Law Institute Research Articles

Reimagining the Requirements for Civil Servants: Harnessing Creativity for Social Impact and Institutional Renewal in Public Law

This article analyzes some changes in current legislation regarding the stipulation of requirements for state civil servants, particularly in response to extraordinary circumstances. This article seeks to identify emerging trends in revitalizing public law institutions and assesses the importance of creativity in shaping the personal and professional potential of civil servants. The author underscores the critical role of creative abilities within the public administration system, highlighting their impact on the effectiveness of achieving management objectives. However, creativity in public law should not be perceived as unlimited freedom of action; rather, it must be exercised within the confines of established rules and procedures. Thus, a delicate balance between creativity and legal compliance is required.

Marriage and the Obligations Arising from It

Marriage, as an institution of law, is based on the moral and legal equality of spouses, on the feeling of mutual love, respect and understanding, as the basis of family unity. Healthy family and marital relationships contribute to the elimination of gender stereotypes. It all starts in the family and is transmitted throughout society. For this reason, rightly, if we want to know how much a society respects the principles of non-discrimination and gender equality, it is very effective to carry out this analysis also for the family. Both marriage and the family, as very important institutions, enjoy the special protection of the state. The general principles that pervade these institution s are: i) the principle of reciprocity of rights and obligations ii) the principle of equality in rights and obligations iii) putting the interests first: of children, of marriage, of the family iv) reciprocity: in loyalty, for moral help, for material help, for cooperation in the interests of the family and coexistence. Marriage is a legal and social coexistence between two different people whose responsibilities and rights are defined by law and social traditions. Couples marry for a variety of reasons, including love, cohabitation, and sometimes economic or social reasons. Equality between spouses is accepted as a rule social concept and as a principle of family law. The principle of equality and non-discrimination as well as that of violence in marital and family matters is one of the main points in the paper. Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024

Regulation of the institute of concepts in the active criminal procedure code of Ukraine

The article examines the issues related to the procedural institute of participation of concepts in criminal proceedings, its appearance, development and legislative regulation at different historical stages. It is noted that since its origin, this institution of procedural law has been observed as a guarantee of ensuring the rights and interests of participants of investigative actions against harassment by the investigating authorities. A number of procedural rules which contain information on the participation of concepts in pre-trial proceedings allow us to conclude that the institute of witnesses is present in the current Code of Criminal Procedure.
 The authors analyse the opinions of scientists on the viability of keeping the institute of concepts in the current CPC, due to the modern technical opportunities for objective and complete fixation of the course and results of the investigative action. The authors conclude that the legislator has a reasonable attitude to the use of the traditional institute of concepts and the use of modern technical devices for recording investigative actions. The authors note that keeping the institute of concepts in the current CPC of Ukraine requires further regulation. The classification of a concept as a participant in criminal proceedings requires appropriate modifications to the CPC and an independent article among other participants in criminal proceedings. It is proposed to define this participant in the process in the relevant provision, indicating his procedural status (list of rights and obligations), the range of persons who cannot be involved as witnesses, and the right of participants to the investigative action to challenge the concept.
 Based on the analysis of scientists’ opinions, doubts are expressed about the ability of concepts to create conditions for an objective and, moreover, proper proceeding of the investigative action, to ensure the legality of its performance. In most cases, witnesses are random persons who are not interested in the case. The author analyses the proposals of scientists regarding the competitive recruitment by local self- government authorities of individuals who are trustworthy and passing their lists to law enforcement authorities for the purpose of engaging concepts. The authors justify the proposals for further regulation of the institute of concepts.

Русское гражданское право в эпоху Древней Руси

The article represents a description of the civil law of the Ancient Rus’ on the basis of the norms of the Russkaya Pravda and other sources of the ancient Russian law. The author reviews such institutions of civil law as its subjects, objects of property rights, the right of ownership, its acquisition and termination, forms of transactions, types of contracts, ways to ensure the fulfillment of obligations.

Offender Rehabilitation System in Hong Kong: From Traditions to Innovations

Probation in Hong Kong is part of a broader concept – a system for the rehabilitation of offenders and the prevention of reoffending. In this approach, the focus of the probation service is not on the crime itself, but on the unresolved personal and social problems that underlie criminal behavior (lack of employment, housing, drug addiction, etc.). With regard to the rehabilitation of offenders in this administrative region, there are legal regulations that have undergone several stages of improvement, a well-developed organizational system of rehabilitation and a set of proven methods of working with offenders. All this makes the Hong Kong experience interesting from the point of view of the prospects of possible borrowing. The paper considers the legal regulation, the history of formation and development of the system of rehabilitation of offenders in Hong Kong, the influence of the English experience on its formation; highlights the features of the organization of the rehabilitation system, as well as its advantages that contribute to the optimization of work processes. Probation in Hong Kong started with juvenile offenders and later extended to adults. Probation in Hong Kong is now a criminal law institution accompanying alternative sentences to imprisonment. Based on academic research, official publications of the Social Welfare Department (SWD) and the Correctional Services Department (CSD) of Hong Kong, and statistical data, the author explores specific measures of support for ex-convicts, social rehabilitation, and the effectiveness of their application. The author identifies the key points of effectiveness of the Hong Kong system of rehabilitation of offenders: well-built hierarchical organizational structure (departmentalization of the service); division of functions between the agencies supervising social welfare and correctional institutions; emphasis on the use of social work methods in the creation of rehabilitation programs; a wide range of rehabilitation programs targeting different groups of offenders; comprehensive nature of rehabilitation, involvement of family and community. In conclusion, the author’s vision of the prospects of using the Hong Kong experience in the Russian realities, coupled with the analysis of the new legislation on probation, is stated.

The concept of the Shafi ʻi school in basics of buying and selling

Buying and selling is one of the main economic institutions in Islamic Law. It allows people to exchange goods and services in accordance with the principles of fairness and equality. The article examines the scientific method of making decisions by the founder of the Shafiʻi legal school, the famous thinker of the early Middle Ages Imam al-Shafiʻi (767–820), and analyzes his views in the field of law, which the Shafiʻis refer to in their relationships in the trade transactions. Particular attention is paid to the issue of sources of Islamic Law the Shafiites appeal to. In this article, for the first time in Russian jurisprudence, the author studies and examines in sufficient detail the Shafiʻi approach to purchase and sale. In addition, the authors takes as the focal point the compromise nature of the Shafischool, which, on the basis of exclusively scientific methods, managed to synthesize the most promising provisions of more “liberal” Hanafism and “conservative” Malikism.

Key Issues of Private Law Transformation under Influence of Behavioural Economics and Data Science

Corporations are now increasingly embracing the advances of Data Science and behavioural economics. It will undoubtedly have far-reaching implications for many areas of legal regulation . In author’s opinion, private law institutions aimed at regulating relations between business and customers will be the first to deal with transformation. The paper outlines the main questions and issues that lawyers will face in the next five to ten years as the ideas of behavioural economy and Data Science spread to private law, and offers some thoughts addressing these issues. In the beginning the author briefly reviews the progress of behavioural economy and how its achievements help to attain the aims of legal regulation. In particular, the author surveys private law tools such as discretionary rules and information disclosure for “pushing” individuals to a more rational behaviour. The author then analyses how the current level of Big Data collection, processing and use can affect the discretionary rules and information disclosure in corporate contracts with consumers, including the possibility of private law institution “personalisation” with account of the individual features of the parties to the transactions. Further on, the asks and attempts to answer the key question of the article: What regulatory environment should be in place to enable behaviourally informed personalisation of private law institutions using Big Data? In responding to this question, the author analyses three related problems arising at the intersection of law, Data Science, psychology, and economics: How to ensure freedom of choice and autonomy of will of individuals while using information and behavioural innovations? How much information should legal actors be able to receive in order to make the best decision? How to find a balance between private law “personalisation” and personal data protection? In conclusion, the author summarises the results of the study and concludes that to date there are no universal rules and algorithms for private law personalisation, and the introduction of Data Science and behavioural economics into law is still taking place in individual legal relations on case-by-case basis.

Идеология квалификации (аккредитации) инвесторов на фондовом рынке

Accreditation of investors is an unusual institution of civil and administrative law, since in fact one counterparty under a civil contract must make a quasi-administrative decision on the admission of another counterparty to civil transactions with itself and third parties, albeit based on the criteria provided by law. We discuss the first results of the investor accreditation reform that took place in Russia in 2020–2021. We have also summarised approaches to investor accreditation that have been developed in a number of foreign jurisdictions, with special attention paid to current Russian and American regulatory approaches and debates on these issues. We propose, taking into account a reasonable transition period, to completely switch to the qualification of investors only on the basis of an assessment of their real knowledge based on tests and professional certificates, as well as on paid personal income tax from stock transactions, abandoning all other qualification criteria. This will require, among other things, complete re-accreditation of all Russian retail investors. Testing should be carried out by organisations independent from brokers.

On the individual properties of the accessory nature of the arbitration clause

The regulation of the application of an arbitration clause as a type of arbitration agreement is based on the dual nature of this legal category, which determines the specifics of the relationship between material and procedural legal relations when the latter arises within the parameters established by the arbitration clause. In such cases, a significant simplification of legal regulation is not excluded, when it is possible to recognize signs of accessory in such relationships. According to the results of the study, the author proves that the interrelationships of material and procedural legal relations arising from the application of the arbitration clause have accessory characteristics according to eight criteria usually highlighted in the literature. It is proposed not only to establish such an approach to defining the features of accessory in this particular case in the doctrine, but also to improve the current legislation and practice of its application. In the work, the practical consequences of the author's conclusions are shown by the example of simplifying the procedure for verifying the possibility of applying for enforcement of decisions on interim measures taken by a court of another jurisdiction (international arbitration court) under an agreement containing an appropriate arbitration clause, "recognized" by national jurisdiction, where enforcement of a decision on interim measures is assumed. The work is based on the application of a whole range of general and private scientific research methods and techniques, the main of which were the method of system analysis and the method of formal logic in the form of deduction and induction. Accessory relationships remain a little-studied legal phenomenon, both in the theory of law and in branches of legal science. The most in-depth and consistent studies of this issue are present in substantive law, where they relate mainly to the problems of establishing the presence or absence of an accessory relationship between contractual obligations and ways to ensure the fulfillment of obligations. In procedural law, accessory as an independent legal category is not studied, although certain institutions of procedural law, for example, interim measures in civil proceedings, clearly have separate signs of accessory in their regulation. It seems that the establishment of the properties of accessory in the relationship between substantive and procedural legal relations, when the parameters of the latter are determined by an arbitration clause, will have important theoretical and practical significance.

The Legal Consequences of Failure to Provide Information at the Request of the Antimonopoly Authority in the Investigation of Anti-Competitive Agreements

The legal consequences of failure to provide information at the request of the antimonopoly authority during the investigation of anti-competitive agreements are considered based on the analysis of the competition and related legislation and relevant law enforcement practice.The law institute of obligation to provide information and administrative liability for failure to provide the requested information are considered.According to the results, it seems advisable to consider the issue of the legislative establishment of the administrative-legal norm on liability for repeated intentional failure to provide information to the antimonopoly authority

Failure to take measures to prevent and resolve conflicts of interest: labor law issues

The subject of the study is the failure to take measures to prevent and resolve conflicts of interest. Failure to take measures is considered as an element of the objective side of disciplinary misconduct in labor relations, the composition of which is defined in paragraph 7.1. part 1 of Article 81 of the Labor Code of the Russian Federation, along with such elements as "conflict of interest" and "loss of trust". The types of measures are studied, the collision of their anti-corruption and labor-law nature; the subject of taking measures; the possibility of choosing a measure by an employee and an employer; the legal consequences of non-acceptance; the head as a subject of responsibility in case of non-acceptance of measures; the obligation to notify about a conflict of interests; the content of the concepts of "prevention" and "settlement". The object of the study is labor relations in terms of disciplinary responsibility for corruption offenses and related official legal relations. The author uses the general scientific method of dialectical cognition, as well as a number of private scientific methods: technical-legal, systemic-structural, formal-logical (deduction, induction, definition and division of concepts) and others. The article discusses the following problematic issues: 1) the ratio of measures provided for by anti-corruption legislation with labor law institutions, in particular, transfer to another job and suspension from work; 2) the possibility of abuse of the right by the employer and violation of the rights of the employee when taking measures; 3) the situation of legal deadlock when it is impossible to take measures; 4) unjustified inconsistency of legal regulation of measures in labor and official legal relations. The article draws conclusions about the illegality of dismissal only for failure to inform about a conflict of interest; about the priority of the employee's right to choose a measure to avoid abuse of the right by the employer; about the unification of legal regulation of suspension from work for the period of investigation of corruption misconduct or dismissal of the head for failure to take measures in labor and official relations; about ways out of the "legal impasse" if it is impossible to resolve a conflict of interest, in particular, a separate basis for termination of an employment contract due to circumstances beyond the control of the parties, or permission to act in a conflict of interest with little benefit.

Article: An Institutional Law Analysis of the European Commission’s EU Space Law Proposal

Article: An Institutional Law Analysis of the European Commission’s EU Space Law Proposal

The Importance of Institutional Arrangement to Safeguard Maritime Security and Safety in Indonesia: The Case of Marine Security and Safety Agency

Introduction: Multiple agencies approach has been adopted by the Indonesian government to ensure maritime security and safety. The involvement of multiple actors potentially leads to overlapping authorities and an uncoordinated operation. For stakeholders at sea, such approach is inefficient, ineffective and creates confusion. The situation needs to be addressed to make more a coordinated, efficient, and effective method. This paper tries to address such an issue through institutional law lens.Purposes of the Research: This paper aims to answer three important questions (1) How is the enforcement of security and safety at sea so far? (2) What are the implications as the many institutions involved in the enforcement of safety and security at sea? and (3) What kind of institutional arrangements to be made in the future so that law enforcement at sea becomes effective and efficient?.Methods of the Research: This study utilizes a normative legal approach. It exercises legal doctrines, relevant laws and regulations. It is also suplemented by relevant literatures, books, journals, and media coverages.Results of the Research: This paper finds that the enforcement of security and safety at sea adopts multi agencies where many institutions involved in maintaining security and safety at sea. The fact that multiple institutions simultaniously participate in law enforcement at sea, potentially create overlapping and lack of coordination among them. This also creates confusion and disadvantage to the stakeholders. Therefore, it is necessary to reorganize the current institutional arrangements to minimize the problems on the ground.

The Importance of Institutional Arrangement to Safeguard Maritime Security and Safety in Indonesia: The Case of Marine Security and Safety Agency

Introduction: Multiple agencies approach has been adopted by the Indonesian government to ensure maritime security and safety. The involvement of multiple actors potentially leads to overlapping authorities and an uncoordinated operation. For stakeholders at sea, such approach is inefficient, ineffective and creates confusion. The situation needs to be addressed to make more a coordinated, efficient, and effective method. This paper tries to address such an issue through institutional law lens.Purposes of the Research: This paper aims to answer three important questions (1) How is the enforcement of security and safety at sea so far? (2) What are the implications as the many institutions involved in the enforcement of safety and security at sea? and (3) What kind of institutional arrangements to be made in the future so that law enforcement at sea becomes effective and efficient?.Methods of the Research: This study utilizes a normative legal approach. It exercises legal doctrines, relevant laws and regulations. It is also suplemented by relevant literatures, books, journals, and media coverages.Results of the Research: This paper finds that the enforcement of security and safety at sea adopts multi agencies where many institutions involved in maintaining security and safety at sea. The fact that multiple institutions simultaniously participate in law enforcement at sea, potentially create overlapping and lack of coordination among them. This also creates confusion and disadvantage to the stakeholders. Therefore, it is necessary to reorganize the current institutional arrangements to minimize the problems on the ground.

ANALISIS YURIDIS TENTANG ZAKAT BAGI PEGAWAI NEGERI SIPIL (Kajian dari Perspektif Hukum Islam)

Zakat, infaq and shadaqah (ZIS) are official institutions in Islamic law which relate to the property rights of a person or legal entity which have the value of worship as well as social and humanitarian charities which are useful for the welfare of mankind, maintaining security and socio-economic balance, while improving human and societal development as a whole. In Law Number 38 of 1999 concerning zakat, Article 1 explains that zakat is property that must be set aside by a Muslim or an entity owned by a Muslim in accordance with religious provisions for given to those who are entitled to receive it. Zakat imposed on salaries received by civil servants (PNS) is a type of professional zakat because it is imposed on workers' income due to their profession. As for income that is subject to zakat on the salary received for civil servants (PNS) if it has reached the nisab (the minimum amount of assets to be subject to zakat), namely 2.5% or has fulfilled the time specified according to Islamic law. Even though implementation still experiences problems and obstacles due to a lack of awareness about zakat on salaries received by civil servants (PNS), the government is obliged to collect and manage zakat, infaq and Islamic alms in a professional, honest, trustworthy and transparent manner so that The potential for zakat, infaq and alms (ZIS) which is quite large in society can be explored optimally. By creating and establishing zakat amil institutions (LAZ) in each Department or Government Agency based on the applicable laws regarding zakat management, namely Law Number 38 of 1999, so that it can improve community welfare, especially in the socio-economic field. Utilization of professional zakat proceeds will be better if it is carried out productively and managed professionally, in addition to some of it being for consumptive purposes for mustahik, especially poor and destitute groups.

Umowa ze skutkiem ochronnym na rzecz osoby trzeciej - konstrukcja i dopuszczalność

Can a third party acquire rights by contract, even though there is no relevant contractual provision? The article analyzes a German contract law institution: the contract protective of third parties which establishes a debtor's special obligation to protect certain third parties whose legal situation may be affected by the performance of the contract between the debtor and the creditor. In the event of a breach of contract due to the debtor's fault that causes damage to a third party, the debtor is obliged to compensate the third party for the damage caused under the regime of contract liability and not under tort liability. The possibility of applying this construction under Polish law, although controversial, is not excluded. Areas of application may however include the outsourcing of services and banking law.

EXTRADITION: DIRECTIONS OF DEVELOPMENT

The study of one of the basic institutions of criminal law and international criminal law is aimed at creating a system of approaches to the development of existing law that can lead to the development of a universal approach to providing legal assistance. The purpose of the study is to determine the directions of the development of the law for providing legal assistance under the extradition process. Materials and methods. The method of analyzing sources of law made it possible to identify weaknesses when carrying out the extradition; the comparison method revealed a divergence in norms relating to the basis for extradition, which gives a forecast for solving a number of problems for both parties of the mechanism under study. Research results. The practical application of extradition rules makes it possible to achieve the desired result, but the desired effect is achieved through large and unreasonable efforts of both parties with a large bureaucratic toolkit, which leads to the idea of optimizing a number of processes. Conclusions. The institution of extradition should be considered as a flexible tool of legal assistance that allows solving the problems of justice in the spirit of the current principles of humanity and legality. The creation of an international instrument of a universal nature can fill gaps in the law and lead to a uniform extradition mechanism at the bilateral level. Due to current political international processes, the formation of such a document seems appropriate.

How do law and religion influence child marriage? A qualitative study using content analysis

AbstractObjectiveThis study was conducted to investigate the effects of religion and law on child marriage in Sanandaj, Iran.BackgroundThe prevalence of child marriage is 16.65% in Iran and 11% in the Kurdish city of Sanandaj. This study considers the legality and legitimacy of this practice in Iran.MethodEligible participants were selected through purposive sampling. Participants included three groups: parents of a married child (n = 7), women who were child brides (n = 19), and experts (sociologists, marriage concluders, and marriage counselors; n = 7). The research question was “What impact do religious and legal factors have on the decision of families in child marriage?” The data were gathered using semistructured in‐depth interviews and analyzed by conventional content analysis method.ResultsThe findings were generally categorized into four main themes including law–religion issues (subthemes: marriageable age in civil law, Sharia principles), predisposed religious interpretations (subthemes: religious interpretations confirming child marriage, interpretations rejecting child marriage), institutional factors (subthemes: official agencies, religious factors), and religious viewpoint of families toward child marriage (subthemes: avoidance of sin, reference of parents/children to religious rules).ConclusionsThe intersection of law, religion, and family institutions, with their interconnected rules, encourage child marriage (particularly for girls) in Sanandaj, Iran. Any change in these factors (mostly civil law and Sharia) may influence the demands of families for child marriage.

MONITORING OF LEGISLATION ON INTENTIONAL SELF-HARM (SELF-MUTILATION)

The authors examined the criminal law institution of intentional self-harm (self-mutilation). The Constitution of the Republic of Kazakhstan extends to the area related to the legal status of the individual, and applies in full to citizens of the state deprived of liberty and placed in penitentiary institutions. They are limited to a certain extent of rights and freedoms, but these restrictions should not contradict the Constitution of the Republic of Kazakhstan. The study examined foreign experience of the institution of deliberately causing any damage to oneself (self-mutilation), as well as international legal acts recognized by the Republic of Kazakhstan and other states of the modern world. Is an act of self-harm committed by a convicted person one of the ways to protect his rights to freedom of speech and expression, a form of protest against the illegal actions of the administration of the institution, or a criminal offense? Criminal liability with the participation of a group of persons in this act is also considered. A legal analysis of Article 428 of the Criminal Code of the Republic of Kazakhstan and Article 130 of the Criminal Executive Code of the Republic of Kazakhstan was carried out, which indicate certain shortcomings in the presentation that create conditions for ambiguous understanding and application. It is possible to bring to criminal liability for participation in group disobedience, involving the deliberate infliction of any harm on oneself, if the purpose of self-harm is ignoring the legal requirements of the administration of the institution and violating the established procedure for serving a sentence. All these issues were considered by the authors in this article.

Raising the Question of Law in Language

The article shows a different approach (compared to the traditional one) to the paradigm of a public institution and to the development of a new epistemology, which replaces analysis (understood as a decomposition in the greek meaning of the word) and promotes synthesis and holism in the interpretation of law in language. It emphasizes that there are relationships between a public institution (law), language and cognition, where the role of language requires special study, especially in relation to mental activity. Modern scientific interdisciplinary approaches lead us to consider this phenomenon in the light of the paradigms of cognitivism (In connection with the interrelation and inseparability of language from thinking) and fractal semiotics (taking into account the “biosocial” function of language and the construction of an object of study from the position of an observer), representing these two public institutions as procedural, self-referential, self-organizing in their interaction with an observer.