of international responsibility rules, as well as their application and interpretation.

The current role of the Court of Justice of the EU in the legal institutional system of the European Uniuon

In this article, we will discuss the role of the ECJ in the EU legal order. The concept of general principles of law is of great importance today for deepening the process of European integration, the formation and development of EU law as a whole. An important role in its development and consolidation lies with the EU Court of Justice. Its consistent practice has led to the formation of the very concept of EU law and the recognition of its general principles. The Court of Justice of the European Union not only models the concept, but also ensures that the general principles of law are respected by all the institutions of the European Communities and the Member States, which in turn contributes to strengthening the legitimacy of the Communities and of the Union and their legal system and, on the other hand, contributes to a more dynamic integration.

On the prohibited methods and means of conducting warfare in the context of modern International humanitarian law and law of international security

This article analyzes the historical-legal peculiarities of establishment and evolution of international humanitarian law and its principles in the context of the general theory of international law and current political situation. Referring to the international legal documents that regulate the rules of conducting warfare and issues of international security, as well as case law, the author describes and systematizes the methods and means of conducting warfare that are classified under restraining and prohibitive regimes. The goal of this research lies in the analysis and systematization of international legal norms aimed at prevention of the use of prohibited methods and means of conducting warfare. The object of this article is the relations between the actors of international law with regards to restrained use of means and method of conducting warfare. The subject is the international conventions, international customs, general principles of law recognized by the civilized nations. The scientific novelty consists in the author’s view of the essence of relevant issues in the sphere of international humanitarian law, establishment and evolution of international humanitarian law in the context of restrained use of methods and means of conducting warfare. The author presents the original systematization and classification of the prohibited methods and means of conducting warfare. The conclusion is made that many disagreements can be solved by responsible compliance with the existing norms of the international humanitarian law that is intended to prevent potential humanitarian risks. The author reveals that the four protocols to one of the fundamental sources of the international humanitarian law – the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (1980) have such significant shortcoming as the absence of control mechanism for compliance with the established prohibitions.

Principles in Modern International Law (Certain Issues of Concept, Nature, Genesis, Substance and Scope)

Principles in Modern International Law (Certain Issues of Concept, Nature, Genesis, Substance and Scope)

연대성의 국제법상 법적지위에 관한 고찰 - 국제법상 법의 일반원칙으로서 연대성 -

연대성의 국제법상 법적지위에 관한 고찰 - 국제법상 법의 일반원칙으로서 연대성 -

Derecho Privado Ambiental a la luz del Código Civil y Comercial

RESUMEN:
 El presente estudio aborda el Código Civil y Comercial de la Argentina (ley 26944), en vigor desde 2015, como una clara expresión de la existencia del Derecho Privado Ambiental, de base constitucional. Al introducir la materia ambiental en el Derecho Privado, produce una suerte de simbiosis: el Código Civil yComercial unificado (Derecho Privado) se impregna de Derecho Ambiental (se “ambientaliza”),y a la inversa, desde la especialidad, el microsistema jurídico, “DerechoAmbiental”, en la parcela que le corresponde, se internaliza en el Derecho Privado (se “privatiza”). El Cód. Civ. y Com. implica una reformulación de la teoría de las fuentes y aplicación (art. 1º), de la interpretación de la ley (art. 2º), de la teoría de los bienes (arts. 15 a 18), de la teoría de los derechos (art. 14), teoría de las normas (arts. 1º, 2º, 3º), del ejercicio de los derechos (arts. 9º y ss.), de la responsabilidad civil por daños (arts. 1708 y ss.), de la teoría de la decisión judicial (art. 3º), entre otros aspectos novedosos. El Cód. Civ. y Com incluye un nuevo paradigma en materia de bienes, al regular aspectos relativos a los bienes colectivos y valores colectivos en referencia a los derechos ambientales, y las comunidades como los pueblos originarios (parte de una sociedad multicultural y declara como principio general del derecho, la buena fe (la lealtad, el obrar transparente), una de las ideas fuerza del derecho ambiental, junto con la solidaridad, la cooperación, y la paz, diseñando un modelo o versión novedosa, de abuso del derecho ambiental, o “ECO- ABUSO” (Sozzo). Por útimo, el artículo 240, la regla de la compatibilidad, entre el ejercicio de los derechos individuales y los derechos de incidencia colectiva, y de no afectación del funcionamiento y sustentabilidad de los ecosistemas, el paisaje, el agua, suelo, agua, flora, biodiversidad, valores culturales, lo que implica un profundo replanteo de las relaciones del hombre y la naturaleza.

Doctrinal Differences in the Definition of the Principles of Public International Law

The ambiguity of scholars' vision of the content of the principles of international law and their corresponding definition in doctrinal discussions can be reduced to two main directions. First, it is a problem of coverage of the concepts of principles of international law of generally accepted principles of law, and, secondly, the problem of limiting the category of principles of public international law to only ten basic principles of international law. These discussions confirm the relevance and urgency of its solution. The general principles of international law, as the inheritance of all mankind, are the result of the development of all legal systems of the world in its legal unity. These principles represent the unity of the general principles of international law, which are inherent only in the international legal system; general principles of law inherent in both national and international legal systems, as the ideological foundations of law; and common principles of national legal systems, which with certain comments can be applied to international legal relations. If we take as a basis Art. 38 of the Statute of the UN ICJ as a conditional list of sources of international law, where generally accepted principles of international law are not provided as such, the interpretation of this article can be imagined as conclusions that the principles of international law as special to general principles of law are norms of international law its reflection in any of the sources of international law, including those, which are unforeseen articles 38 of the Statute of the UN ICJ. The main difference between the principles of international law and general principles of law is that they contain specific rights and obligations for subjects of international law and are directly a regulator of international relations. Such unity can be deduced from the normative interpretation of Art. 38 of the UN Statute, in particular: the sources of enshrining the general principles of international law are customs and international treaties in accordance with paragraph a and paragraph b of Art. 38; the source of the general principles of law is paragraph c of Art. 38 of the Statute of the UN ICJ (general principles of law recognized by civilized nations); the source of identification or the legal basis for the application of the common principles of national law is paragraph d - ex aequo et bono, their application by an international court on the basis of the principle of justice.

Shifting Priorities: Are Attitudes Changing at the International Criminal Court about Trials in absentia?

Abstract A recent decision by the International Criminal Court’s Appeals Chamber in the Gbagbo and Blé Goudé case raised the possibility of a shift away from the long-standing practice of only holding trial in the presence of the accused. The final paragraphs of the 28 May 2020 decision asserts that any future trial proceedings in the Gbagbo et al. case could be held in the absence of the defendants should Mr Gbagbo and Mr Blé Goudé be released from custody and then later fail to appear for trial. This article examines the Appeals Chamber’s decision in light of the Court’s Statute, existing jurisprudence at the icc and within the larger context of international criminal law. It concludes that the Appeals Chamber’s decision fails to properly understand the right to be present at trial as it exists in the Rome Statute nor does it comply with any identified general principle of law.

Shifting Priorities: Are Attitudes Changing at the International Criminal Court about Trials in absentia?

Abstract A recent decision by the International Criminal Court’s Appeals Chamber in the Gbagbo and Blé Goudé case raised the possibility of a shift away from the long-standing practice of only holding trial in the presence of the accused. The final paragraphs of the 28 May 2020 decision asserts that any future trial proceedings in the Gbagbo et al. case could be held in the absence of the defendants should Mr Gbagbo and Mr Blé Goudé be released from custody and then later fail to appear for trial. This article examines the Appeals Chamber’s decision in light of the Court’s Statute, existing jurisprudence at the icc and within the larger context of international criminal law. It concludes that the Appeals Chamber’s decision fails to properly understand the right to be present at trial as it exists in the Rome Statute nor does it comply with any identified general principle of law.

Обеспечение гарантий прав личности и неотъемлемости ее правового статуса в системе правового регулирования

The article is devoted to the analysis of the general principle of law — ensuring guarantees of individual rights and the inalienability of his legal status. According to the author, they are provided by the synergistic action of private and public law regulation. The article convincingly shows that private and public law is a single system of values with different levels of generalization of terms and different methodology. At the same time, it is the private legal mechanisms that are the basis, the core of the rule of law.

Sources of European Union law

EU law is a separate legal framework, different from international law, and integrated into the legal systems of the Member States. The Union's legal framework is based on autonomous legal sources. Different nature of these sources requires the introduction of a hierarchy among them. At the top are the primary law enshrined in the Treaties and the general principles of law followed by international treaties concluded by the Union and by secondary law based on the Treaties.

Human rights in Muslim law: current issues

The article is devoted to the study of the peculiarities of the legal system of Muslim countries. The author analyzes the essence of the concept of human rights and freedoms in Muslim law, as well as comparative characteristics with the Western legal system. The general principles of law in the Muslim system, due to the peculiarities of its historical formation, establish the criteria of conformity of positive law to the values of a particular society, limiting the action of a law to generally accepted moral criteria. It is noted that certain aspects of Sharia have different meanings for followers of Islam and those who do not adhere to this faith. In a ratio religious and secular rules of conduct operate differently. The author points out that in the theory of Muslim law, all people are equal regardless of their social background, skin color or language. It also speaks of the equality of all before the law and the court, but in practice a completely different situation arises. The article analyzes the disrespect for women's rights and the fact that women are essentially unprotected in Islam. It is noted that human rights, which should be universal in nature, were neglected by delegates to the 1993 UN Human Rights Conference in Vienna. In view of this, Islamic society is faced with the question: either Islam and Sharia, or democracy and human rights. At the same time, no explanation was given as to why one should be chosen over the other. The author proposes to gradually incorporate Muslim law into the law of Western countries, but only with respect for the national and cultural peculiarities of the East. It also highlights the importance of developing categories of human rights in the Muslim legal system, taking into account the standards of the Western concept of human rights and conducting a detailed study of Islamic law, rather than simply adding Western notions of natural human rights to Muslim law.

De Klockner a Total: la reivindicación de la aplicación de las fuentes del derecho internacional en el arbitraje internacional de inversión extranjera

This article analyzes the applicability of the sources of international law and the principles of law in international investment arbitration, through the notorious change in point of view of the ICSID foreign investment panels, in matters of applicable law, with a special period of change between 2000 and 2010 between the Wena Hotels (2000-2002) and Total (2010) awards, a trend which extends to the present , in which ICSID arbitral proceedings have increasingly decided to apply to investor-State disputes the different sources of public international law and the general principles of law, both in original proceedings and in annulment proceedings, despite the private instrument. The article analyzes the possibility of applying international law as the main controlling rule in ICSID proceedings, the application by ICSID arbitral tribunals of both international customary law regarding international responsibility of the State, the applicationof international law principles to give content to the substantive protections to investors and to the reparations granted by the awards.