Interpretation Of Legal Norms Research Articles

Textualism as a Theory of Interpretation of Legal Norms in the Context of Doctrinal Views

Abstract The relevance of the study is due to the problem of establishing the accuracy of the content of legal norms. Accordingly, there is a need to define a new way to explain, apply, and understand them. The purpose of the article is to carry out a theoretical and legal analysis of textualism as a theory of interpretation of legal norms. The research used such methods as analysis, deduction, induction, comparative analysis, and others. Taking the research through the prism of the doctrine of textualism in the interpretation of legal norms, the authors demonstrated that the effectiveness of this method is capable of restoring the semantic content of the text, which helps to clarify the meaning of the norms effectively and consistently. They found that the method under study could be applicable in legal practice to disclose the construction of legal norms, which multiply chances to provide accurate disclosure of the legal content of the norm. The practical value of the results lies in the identification of a new way of interpreting the norms, which will provide a future opportunity to increase the level of effective law enforcement of the current legislation.

Does the "dasein" of a magistrate's assistant matter?

The concept of dasein and its importance for the interpretation of legal norms is presented. Next, considerations are made about the legal interpreter and about the Brazilian reality, with the use of magistrate's clerks to assist in the process of drafting judicial decisions. Research carried out in 2017 is presented which proves the widespread use of magistrate's clerks at all levels of the Brazilian judiciary. A possible dysfunction in this process is the delegation of the decision itself to the clerk. The "magistrate’s clerk who decides" is a problem and a dysfunction of the system, but it cannot be overlooked, since the enormity of repeated cases facilitates this occurrence. There are cases of extraneous content being incorporated into judicial decisions that lead us to believe that this dysfunction is taking place. With the problem of possible dysfunction and the delegation of the judicial decision itself to the clerk, his dasein gains relevance, since the interpretation may ultimately be carried out by him.

On the Problems and Prospects of Development of the Institute of Public Councils under Federal Executive Authorities: Constitutional and Legal Analysis

Coverage of the problem. This article is devoted to the constitutional and legal analysis of the problems and prospects for the development of the institute of public councils under federal executive authorities in the Russian Federation. Materials and methods of research. The subject of the analysis is the relevant provisions of Russian legislation on the organization and activities of public councils under federal executive authorities in the Russian Federation and the practice of their application; general and private scientific methods are used - analysis, synthesis, analogy, formal-legal, comparative-legal, interpretation of legal norms, historical-legal. Results. The paper substantiates a system of measures to resolve these problems, which will ensure the further development of both the specified variety of subjects of public control and, in general, the institute of public control in the Russian Federation. Discussion. The issues of development and implementation of new forms and methods of functioning of public councils under federal executive authorities in the Russian Federation need further scientific understanding.

Добровольность участия в осуществлении общественного контроля в Российской Федерации как его принцип: конституционно-правовой анализ

This article is devoted to the constitutional and legal analysis of the principle of voluntary participation in the exercise of public control in the Russian Federation. The subject of the analysis is the relevant provisions of the legislation of the Russian Federation devoted to the organization and implementation of public control in Russia and the practice of their application; general and private scientific methods are used — analysis, synthesis, analogy, formal legal, comparative legal, interpretation of legal norms, sociological, historical and legal, etc. The article substantiates the role and place of this institution of civil society in the system of legal guarantees for the implementation, protection and protection of the constitutional principles of democracy and the participation of society in the management of state affairs. The main approaches in the scientific and educational literature concerning the content of the concept of voluntary participation in the implementation of public control in Russia of citizens of the country, public associations and other non-profit organizations are investigated. The paper formalizes and studies the main problems that prevent the optimal implementation of this principle of public control in the organization and conduct of its events. The article develops and substantiates a system of measures to resolve these problems, including by introducing amendments and additions to the Constitution of the Russian Federation and the current legislation on public control.

Arbitration in the USA: the main trends in legal regulation

The article is devoted to the study of the current state of the legal regulation of arbitration in the USA. The author analyzes the transformation of regulatory sources – regulations, court precedents, regulations of arbitration institutions in 2019–2022. It is noted that in 2022, the chapter 4 was added to the US Federal Arbitration Act. A brief analysis of the latest precedents of the U. S. Supreme Court and the Appellate Courts of the districts in the field of arbitration is given. Objective. To form understanding of the formation and development of arbitration in the United States based on the analysis of regulations, judicial precedents, and scientific sources. Methods. Theoretical methods of formal and dialectical logic; empirical methods of comparison, description, interpretation. Private scientific methods were used: legal-dogmatic and method of interpretation of legal norms. Results. The conducted research showed that the decision of the US Supreme Court in 2022 in the case “ZF Automotive US Inc et al. v. Luxshare Ltd” clearly demonstrates the tendency of increasing court interference in arbitration practice. Conclusions. The main trends in the practice of US arbitration institutions over 2019–2022 include: a) accelerated arbitration; b) emergency arbitration; c) simplified (summary) proceedings; d) virtual hearings and digital tools; e) data protection and cybersecurity. These trends should be regarded as positive and recommended for implementation in the regulations of Russian arbitration institutions (arbitration courts).

Цифровой правовой контроль как новая цивилистическая категория

Introduction: the article looks at digitalization of economy through the prism of the ‘new technological path’, Digital Earth concept, digital innovation in the framework of Industry 4.0. The focus is on the advantages and disadvantages of such digitalization from the perspective of digital legal control. In the light of the formulated thesis about the absence of a unified scientific idea of the place of digital legal control in the system of relations under private or public law, the author attempts to develop the fundamentals of the digital legal control concept, which is presented in the article as a new civil category. Purpose: to form a general idea of digital civil‐law control, its place in the system of types of digital legal control, and the areas of its practical implementation. Methods: general scientific methods used in the study include analysis, synthesis, induction, deduction, abstraction, interpretation, comparison, etc.; special scientific methods comprise legal‐dogmatic, historical‐legal, comparative‐legal methods, interpretation of legal norms, and legal modeling. Results: digital legal control is a characteristic of both public‐ and private‐law relations. The article develops doctrinal definitions of ‘digital public‐law control’ and ‘digital private‐law control’. Conclusions: in the field of public law, digital legal control is most often associated with public digital financial control. Digital legal control inherent in a civil agreement executed via a smart contract is implemented with the use of mathematical algorithms, therefore such control can be carried out both by a person and without his direct participation; however, in both cases such control is predetermined by the technical framework of a specific information system. Classical contract law is based on trust of the property turnover participants in the state system of coercion, while digital contract law is characterized by trust of the parties to an agreement in the computer code.

On a Possibility of Copyright Protection of Objects Generated by Artificial Intelligence Systems

In recent years, many computer programs have appeared that operate on the AI basis, which are designed to generate various types of content and are distributed to a wide range of users. Therefore, more and more AI objects, similar in their characteristics to protected results of intellectual activity, are being distributed on the Internet. The fact that such objects are generated automatically by a computer program does not allow them to be subject to legal protection in accordance with Part 4 of the Russian Civil Code due to the lack of authors. At the same time, significant funds are being invested in the creation of new AI systems, which determines the need to protect the interests of persons involved in the AI creation and use. At the same time, there is no consensus in the scientific literature about the possibility or impossibility of protecting such objects, as well as the principles and contours of their legal protection. In this regard, the author conducted a study in order to formulate the basic principles of legal protection of objects generated by AI systems. To achieve this goal, the author has formulated the following tasks: to summarize existing approaches to solving the issue of legal protection of AI objects, to identify their shortcomings, to determine the presence or absence of elements of human creativity in working with artificial intelligence systems, to determine the optimal regime for the protection of AI objects. The study was conducted using general scientific methods of cognition, as well as methods of literal interpretation of legal norms, a predictive method and a method of legal modeling. The author comes to the conclusion that there are signs of creativity in human activities when working with AI, which makes it possible to recognize users of such systems as the authors of the objects they generate in accordance with the presumption of authorship enshrined in legislation.

Ненормативные законы и проблема юридической нормативности

The relevance of this scientific article is due to the insufficient elaboration of the problem of non-normative laws in the theory of law, as well as the need to clarify the concept of legal normativity, which does not take into account the existence of normative legal facts. Purpose. The purpose of the article is to study certain aspects of non-normative laws, substantiate the expansion of the concept of legal normativity by including normative legal facts in it. Methodology. In the preparation of this article, general scientific methods (analysis, synthesis), general logical methods (induction, deduction, generalization, classification), special legal methods (formal legal, method of interpretation of legal norms) were used. Results. It is noted that in the Russian legal system, the use of non-normative laws in legislative practice has become quite widespread. At the same time, the correctness of the qualification of certain types of laws as non-normative acts in some cases is questionable, since it does not take into account the possibility of fixing in them not only individual legal prescriptions, but also regulatory legal facts. A broader understanding of legal normativity than the traditional one makes it possible to clarify the substantive classification of laws, including regulatory laws. Conclusion. It is summarized that the concept of legal normativity should cover two types of its manifestation: generally binding rules of conduct and normative legal facts.

Цифровизация гражданского судопроизводства Англии

Introduction: England is going through a period of radical reform of the civil justice system. A new landscape of digital dispute resolution is advancing, based on the idea that the transition from ‘paperbased’ resolution of legal disputes in physical courts to an online environment will help meet the dual requirements of expanded access to justice and significantly reduced system costs. As noted by the English authors, now the country has a semi‐digital justice system and hybrid ways of working. Supporters of the reforms define the current system as unstable and consider growing digitalization to be the only realistic solution. Purpose: to form an idea of the digitalization of civil proceedings in England based on analysis of scientific sources and regulations. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods such as legaldogmatic and the method of interpretation of legal norms. Results: the conducted research has shown that a modernization program is currently being implemented in the courts of England and Wales, focused on the transition from traditional ways of working to the use of digital methods. There have been created various pilot schemes aimed at improving access to justice, at facilitating preliminary resolution of disputes and resolution of disputes at early stages, at reducing the number of claims reaching the court, at increasing the economic efficiency of civil proceedings and judicial efficiency. Judicial reform has been carried out by the UK government for more than 25 years. But the civil justice reform program, with its commitment to digitalization and online process, began in earnest in 2014, when the Ministry of Justice announced that Her Majesty's Courts and Tribunals Service (HMCTS) would implement a reform program the central element of which would be the use of information technology, including online processes, to facilitate dispute resolution. The concept of online court was to create a convenient online system for processing simple monetary claims with a value not exceeding 25,000 pounds. Conclusions: in 2023, the following digital technologies were widely used by UK courts: video hearings (at the discretion of the court); creation of electronic packages of court documents (e‐bundles) and electronic filing of court documents; electronic communication between the parties and the court; online portals for processing various forms of claims; creation of an online system of protocols of preliminary actions (Pre Action Protocols), called online PAPs. Currently, various claim portals designed to handle claims of various types are operating or undergoing pilot testing in the country: the Online Civil Monetary Claims (OCMC) portal (processing of claims for a certain amount of money limited to 25,000 pounds); the Damages Claims Portal (DCP) (processing of claims for damages in the district court); Official Injury Claim (OIC) portal (processing of accident injury claims). An important event was the creation of the Online Procedure Rule Committee (OPRC) in accordance with the Judicial Review and Courts Act 2022. This law created the basis for the development of new, simplified Rules for online services in civil, family, and arbitration proceedings. The Recommendations of the UK Jurisdiction Taskforce (UKJT) should also be taken into account with regard to the use of blockchain technologies in legal proceedings and judicial practice on this issue. The final report of the UKJT was published on June 28, 2023. The final position of the UKJT was to support common law as the primary means to be used to resolve claims against cryptocurrencies.

Правовое обеспечение цифровой трансформации местного самоуправления в Российской Федерации: проблемы и перспективы

Introduction: the article analyzes legal support accompanying the transformation of local self‐government, identifies the legal, social, and technological problems of the changes. Currently, digital transformation in state and municipal administration not only makes it possible to adapt the process of interaction between citizens and authorities but also leads to changes in all areas of activity of local administration, to improvement of municipal services as well as to transformation of the rules and work culture of municipal employees. Consideration of the problem of legal support for digital transformation of municipalities is directly related to finding solutions for the development of municipal governance in Russia in general. That is why this problem is of particular relevance today. Purpose: basing on an analysis of legal regulation of local self‐government digitalization, to identify the main trends and problems that influences not only the implementation of digitalization at the local level but also the quality and uniformity of legal regulation of these processes. Methods: the study employed empirical methods of comparison, description as well as special scientific methods: legal‐dogmatic, method of interpretation of legal norms, comparative‐ legal, and systemic. Results: the authors have identified current problems in legal regulation and implementation of digital transformation of local self‐government and developed proposals aiming to alleviate them. Conclusions: the specific nature of local self‐government requires special approaches to digitalization at the municipal level. First of all, digital inequality of both municipalities and their residents should be taken into account. Another feature is that local self‐government is characterized by proximity to the population, which makes it possible to use electronic forms of direct democracy much more widely than at the level of state authority. Finally, the diversity of municipalities requires legal formalization of uniform requirements with regard to infrastructure and software used in municipal governance at the regional level.

Extended interpretation of legal norms and legal analogy: certain aspects of the relationship

Extended interpretation of legal norms and legal analogy: certain aspects of the relationship

Paid Services Agreement in Modern Civil Law: Theoretical Construction and Prospects for Legislative Regulation

The reform of Russian civil legislation, which began in 2008, has not yet affected the special part of the Civil Code on certain types of contracts, and remains incomplete. At the same time, one of the most problematic contracts is the paid services agreement, the regulation of which in the Code is too broad and fragmentary. In the context of the growing role of the service sector in modern economic turnover, such a state of legal regulation of the paid services agreement in domestic civil law is inadmissible. The choice of directions for improving the legislative regulation of a service agreement should be based on an analysis of the legal nature of this agreement and the features of its theoretical design. The purpose of the article is to identify the main shortcomings of the legal regulation of the paid services agreement and to determine areas for its improvement. The methods of research are general methods of study (analysis and synthesis, induction and deduction, system analysis) and methods of legal science (methods of literal, systematic, teleological and historical interpretation of legal norms). The issues of the theoretical construction of a paid services agreement are considered taking into account the dogmatic development of this issue in domestic civil law and the current state of legal regulation of this contract in the current legislation. It is concluded that the service agreement is always aimed at achieving a certain result in the form of providing services of appropriate quality. The need to improve the general provisions of the service agreement is argued and specific directions for its modernization are proposed. The services requiring additional regulation are defined in special paragraphs of the Civil Code on certain types of service contracts.

Legal and practical issues of special investigative techniques—control of means of communication performance and usage of the obtained information from criminal proceedings

One of the most frequently used special investigative activities is the control of the means of communication. Hence, the current research was conducted with respect to this special investigative activity. The purpose of the present research is to identify legal and practical problems encountered when conducting the control of special investigation activities—the means of communication and the subsequent use of the information obtained during the criminal process, as well as determining the most important legal problems, defining them and finding the right legal solutions. The material and methods used during the preparation of this publication included an expert survey that was used to obtain all the necessary data for the research. The comparative and logical methods were used for the analysis and description of regulations, court decisions, scientific literature and expert opinions. Methods of interpretation of legal norms have also been used in this research. The specific nature of special investigative activities creates both legal and practical challenges, which can be overcome when conducting criminal proceedings so that the information obtained by the control of means of communication during the special investigative activities can be used as legal evidence during criminal proceedings. As a conclusion of the research, legal solutions to the identified legal problems regarding the issue researched upon are proposed. Keywords: criminal procedure; evidence; special investigative activities.

Виды казуального толкования в праве

The article examines various approaches to the identification of numerous grounds according to which the systematization of casual interpretation in law should be carried out. It is noted that the specific differentiation of the casual interpretation of legal norms refers to the problems of classification. The author draws attention to a number of requirements that should be followed when developing bases for stratifying varieties of casual interpretation. Among them are: clarity, rigor and immutability of the bases of division; completeness of coverage; consideration of the laws of logic; approximation; relevance of classification. It is pointed out that in the historical context, there were many alternating approaches to the issue of species diversity of casual interpretation. At the present stage, the casual interpretation of legal norms is classified according to a number of grounds: the degree of binding interpretation results, subjects, degree of freedom of treatment of the object of interpretation, stages, forms and scope of casual interpretative activity. The list of variations of the studied phenomenon is considered in detail in accordance with the stratification bases that were presented by the author. In the end, it is summarized that the classification of casual interpretation in law allows you to gain new knowledge about the types of interpretative activity you are looking for and how to structure it on a number of key grounds.

Иностранное судебное решение и его влияние на действительность арбитражного соглашения (анализ российского и иностранного опыта)

Introduction: the study examines the impact of a foreign judgment on the validity of an arbitration agreement. As part of the study, it was substantiated that a foreign court decision has the property of prejudice in cases where it complies with the conditions of recognition established by Russian legislation. The purpose of the paper is to study the impact of a foreign court decision on the validity of an arbitration agreement. Methods: special scientific methods including historical-legal, critical-legal, legal-dogmatic methods and the method of interpretation of legal norms; empirical methods of comparison, interpretation and description, methods of formal logic. Results: the analysis of legal doctrine, legislation, and court practice has shown that the conclusions of a foreign court on the invalidity of an arbitration agreement due to violation of the procedural legislation of the state do not have prejudicial force for international commercial arbitration (if the place of arbitration is the Russian Federation) and for Russian courts. Conclusions: the conclusions of a foreign court concerning the validity of an arbitration agreement are binding on Russian state courts only if the foreign court has established factual circumstances indicating the presence of a substantive defect in the arbitration agreement (for example, lack of legal capacity, conclusion under coercion, etc.). Moreover, due to the autonomous nature (‘severability’) of the arbitration agreement, the relevant party must prove that the substantive defect in question is covered by the arbitration agreement.

ВЛИЯНИЕ ЦИФРОВИЗАЦИИ ПРАВОСУДИЯ НА ТРАНСФОРМАЦИЮ МЕХАНИЗМОВ ПРАВОВОГО ВОЗДЕЙСТВИЯ

The purpose of this article is to analyze how the process of digitalization of justice can affect changes in the mechanisms of legal influence. In connection with this goal, we can identify the following research objectives: Consider the concept of digitalization of justice. To study the factors and features of modern society that affect the legal impact. To investigate the features of digitalization of legal impact. Consider digitalization as a tool for improving justice. Research methods. In this article, we used general scientific (comparison, analysis, deduction) and private scientific (formal legal, method of interpretation of legal norms, comparative legal) methods. The results of the study. One of the key mechanisms of digital legal impact is the introduction of electronic justice. This includes the use of electronic systems for filing and reviewing lawsuits, as well as conducting court sessions in an online format. Such innovations can significantly reduce the time for reviewing cases and make justice more accessible to citizens. Conclusion. The general directions for improving the legal regulation of procedural legal relations implemented in electronic format are: creation of a block of legal norms concerning the acceptance or refusal to accept a statement of claim filed in electronic form; regulation of the procedure for securing, attaching, authenticating, examining electronic evidence and evidence submitted in electronic form, as well as the procedure for examining physical and written evidence in a court session conducted in the format of a video conference call; settlement of the consequences of the absence of an audio protocol of the court session or inconsistency of the minutes of the court session with its audio version.

The Concept of a Systemic (Systematic) Interpretation of Law in Domestic Legal Science XIX – Early XX Centuries

The article concentrates on the study of issues of the systemic way of interpreting of legal norms through from the stand-point of pre-revolutionary lawyers. The selection of ways to interpret legal norms began at the end of the 19th century but active research of interpreting legal norms didn’t start until the beginning of the 20th century. At the same time the systemic method of interpretation of legal norms is mentioned only in passing in these studies. The authors of the article have come to the conclusion that in the domestic pre-revolutionary legal science there were two main positions in relation to the systemic interpretation. The first one is that some authors following the position of the famous German lawyer K. Savigny considered it an independent interpretation. The second, other lawyers considered the systematic way of interpreting the legal norms as a part (reception, method, element) of a logical (real) interpretation.

Процессуальный порядок реализации последующего судебного контроля (по правилам ч. 5 ст. 165 УПК РФ)

Introduction. The article deals with the procedure of producing subsequent judicial control. Particular attention is paid to the analysis of problematic aspects of the legislatively specified list of investigative actions, with regard to which the judicial control is implemented in according to part 5 of article 165 of the Code of Criminal Procedure of the Russian Federation (CCP), the participation of concerned persons in the court hearing on considering the legality and reasonability of the investigative action, as well as to the legal norms and provisions of the Supreme Court of the Russian Federation relating to the implementation of the considered type of judicial control. The relevance of the chosen research subject is determined by theoretical and applied issues related to the lack of an optimal mechanism for implementing subsequent judicial control over making investigative actions, legislative shortcomings and discordance of judicial practice.
 Research methods. The article is based on both general scientific methods (analysis, synthesis, deduction, induction, generalisation, system-structural approach) and private scientific methods of research (interpretation of legal norms, legal forecasting, generalisation and analysis of judicial practice).
 The results of the research are reflected in the development of normative and scientific provisions to normalise practices of justice proceeding in the field of subsequent judicial control over the legality and reasonability of investigative actions.

Основы документирования хищений мобильных средств связи

Introduction. The article analyses the current state and transformation of the mechanism of theft of mobile communication devices. The main ways of committing thefts are studied, as well as the techniques and methods used in this process. The relevance of the research is determined both by the high number of committed thefts of mobile communication devices and by certain aspects of legal regulation of the documentation process in their investigation.
 Methods. In the research various methods were used, including the universal scientific method of historical materialism; general scientific methods of cognition (comparison, ascent from abstract to concrete, analysis, synthesis, induction, deduction, generalisation, classification, abstraction), private scientific methods (formal-legal, comparative-legal, method of interpretation of legal norms, dogmatic), interdisciplinary method of formalisation.
 Results. The author analysed the most typical investigative situations in the investigation of mobile communication devices thefts and concluded that the process of documenting such crimes is related to their investigation being aimed at collecting, recording and analysing evidence related to the crime in order to identify the responsible parties and ensure the identification of the perpetrators of mobile communication device thefts. Certain difficulties are associated with the fact that documenting the theft of mobile communication devices is a complex integrated multi-stage task that requires careful attention and co-operation between all participants in the criminal justice process involved in the investigation of a particular criminal case.

Ethical Regulation – “Soft” Regulation, “Soft” Power

Introduction. The article examines the problem of the relationship between law and ethics in their normative manifestations. The position is substantiated that ethical regulation is much broader than legal regulation, but any legal regulation is based on an ethical principle. That is, law is the minimum of ethics. This is their similarity, as well as the fact that both ethical and legal regulation (and a number of others, for example, in the theological sphere) are social regulation. Methods. This research is based on the use of the general scientific dialectical method of cognition, which determined the use of general philosophical (analysis, synthesis, analogy) and formal logical methods. In turn, the specifics of the problem studied in the article determined the use of private scientific methods: historical-legal, comparative-legal, formal-legal, structural-functional, systemic analysis and interpretation of legal norms, etc. Results. The implementation of legal regulations, compliance with the rules of law is ensured by the force of coercion, behind which stands the state and its relevant institutions. Therefore, legal regulation is strict regulation, “brute force”. And ethical regulation, compliance with ethical standards is ensured by conviction, first of all, on the part of the individual himself, “included” in the corresponding society, where ethical obligations are formed, which over time acquire normative content. Therefore, ethical regulation is soft regulation, “soft power”. In developed social societies, naturally, and in Russian too, “soft” regulation, normatively enshrined, occupies a dominant position. The article notes that it is more reliable, long-lasting, more fundamentally determines the rules of behavior of the subjects of its influence and is much less subject to market fluctuations than the legal one. Therefore, it is developing rapidly: both at the international level, and abroad, and in Russia, where in recent years codified acts have been developed and adopted in the field of normative regulation of ethical rules of behavior: in the system of executive authorities (including law enforcement agencies), in the stratum of free people professions, in the business sector, etc. Particular attention in the article is given to ethical regulation in the sphere of professional, personal and other life activities of judges. Discussion and Сonclusion. The article substantiates that an indispensable attribute of “soft power”, as in the field of legal regulation, is responsibility for non-compliance with relevant regulatory requirements. But at the same time, mixing legal (disciplinary, first of all) and ethical responsibility is unacceptable. Using the example of such confusion regarding Russian judges, due to current legislation, the article shows the negative consequences of the corresponding law enforcement.