Interpretation Of Legal Provisions Research Articles

Climate Legislation and Legal Relations: Current State and Development Prospects Within the National Security Framework

The article is devoted to the scientific and theoretical analysis of the current paradigm of development of national climate legislation and legal relations within the Europeanization framework. The subject of the study is the analysis of international legal norms, national legislation and judicial practice in the aspect of adaptation to climate change. The purpose of the article is to provide a comprehensive, integrated study and analysis of the provisions of legal acts from the standpoint of the formation of climate legal relations in the context of ensuring national security. The chosen goal has led to the setting and solution of such tasks as: a) consideration of the theoretical and methodological foundations of the emergence and formation of climate legal relations; b) study of the current provisions of environmental and legal doctrine with regard to the need for adaptation to climate change; c) outlining the ways to improve and further systematize national climate legislation in the context of European integration and sustainable development. The methodological basis of the study is formed by general scientific and special methods of cognition of legal phenomena: dialectical, historical and legal, formal and logical, systemic and structural, theoretical and prognostic, comparative legal, formal and legal, interpretation of legal provisions, legal modeling, etc. The author examines the peculiarities of the formation of climate legal relations which are closely related to environmental and security legal relations, along with energy, agricultural, etc. It is proved that they are gradually being formed and distinguished into an independent interdisciplinary institution of environmental, energy, agrarian, environmental security law, as well as international and EU law, which is likely to become an independent branch of public law in the future. The article emphasizes that the development and implementation of national climate policy (especially in the context of regulatory and legal support) should be fully based on the fundamental provisions of the EU climate policy. The author considers the issues of judicial protection of climate human rights and humanity in case of non-fulfillment of policy and program documents and non-compliance with international obligations by the State. The problems of compensation for climate damage and the impact of climate change on migration processes (climate migration) are outlined. It is argued that modern climate policy should be built on a cross-sectoral level to ensure the preservation of ecosystems, landscape and biological diversity, accelerate the transition to low-carbon energy saving systems, reduce dependence on fossil fuels, expand the use of renewable energy sources, improve energy efficiency, and increase the adaptive potential of natural resources to climate change.

Circumstances to be proved in the investigation of violations of the laws or customs of war

Investigating violations of the laws and customs of war is a relatively new area of activity for law enforcement agencies in Ukraine. Although some experience of such investigations has existed since 2014, the international armed conflict that began on February 24, 2022, identified almost all forms (methods) of violation of the laws and customs of war, which requires a comprehensive analysis and correct understanding of the rules of international humanitarian law that define the rules for participants in armed conflict. The purpose of the research is to define some circumstances to be proved in the course of the investigation of violations of the laws and customs of war and to disclose their content with due regard for the rules of international humanitarian law which determine the specifics of the object of proof in such criminal proceedings. The research employs philosophical (dialectical and hermeneutical), general scientific (systemic, historical, functional), and special scientific (comparative jurisprudence, technical-legal, and interpretation of legal provisions) methods of cognition. The work is based on the provisions of the treaty and customary law of armed conflict, the practice of its application at the national and international level, national law providing for liability for violation of the laws and customs of war, the procedural procedure for investigating criminal offences, and forensic recommendations for investigating particular types of crimes. Based on the results of the research, the author develops several circumstances to be proved in the course of investigation of the laws and customs of war as separate but related to other elements of the object of proof, namely: lawful combatants, combatant's immunity; territorial and time limits of international humanitarian law; legitimate purpose, military necessity. Their content, evidentiary value, and relationship are covered

Criminal Aspects of Medical Errors

In this paper, we focus on the importance and role of criminal law in sanctioning medical errors. Bearing in mind that criminal acts are the result of irresponsible, inappropriate or insufficiently careful behaviour of medical staff during the treatment, there are difficulties in proving them in criminal proceedings. Due to the complex causality and sensitiveness of this problem, there is a need for a detailed analysis of the relevant provisions of the Serbian Criminal Code. In this regard, our goal is a comprehensive review and assessment of the quality and efficiency of current legislative solutions. The court practice in the matter was also the subject of the analyses, so we tried to identify points of disagreement in the court’s interpretation of legal provisions. Subjective elements of the legal definition of the basic form of the offence are particularly examined. We concluded the paper with recommendations for the improvement of legal solutions de lege ferenda.

Zadania gminy z zakresu humanitarnej ochrony zwierząt

The article is of a scientific and research nature, and the author’s conclusions and thoughts are based on the interpretation of legal provisions and the achievements of the legal doctrine. The tasks of the municipality aimed at providing care and humane protection of animals were examined. The material foundations of the study are legal institutions provided by the Animal Protection Act. Three such institutions were distinguished: the homeless animal care program, the decision to temporarily collect the animal away, and the decision to keep dogs of breeds considered aggressive. The text analyzes the legal nature of the commune’s tasks in this sphere and the legal implementation forms of these tasks, and highlights some ambiguous legal issues.

ПРОБЛЕМАТИКА ПРАВОВОЇ ПРИРОДИ РЕКОМЕНДАЦІЙНИХ РОЗ’ЯСНЕНЬ АНТИМОНОПОЛЬНОГО КОМІТЕТУ УКРАЇНИ

The article is devoted to the scientific analysis of legal nature of recommendation clarifications of Antimonopoly Committee of Ukraine. The detailed attention is paid to the thorough investigation of provisions of Recommended Clarifications of Antimonopoly Committee of Ukraine No. 39-pp August 08th, 2016 that defines the legal approaches of Anti monopoly Committee, which are recommended to apply by its official bodies while defining of fines for violation of legislation on protection of economic competition, including protection from unfair competition, in order to ensure the legal certainty and predictability of application of legal provisions. On the basis of scientific research, the conclusion is made that recommended clarifications of Antimonopoly Committee of Ukraine by their legal nature are the acts of common regulative force that are not the legislative acts, they also cannot create new legal provisions, they belong to the so called “soft law” by means of which the uniformity of interpretation and uniform rules for realization of legal provisions are ensured. The importance of recommendation as interpretation of legal provisions is highlighted, their place in the regulation of legal relations is defined. The main purpose of recommendations is to form the legal opinion of state authority abot the content and the order of execution of legal provisions. The authors make a conclusion that withdrawal of Antimonopoly Committee of Ukraine from its own legal position as to the practice of fine calculation, that is prescribed in recommended clarifications, provides the possibility to talk about the violation of one of the major principle of law — the principle of legal certainty. The proper realization of discretional competence is based on the compliance with the requirements of legality and adequacy of law enforcement decisions of empowered officials. With the purpose of improvement of current legislation, it is proposed to approve the Methodology for calculating the amount of fines by the Antimonopoly Committee of Ukraine for violation of the legislation on protection of economic competition. The adoption of such Methodological guidance for calculation of fines will increase the efficiency of national regulative provisions and goes completely in line with the provisions of Association Agreement between the European Union and Ukraine.

The Question of Public Participation in the Procedure for Authentic Interpretation of Laws

Authentic interpretation of laws is an interpretation of legal provisions that, due to their lack of clarity or misinterpretation in their application, is provided by the parliament. Unlike the legislative procedure, which is conducted, as a rule, in two (exceptionally three) readings, a proposal for giving an authentic interpretation is discussed in one reading. Starting from the understandings of some authors that the act of authentic interpretation of laws is contrary to the principle of democratic pluralism, and that it lacks the necessary level of democratic control and citizen participation, the author examines whether the Croatian parliamentary law enables public participation in the procedure for authentic interpretation of laws and, if so, what legal instruments can be used to implement it in parliamentary practice. To this end, the paper analyzes several relevant constitutional, legal, and procedural provisions of the Croatian parliamentary law, with reference to a parliamentary practice. Given the fact that the procedure for authentic interpretation in the Republic of Croatia, the Republic of Northern Macedonia, the Republic of Slovenia and the Republic of Serbia is regulated in a similar way by the rules of procedure of their respective parliaments, the relevant regulations of the latter three countries on the possibility of public participation in this procedure are analyzed as well. It was concluded that Croatian parliamentary law enables public participation in the procedure for authentic interpretation, through the instruments of petition, information and involvement in working groups and working bodies, and the same instruments, with certain specifics, are recognized in the parliamentary law of the latter three countries.

An Axiology of the European Legal Space

Law cannot be created without value or based on false values, therefore dealing with the axiology of law is necessary, also in the context of international law. Therefore, it was considered justified to study values and to address the issue of the axiology of law in the analyses of the legal specificity of the European legal space, which was also made an essential objective of these considerations. The framework of the considerations was narrowed down to the European legal area, considering it to be the normative sphere of influence of European international organisations, i.e. the Council of Europe, the European Union and the Organisation for Security and Cooperation in Europe. With this research area in mind, the concepts that formed the core of the considerations were analysed, namely: the concept of the European Legal Area, the axiology of European law and legal culture. The aim of the analysis is to show that the common values of the law, which the European legal area upholds, determine the direction of legislation, interpretation of legal provisions and the direction of application of law, thus promoting the formation of a coherent legal order in Europe.

RESPONSABILIDADE AMBIENTAL DA PESQUISA MINERAL COM FINS ACADÊMICOS E CIENTÍFICOS

he Coronavirus pandemic that spread around the world in the first half of 2020 brought impacts to society that will be registered for an extended period. In this paper, the effects showed an impossibility to maintain the progress of mineral research made by professionals in the academic and scientific areas. In an attempt to find justifications in the legal order of the mineral industry, to continue the work, it was faced with imposing environmental legislation that made a claim even more difficult. It was found that the Mining Code in place no longer regulates the activities of extraction of mineral specimens for museums, educational establishments and other scientific purposes. This left the legal security tied only to the interpretation of legal provisions in articles of the code and its regulation, as well as procedure manuals for environmental inspection bodies, and therefore, subject to the consequences of legal disputes with final decisions in higher courts, given the claim of superiority of the environmental issue over mining. Keywords: Coronavirus, pandemic, environmental legislation, mining code

Гласность от истоков до современности и ее значение в толковании норм права

Гласность от истоков до современности и ее значение в толковании норм права

CIVIL LAW PROVISIONS TO REGULATE INVESTMENT ACTIVITIES

Purpose: The article analyzes the Russian Civil Code provisions from the point of view of their influence on legal regulation of investment activities. Methods: the author uses methods of literal interpretation, teleological (target) interpretation of legal provisions, and general science methods of analysis, induction and deduction. Results: It is noted that most major investment projects assume the following model of interaction between investors and recipients - the initial agreement of approximate terms of interaction and the conclusion of a bulk of civil contracts necessary for the project implementation at the second stage of cooperation. In this regard, special attention is paid to such civil law agreements as a preliminary agreement and a framework agreement. The institution of agreement to grant an option to conclude a contract, otherwise called an option to conclude a contract, as well as an option contract are designated from the position of a kind of “guarantee” of the investor’s and capital recipient’s rights. The article concludes that the importance of the principle of protection of the “weak” party to the contract is increasing. At the same time, the concept of legislative regulation of relations between the parties to contracts, which are often used by both investors and recipients of capital investments, has undergone a significant change. In addition to that, the author emphasizes that “in favor of debtors” orientation of Russian legislation is gradually being corrected by creating numerous exceptions to protect creditors' rights. This decision is intended to comply with the principle of balancing economic interests of parties to legal relations.

Points at Issue With the Definition of Forgery (the Case Study of Article 326 of the Criminal Code of the Russian Federation)

The object of the research is the definition of forgery as it is used by the legislation, in particular, in Article 326 of the Criminal Code of the Russian Federation. The authors see the following problems: no legal definition, no single point of view in the doctrine of criminal law and incoordinations with other terms used in law. The wording 'forgery or counterfeiting state registration sign' used in Article 326 of the Criminal Code of the Russian Federation makes the situation even more complicated. Thus, the subject of this research is different doctrinal interpretations of the term 'forgery' and judicial practice. The methodological framework of the research covers such methods as analysis and synthesis, comparative law analysis, system-structured and formal law approaches, theoretical prognistic method and interpretation of legal provisions. The novelty of the research is caused by the fact that the author offer their own definition of the term 'forgery' and concludes that forgery and forgery documents/items are compatible and intersecting terms. The authors also conclude what criteria of truth and authenticity can be used to describe items/documents as forgery-counterfeiting, forgery but not counterfeiting and counterfeiting but not forgery. They also make recommendations on what amendments should be made in the applicable law. 

Przełamanie rezultatów wykładni językowej zgodnie z zasadą nadrzędności konstytucji

Przedmiotem artykułu jest analiza dopuszczalności przełamania rezultatów wykładni językowej – na podstawie wykładni prokonstytucyjnej – przez odejście od alternatyw interpretacyjnych wynikających z możliwego sposobu rozumienia wyrażeń użytych przez ustawodawcę w treści przepisu. Autor argumentuje w nim, że zasada hierarchiczności aktów prawnych oraz nadrzędności konstytucji w połączeniu z faktem, że ustawa zasadnicza implementuje do porządku prawnego aksjologię będącą podstawą funkcjonowania ładu demokratycznego państwa prawnego, sprawia, iż w sytuacji, gdy zastosowanie litery przepisu prowadzi do rezultatów sprzecznych z zasadami lub wartościami konstytucyjnymi, zastosowanie znaleźć powinna zasada lex superior derogat legi inferiori, co pozwala na przełamanie granicy językowej interpretacji przepisu.

THE IDEA OF LAW AND ITS ROLE IN THE DEVELOPMENT OF THE DOCTRINE OF INTERPRETATION OF LAW: HISTORICAL AND THEORETICAL ANALYSIS OF THE GERMAN LEGAL DOCTRINE IN THE 19<sup>TH</sup> — THE FIRST HALF OF THE 20<sup>TH</sup> CENTURY

The article is devoted to the analysis of theoretical provisions of the main schools of German jurisprudence in the 19th — the first half of the 20th century in the context of legal consciousness and interpretation of law. The article determines the main theoretical premises of such important academic areas as: the Historical School of Law, Jurisprudence of Concepts, Jurisprudence of Interests, the School of Free Law, Legal Positivism and Neo-Cantianism. The author considers scientific works of the main representatives of these schools. The development of concepts of law and interpretation of law in the German legal doctrine demonstrates the connection of the doctrine of interpretation with the idea of law and real legal life. The historical period under consideration witnessed the work of many outstanding lawyers whose teachings had an impact not only on the legal science of many countries of Europe and Russia, but also on the legal doctrine of individual States belonging to the Anglo-Saxon legal family. Despite the different nature of their teachings, there is a link between the idea of law and their approach to the interpretation of legal provisions. This interaction is also inverse, many scholars have solved the problem of the essence of law by resorting to interpretive procedures. Tendencies similar to the tendencies typical for the German legal doctrine have found support both in the judicial practice of German courts and in the practice of the higher courts of the European Union. The article concludes that further development of the doctrine of interpretation of law requires not only the development of the methodology of interpretation of law, but also further developmentss in the philosophy of law.

O roli precedensu i pewności prawa w niemieckim prawie prywatnym

The article discusses the role of precedents in the German judicial practice. In the European continental tradition, law enactment is within the legislature, whereas the role of the judiciary is to enforce law. In the continental system, precedent does not constitute a source of law sensu stricto , that is, a formal source of law. In order to guarantee the law utility and, ultimately, the legal certainty, courts interpret legal provisions in a unified manner. It is noteworthy that during the recent years the coherent interpretation of legal provisions and, by the same token, the commitment to law development, have increased. That means that a unified interpretation of law performed by courts may be considered a precedent. In this context, precedents and stare decisis have been replacing the logical interpretation of law in German courts.

INTERPRETATION OF LEGAL PROVISIONS

summary. The author examines concepts, views, goals and ways of interpreting the law, and gives the definition and implementation of the rules of interpretation regulations. Provides that the interpretation of the law refers to activities aimed at establishing their content, to the disclosure of the will ruling social forces expressed in them. Special attention is given to the judicial interpretation and its role in ensuring the consistency of enforcement, as well as the problem of interaction of legislation and judicial practice. Keywords: interpreting the law, judicial interpretation, judicial practice, legislation, consistency of enforcement, interpretation regulations. 1. Concept of the interpretation of legal provisions ТInterpretation of the law means realising and explaining it. Reasons for interpreting legal rules are various: a need for uniformity in the application of the same law by different people; the complexity and ambiguity of regulations; and contradictions between laws and other features of legislative texts. Shortcomings in legislation and defects in texts are also reasons for interpretation.The interpretation of legal provisions has to serve the purpose of a correct and uniform understanding and application of the law, and of identifying the essence of what is contained in the legislator’s verbal formulation.Interpretation is necessary to promote identification of the exact sense of legal provisions.Interpretation combines clarifying (for the interpreter) and explaining (for others) the sense of a law. Clarification and explanation are interconnected parts of the process of the interpretation of the law. Interpretation can begin as clarification but move on to explanation. The person who carries out the interpretation is called an interpreter.Interpretation of the law involves the process of thinking in order to establish the content of legal provisions, by finding out the meaning and sense of terms and expressions (the signs of a natural language) contained in regulations. Interpretation is an internal process of clarification that does not go beyond the consciousness of the interpreter. This characterises the gnoseological (informative) nature of interpretation. Clarifying legal provisions requires creative, intellectual and determined activity by the interpreter. The effect of the realization of the interpretation depends in many respects on the correctness, completeness

¿Cabe la cancelación de registro por falta de uso respecto de una marca notoria? MANICHO, una historia digna de ser contada.

El presente trabajo tiene como objetivo exponer y analizar uno de los casos más relevantes del Ecuador en el ámbito marcario, el cual surgió como consecuencia de los problemas de liquidez de la compañía La Universal S.A., y en el que la autoridad solventó un vacío existente, tanto a nivel comunitario como local, en la legislación sobre Propiedad Industrial respecto de la amplia protección jurídica que gozan las marcas notorias. Durante el trabajo se expone cómo la autoridad nacional competente en base a este caso, logró aclarar ciertas dudas que giraban en torno a la posibilidad de cancelar, por falta de uso, el registro de una marca notoria; y cómo la resolución del presente caso ayuda, de igual forma, a tener una mejor interpretación de las disposiciones contenidas en la legislación comunitaria respecto del tema.

An Overview to the Exchange Rate Stability as A Criterion of the Accession to the Euro Zone

An Overview to the Exchange Rate Stability as A Criterion of the Accession to the Euro Zone The paper's objective is to present the results of an analysis of the exchange rate convergence criterion fulfilment by the European Union member states which still use their national currencies and the indication of the fundamental determinants that affect their ability to meet it. There is essential legislation on this criterion indicated, as well as on the ERM2 system which is directly related to it, and the stability of the currencies of EU countries is also briefly examined. The major conclusions include the statement that the interpretation of legal provisions on the exchange rate convergence crite rion allows large subjectivity in assessing its fulfilment by each country. On the other hand, significant fluctuations in exchange rates during recent years, can impede considerably their stabilisation prior to the accession to the euro area and extend the necessary stay in ERM2 system, which in turn will in crease the risk of speculation connected with it. Therefore, justified to a certain extent may seem pro posed abolition of the obligation to formal accession to ERM2 and replacing it with a quantitative criterion related solely to exchange rate fluctuations.

A Recipe for Chaos

In this article, the authors explain that, in an orderly legal system, clarification and interpretation of legal provisions by the courts is a step-by-step process. At every stage of the process, the courts are bound by previous decisions, and each new judgment will refine and clarify the rules set by the court’s predecessors. It is thus that the system of “following precedent” imposes order on a legal system. The chaos which ensues when that system is not followed is well illustrated by the decision of the Court of Justice of the European Union in AB SKF.