Judicial Control Research Articles

Judicial control over the execution of decisions involving military personnel in the civil justice system of Ukraine

The article is devoted to the issue of judicial control over the execution of decisions involving military personnel in the civil justice system of Ukraine. It has been established that when executing a court decision, the executor can seize any funds in the debtor's bank accounts, except for those whose seizure is prohibited by law. At the same time, it is the bank that executes the corresponding resolution of the executor on the seizure of the debtor's funds that must determine the status of the funds and the account on which they are located, and in the case of funds on the account that are prohibited from being attached, the bank is obliged to notify the executor of the intended purpose funds on the account and return its decision without execution, which is the basis for the executor to remove the seizure from these funds. At the same time, a garnishment cannot be imposed on the funds that make up the debtor's salary after actual deductions from it according to executive documents and on all funds from the debtor's salary beyond the limits of the amounts of deductions from such salary allowed by law, and if such a garnishment is imposed, then it should be removed. At the same time, such restriction does not apply to funds that are in accounts and that are not funds that make up wages. the state guarantees and protects by law the citizen's right to timely remuneration for work. The company's payment of wages to employees has priority over the repayment of debts to other creditors of the company. The imposition of a seizure on the debtor's account, which is also intended for the payment of wages and other payments to the debtor's employees, makes it impossible to make such payments in a timely manner, which inevitably leads to a violation of the constitutional rights of citizens who work at the defendant's enterprise to pay for work. Accounts that are intended for the payment of wages and the payment of taxes, fees and mandatory payments to the State Budget of Ukraine are accounts with a special regime, on which the executive service, in accordance with the requirements of the law, does not impose a seizure, and the separation of such accounts belongs to the powers of the executive service.

Instruments of Judicial Control: Judicial Review & Judicial Activism and Need for Judicial Restraint in India

The active role of the Indian judiciary, particularly of Supreme Court and High Courts has been widely appreciated both within as well as outside India. The independence ensured through the constitutional provisions in favour of the judiciary and subsequently strengthened by the judicial interpretation has definitely contributed to the present status of independent, powerful and impartial status of the Indian judiciary

Weak Procedural Constitutionalism. The Judicial Process as Legitimacy of Judicial Review

Abstract This paper proposes a synthesis that renders democratic principles compatible with the preservation of judicial control of constitutionality. This has been mediated by what I have called ‘weak procedural constitutionalism’, a methodology through which constitutional conflicts are debated in the legislature and among the citizenry as the real holders of the final say in society, with judicial activity focused on an intermediate say and the promotion of subsequent social deliberation. The judicial process thus becomes a public dialogical procedure susceptible to intervention by citizens and capable of generating public information processes facilitating accountability. The constant quest for instrumentalities that increase the democratic legitimacy of constitutional courts is an existential necessity. Only through real opportunities for dialogue and citizen participation in the decision-making process can judicial review be made democratically palatable. This requires that both judges and legislators play an intermediate rather than primary role, one in which democratically elected legislatures enjoy a high degree of legitimacy in adopting decisions, in juxtaposition with the derivative legitimacy appurtenant to constitutional courts. The premise for the exercise of what I denominate as weak constitutionality control, or the hypothesis for a weak procedural constitutionalism, is a possible synthesis of the tension between constitutionalism and democracy, with emphasis on the Colombian case.

Judicial control over the implementation of the award in disputes of administrative contracts (A comparative study)

Judicial control over the implementation of the award in disputes of administrative contracts (A comparative study)

Administrative Plan, Land Laws and Judicial Control

Administrative Plan, Land Laws and Judicial Control

Genezis konstitucionno-pravovoj formalizacii instituta sudebnogo kontrolya

The article presents the results of the author's analysis of the constitutional and legal formalization of the institution of judicial control in the Russian state. The relevance of addressing this topic is justified by the variety of legislative provisions, as well as the results of scientific research, which are rather fragmented than an orderly system. Within the framework of the institutionalization of judicial control being developed, this issue has important scientific and practical significance.

WHICH POWER DECIDES ON THE BASIC HUMAN GOODS OF JOHN FINNIS' NATURAL LAW THEORY IN BRAZILIAN DEMOCRACY?

The work presents a description of the basic human goods in Finnis' theory (2007), which are: knowledge, life, play, aesthetic experience, friendship, practical reasonableness and religion. To then question which power has the basis to decide on basic human goods in a democracy. The article brings jurisprudence from the Federal Supreme Court in which the court ruled on basic human values, that is, basic human goods shaped outside the political arena, configuring a possible obstruction of the channels of democratic alternation and popular control. To explain the strengthened judiciary power, the text repeatedly uses Hirschl's theory (2020), which asserts that one of the causes of the strength of the judiciary is the avoidance of politicians in making difficult moral or political decisions, which, once decided, rarely present absolute numbers. of winners, therefore, with political spoils that are difficult to manage. This movement between powers causes a transfer of the locus of political debate, which migrates from the powers constituted by direct representatives of the people to the courts, reaching the doctrine about the separation of powers and democracy, otherwise let's see: basic human goods being designed by judges in to the detriment of powers that reveal popular sovereignty. The tension between democracy and judicial control of pure politics, apparently, is revealed when we analyze that a counter-majority court would have the last word in democratic processes for delineating the major political issues of a country.

Comparative characteristics of constitutional and judicial law-making (on the example of Republic of Kazakhstan and USA)

Relevance. The Republic of Kazakhstan experienced an authoritarian regime that shaped a bureaucratic approach to the rule of law. Therefore, the application of positive experience in the formation of a democratic society, the study of the constitutional law of the USA, should serve as a criterion for the formation of one�s own constitutional traditions.Purpose. The purpose of the work is to identify the main tasks, ways and methods of law-making of the judicial branch of government in the law-making of the legal state of the Republic of Kazakhstan in comparison with the USA.Methodology. With the help of methods of analysis and synthesis, the main functions of the country�s judiciary within the framework of constitutional law, which determine the vector of development of the constitutional state, were determined. Using a comparative analysis, the relevant aspects of the formation of a democratic state were considered.Results. In the course of the study, examples of court decisions that created judicial practice and deepened experience in the field of judicial control over the constitutionality of laws in general and judicial control over amendments to the Constitution were considered. On the basis of common features, the main regularities of the evolution of law-making with the participation of the judiciary have been determined. The issue of the need to improve the mechanisms of courts� participation in the processes of development of the institution of constitutionalism was raised.Conclusions. The practical significance of the study lies in the identification of new forms of state regulation in the law-making system with the direct participation of courts of various branches of the Republic of Kazakhstan, as well as in the identification of shortcomings in the Constitution in terms of the regulation of court activities and their influence on the formation of legislative documents.

Judicial Control Over Arbitration in Administrative Disputes (Comparative Study)

Judicial Control Over Arbitration in Administrative Disputes (Comparative Study)

О контроле высших судов за делегированным законотворчеством

The article examines the legal phenomenon of delegated lawmaking in the context of the control of higher courts. The study is conducted taking into account recent events — the development of legislation under the influence of the consequences of the COVID-19 pandemic. The analysis of both positive and negative aspects related to judicial control over the specified legal institution is given. The article raises the question of the regulatory regulation of delegated lawmaking in Russia.

СУДЕБНЫЙ КОНТРОЛЬ ЗА ОБЕСПЕЧЕНИЕМ ПРАВ И ЗАКОННЫХ ИНТЕРЕСОВ ОСУЖДЕННЫХ

Based on the current international, Russian legislation and judicial practice, the article provides a doctrinal analysis of law enforcement practice in the field of judicial control in ensuring the rights and legitimate interests of convicts. The obtained research results make it possible to conclude that there is a practical expediency in strengthening the role of the court at the legislative level in the implementation of judicial functions when changing the conditions of serving a sentence, transferring a convicted person to a chamber-type room, a single chamber-type room. The position on the need to create specialized penitentiary courts in the Russian Federation is noted and justified. The article reflects the author's subjective position on this issue.

Определение компетенции суда по участию в процессе доказывания при осуществлении судебного контроля на досудебных стадиях уголовного процесса

The article discusses problematic issues of determining the competence of the court to carry out investigative and other procedural actions in the exercise of judicial control at the pre-litigation stages of the criminal procedure. The author comes to the conclusion that it is inadmissible to limit the list of investigative and procedural actions in comparison with those that the court is authorized to carry out when considering a case on the merits. At the same time, criteria are proposed that the court should follow when deciding on the necessity and possibility of carrying out a separate investigative or other procedural action. The application of these criteria varies depending on which group the evidence received by the court belongs to. The article also deals with the issue of using evidence obtained during judicial control in the investigation of the main criminal case.

History of appeal of notarial deeds or refusal to perform them in court in Ukraine (late 18th - early 20th centuries)

The article is devoted to judicial control over notarial activities during the times of Austrian and Russian rule on Ukrainian lands (end of the 18th - beginning of the 20th century).
 It is noted that the 19th century is a significant period for the domestic notary, since it is at this time that it is formed as an independent institution in the system of law enforcement agencies. Two types of notaries were built on Ukrainian lands as part of the Austrian and Russian empires: Latin and state. As a result, the author conducts a comparative legal study of the mechanism of challenging notarial actions or refusal to perform them in court in different types of notary offices that were built in Ukraine at that time.
 It is claimed that the Russian notarial legislation was based on the Austrian one, in particular the Austrian Notarial Order of 1855 was laid as the basis of the Russian Regulation on the Notarial Part of 1866.
 It is concluded that it was not possible to build a Latin-type notary in Russia due to the lack of civil society and the prerequisites for its formation, as well as the desire of the state to put notary bodies under its control.
 On the other hand, the mechanism of judicial control over the activities of notaries in the two empires was similar. A notary public could be subject to civil, criminal and disciplinary liability for failure to fulfill his duties. It was within the framework of the latter that the institution of judicial appeal of notarial acts or refusal to perform them developed. Disciplinary proceedings carried out by the courts (in Austria also by the notary chamber as a notary self-governing body) regarding the consideration of such complaints were carried out outside the civil process, but it was possible to file claims to challenge the legal force of notarial acts under the rules of civil procedure. This was allowed by both the Russian Statute of Civil Procedure of 1864 and the Austrian Civil Procedure Code of 1895.

Prerequisite for implementation of judicial control over the enforcement of judgments in Ukraine

Since the declaration of Ukraine’s independence, the system of enforcement judgments has undergone significant changes, which were caused by changes in the social order in the country and new challenges. The judicial control over the enforcement of judgments in Ukraine was implemented in a non- systematic manner, which led to its low efficiency.
 To solve the set goal, which was set during the introduction of judicial control over the enforcement of judgments, this article examines the prerequisites for the introduction of judicial control over the enforcement of judgments in Ukraine.
 Conditional division of the prerequisites for the introduction of judicial control over the enforcement of judgments into historical, legal and economic ones has been carried out.
 The historical prerequisites for the introduction of judicial control over the enforcement of judgments include the validity of Soviet legislation after the declaration of independence of Ukraine, which provided for control by a judge over the correct and timely enforcement of a court decision, that is, the actual exercise of judicial control over the enforcement of judgments.
 The legal prerequisites for the introduction of judicial control over the enforcement of judgments include the issuance of many decisions of the European Court of Human Rights and decisions of the Committee of Ministers of the Council of Europe, which stated the systematic non-implementation of national court decisions, as well as the existence of a structural problem in Ukraine regarding the non­implementation of decisions of national judicial bodies.
 The economic prerequisites for the introduction of judicial control over the enforcement of judgments include a negative assessment by Ukrainian entrepreneurs of the effectiveness and duration of enforcement judgments, Ukraine’s undertaking to reform the system of enforcement judgments to improve the conditions of doing business in the country, foreign economic relations with other countries, attracting investments, the conclusion of other economic agreements.
 Determining the prerequisites for the introduction of the institution of judicial control over the enforcement of judgments gives a clear answer to the purpose of the introduction of this institution, as well as ways to improve the procedure and forms of implementation, which requires more detailed research.

Observance of due process of law in the investigating judge’s rulings

The article analyzes the investigating judge’s rulings and the process of their issuance with a view to ensuring compliance with the due process of law. Due process of law in criminal proceedings means the procedure (rules, algorithm) of actions and procedural decisions necessary to fulfill the tasks of criminal proceedings regulated by the Criminal Procedure Law (CPC), which is provided and used by the subjects involved in criminal proceedings and is available to the subjects involved in the criminal procedure sphere. According to the author, the procedural status and functions of an investigating judge in criminal proceedings determine the specific (distinctive) relationship of his/her activities with the category of “due process of law”, which is caused by the exercise of judicial control over the observance of the legal procedure provided for by law during pre-trial investigation and international cooperation in criminal proceedings.
 The level of observance of due process during the pre-trial investigation and international cooperation in criminal proceedings is reflected in the decisions of the investigating judge. Also, the decision of the investigating judge must be made in accordance with the established rules - in due procedure and form. It is substantiated that despite the fact that an investigating judge is legally enshrined as a subject of making rulings in criminal proceedings (amendments to Article 369 of the CPC, 2019), a number of rule-making approaches to this activity need to be adjusted. The author proposes to understand the decision of an investigating judge as a judicial act in the form of a ruling on procedural issues within the competence of an investigating judge aimed at fulfilling the tasks of criminal proceedings and exercising the function of judicial control in pre-trial investigation in accordance with due process of law, which establishes the rights and obligations for the subjects of criminal procedural legal relations involved in a particular procedural activity (investigative (search) actions, measures to ensure criminal proceedings, extradition). It outlines the peculiarities of the requirements to the investigating judge’s rulings and the procedure for their issuance. The author’s vision of improving the provisions of the CPC of Ukraine in the context under study is expressed.

The Role of State Control in the Implementation of Legislation on Local Self-Government

This study aims to identify and solve problems related to the implementation of legislation on local self-government through state control mechanisms. The current national legislation of Ukraine has several shortcomings in this area. The system of administrative courts is designed to resolve these issues. Control functions of the state about local self-government bodies can be subject to abuse of power, as evidenced by the lack of the expected efficiency. Moreover, the state currently exercises administrative, financial, parliamentary, and judicial control. It is proposed to single out public control as a separate form to eliminate the existing shortcomings of the practical application of the control functions of the state about local self-government. The lack of unity in the practice of applying the current rules of law on state control in this area shows that the problems related to the protection of local self-government bodies from state intervention have not been resolved. Local self-government bodies have only judicial means of protecting their independence from the state. This creates problems in ensuring balanced territorial development. Therefore, further research should focus on studying the possibilities of performing the control function in the field of local self-government not only by the state but also by the beneficiaries and civil society institutions.

The moderating role of institutions between FDI and GDP: evidence from China and India

Several research efforts were dedicated to analysing the effects of foreign direct investment (FDI) inflows on gross domestic product (GDP) and employment in the host economies. The variations in the conclusions signal that other variables influence and moderate the effects of FDI on GDP and employment. Institutional elements receive limited research attention, despite their influence on the host economies. This paper investigates the moderating role of institutional elements in the FDI-host economies on FDI’s effects on GDP and employment with China and India as case studies. The approach utilises three principal methodologies. The first methodology presents an in-depth analysis of China and India, highlighting selected institutional elements with the potential to influence FDI’s effects. The second methodology confirms the presence of a positive correlation between FDI and GDP and a negative correlation between FDI and employment-to-population ratio (EPR) in both China and India. The FDI, GDP purchasing power parity per capita, and EPR datasets are extracted from the World Bank – DataBank World Development Indicators to ensure the consistency of the data. The results of the quantitative analysis validate the qualitative analysis. The qualitative analysis confirms the moderating role of the selected institutional elements with variations in direction and strength. Significant variations in FDI’s effects on GDP and employment are strongly related to variations in the institutions of governance. The institutions of governance include the functionality of the state organs, the efficiency of the legal system and enforcement of the rule of law, and the quality of implementation of FDI-supportive policies. The findings aim to increase the absorption of the positive effects of FDI on GDP and employment in the respective countries. The research is a cornerstone of in-depth future research into the following areas: the role of selective FDI and constructive conditional FDI policies, the functionality of judicial authority controls, and FDI favourable exchange rates and interest rates policies. The novelty and contribution of the paper lie in its comprehensive exploration of the moderating role of institutional elements on the effects of FDI on GDP and employment in host economies, with a specific focus on China and India. The paper contributes significantly to the academic literature on FDI and economic development by emphasising the importance of institutional factors and providing actionable insights for policymakers and researchers.

Ensuring Sustainable Development of the Kyrgyz Republic: The Impact of Administrative and Judicial Control on the Construction Sector

The article analyzes the legal framework of administrative justice and administrative-judicial control in the Kyrgyz Republic from the point of view of protecting human and civil rights and freedoms for the construction sector. The trends in the development of these institutions in the country are considered. The article examines the features of administrative and legal regulation, elements of administrative law, from the point of view of their direct connection with the problem of ensuring human rights and freedoms and Citizen. Administrative and judicial control is disclosed in the forms determined by the specifics of relations in the specified industry. The main problem in the Kyrgyz Republic today is the creation of mechanisms of administrative justice that would fully ensure the rights and freedoms of man and citizen, guarantee the effectiveness of the judicial system itself, as well as the rule of law. The purpose of this study is to analyze the legal foundations of administrative justice and administrative-judicial control in the Kyrgyz Republic in the context of the protection of human and civil rights and freedoms in the field of public administration for construction. The main research methods are the formal legal and comparative legal methods.

О некоторых аспектах судебной защиты публичных прав в России

The article deals with the problem of procedural features of consideration by courts of cases of a public law nature. The author proceeds from the fact that the state, its subjects, municipalities represented by the relevant bodies and authorized officials are the obligatory party of the public law relationship. At the same time, in a public legal relationship, its subjects are in a relationship of power and subordination. The specificity of public law is due to its belonging to an unlimited circle of persons, which naturally produces the impossibility of disposing of it by a specific, individual subject, including in the procedural sphere. Because of this, procedural administrative rights (refusal of a claim, recognition of a claim, the right to conclude a settlement agreement) in proceedings on cases arising from public legal relations (administrative proceedings) should be limited, and judicial control in their commission should be strengthened. The author differentiates cases subject to consideration according to the rules of administrative proceedings into administrative and public law cases, arguing that in public law cases, the mandatory participation of the prosecutor should be fixed, with a positive conclusion of which the parties have the opportunity to perform administrative procedural actions. It is noted that the state, its subjects and bodies can become participants in civil law relations, disputes from which are resolved in civil and arbitration proceedings, claims proceedings, the rules of which should also be modified taking into account this circumstance. Thus, it is proposed to fix the mandatory participation of the prosecutor in lawsuits, if one of the parties to the legal conflict is a public authority.

Administrative Procedure Code: a Controversial, but Feasible Idea

The subject of the study is the issues of codification of administrative procedural and administrative tort legislation. The complex issue of its codification requires a thorough analysis of a number of fundamental theses for further argumentation of the author's position regarding the improvement of the institutional foundations of codification both from the standpoint of scientific and methodological development and practical implementation. The need to codify administrative proceedings is due to the fact that the reform of the administrative procedure will be incomplete without improving the CAS of the Russian Federation in terms of including the provisions of the APC of the Russian Federation and the procedure for considering cases of administrative offenses and strengthening judicial control over the actions of administrative jurisdiction bodies by reforming the procedural mechanism for considering cases of administrative offenses by courts of general jurisdiction (option arbitration courts according to the rules of the RF PACS). The goals are achieved using the methods of historical, systematization, synthesis, and special legal methods. The scientific idea of the formation of the procedural form of administration is argued, the scientific idea of the formation of the procedural form of administrative legislation is documented, which means only the judicial procedure for the consideration of cases, including administrative proceedings and proceedings in cases of administrative offenses. Practical recommendations are formulated on reforming the legislative and organizational foundations in the field under study and the adoption of a basic law on the procedure for the implementation of administrative proceedings when considering and resolving administrative cases by courts on the protection of violated or disputed rights, freedoms and legitimate interests of citizens and organizations, as well as other administrative cases related to the exercise of judicial control over the legality and validity of public powers, namely, the Administrative Procedural Code of the Russian Federation (as a variant of the Procedural Administrative Code of the Russian Federation - PAK RF). An invitation to the discussion is published.