Judicial Law Enforcement Research Articles

Legitimacy of Subjects of the Right to Judicial Protection in the Law Enforcement Practice of Land and Property Disputes Resolution: Formulation of the Problem

The article is devoted to the study of the problems of the ownership of the plaintiff and the defendant as parties to a land-property dispute in the current law enforcement practice of courts of general jurisdiction. The author emphasizes that the primary task of the judicial branch of government and a specific court as its representative is to correctly determine the subject composition of the case, the subject of which is the resolution of a land and property dispute. Achieving the specified task has two main consequences: obtaining legal protection of the violated, unrecognized or disputed right by the proper “offended” person and placing responsibility for the committed encroachment on property rights on the actual violator. The article analyzes the procedural institution of replacement of an improper defendant as a mechanism designed to ensure the implementation of the principle of ownership of the parties to the dispute in the civil process. In particular, the author drew attention to the fact that in the judicial practice of courts of all instances, the terms “proper plaintiff” and “improper plaintiff” are used, the definition of which is not contained in the current civil procedural legislation. In addition, the article analyzes the judicial law enforcement practice formed in the part of replacing an improper party in cases for the resolution of land and property disputes and formulates relevant conclusions regarding the ambiguity of the positions of courts of general and administrative jurisdiction in this matter. The author conducted a comparative analysis of the legal regulation of the institution of replacement of the proper party in a dispute under civil and administrative procedural legislation. Based on the results of the research, the author outlined the scientific and practical aspects of the investigated issues in this field of civil procedural law. In particular, the author comes to the conclusion about the inconsistency of the legislator’s vector regarding the development of an effective procedural mechanism for the protection of the rights of subjects of land legal relations, which in turn creates prerequisites for possible abuse of the court’s procedural powers.

The dividend policy of business entities and the analogy of law

Author discovers uncertainty that generates ambiguous administrative and judicial law enforcement on the issue related to the limits of business entity freedom in the creation and implementation of dividend policy. Importance of such insufficiently clearly regulated by corporate legislation aspects of the dividend policy as the scope of corporation's powers and limitations in determining frequency of making decisions on dividend payments and timing of the actual distribution of profits among the corporation's participants is shown. Special relevance of the doctrinal study and regulatory clarification of the relevant legal parameters of the dividend policy of domestic corporations is associated by the author with the need to overcome the negative consequences of the sanctions impact of unfriendly foreign states. The presented author's approach is aimed at ensuring greater variability of corporate and legal interaction and increasing the efficiency of business entities. Special technical and legal tools were used in the study, including the method of analogy, as well as civilistic means of analysis and synthesis, comparison and generalization. The idea of the possibility and practicability of flexible negotiation of this uncertainty based on the normative construction of the analogy of law, on the basis of the general principles and meaning of civil legislation, as well as through the analogical use of explanations on understanding of the imperativeness and optionality of legal norms contained in the Resolution of the Russian Federation Supreme Arbitration Court Plenum dated March 14, 2014 No. 16 «On freedom of contract and its limits» is argued. As a result, conceptual admissibility of «nonmonotonic» dividend accruals, not linked to calendar quarters has been proved, as well as the possibility of large delays in the actual payment of declared dividends in comparison with the periods pre-established by norms. Main conditions for the implementation of such a measure of freedom in determining dividend policy are identified, namely its focus on achieving a balance of corporate interests and availability of an actually generated net profit for a business entity.

О роли нравственности в современном цивилистическом процессе (аксиологический подход)

The article analyzes regulatory and scientific materials, the judicial practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, legal axiology to review the legal category of good faith as an element of morality of the civil procedure, describes the authors’ understanding of its role in the judicial law enforcement process, creates a model of the development of the idea of good faith as supra-law, where good faith is one of the elements of the public law and order of the Russian Federation.

Восстановление нарушенных прав граждан средствами конституционного правосудия: проблемы теории и практики

The article shows the specifics of restoring the rights of citizens violated by unconstitutional norms of legislation, by revising the judicial acts previously issued in relation to them under the influence of the adopted decision of the Constitutional Court of the Russian Federation. On the basis of a systematic study of the practice of the highest judicial body of constitutional control, the main ways of influencing its decisions on judicial law enforcement in order to restore the rights of citizens who applied to the Constitutional Court of the Russian Federation are considered. The possibilities of using the means of constitutional justice to restore the rights of persons who were not participants in constitutional proceedings are shown, which appeared as a result of the 2020 reform.

Judicial practice of Ukraine on consideration of public procurement disputes from the perspective of European Union standards

Within the framework of harmonization of national legislation with EU standards and compliance with the requirements of the Association Agreement with the EU in the field of public procurement, there are still many problematic issues that arise at the level of law enforcement practice and are illustrated in the judicial practice of national courts. Judicial practice is a living law, the analysis of which helps establish the quality of legislation in this area and offer a further map of reforms. The purpose of this study was to analyse judicial practice in the field of public procurement after the adoption of the new version of the Law of Ukraine “On Public Procurement”, as well as to assess the national approach to the standards of the European Court of Human Rights. The methodological framework of this study included both philosophical, ideological, and general scientific methods, as well as a number of special scientific ones. The terminology was analysed primarily through the lens of the dialectical method; the method of document analysis served as the basis for investigating the legal practice of the Supreme Court of Ukraine. At the same time, the method of analysis, synthesis, and comparative method were also applied. The paper presents and examines the dynamics of harmonization of national legislation with European Union standards for the period from 2015 to the present. By analysing the law enforcement practice of the Supreme Court on the most high-profile court cases in Ukraine in the field of public procurement, practical conclusions were drawn and an appropriate legal assessment was given. The conclusion was substantiated that the harmonization of national legislation in the field of public procurement pursuant to the requirements of the European Union has not yet been completed in Ukraine. Attention was focused on numerous regulatory shortcomings of the law enforcement process, specifically at the sub-legislative level. The practical value of this study lies in the fact that it examines both doctrinal approaches and theories regarding ideal concepts of public procurement, and judicial law enforcement practice as a living example that can show the real state of legal regulation, as well as gaps in regulatory application.

Феномен корпоративного конфликта: понятие, субъекты, интересы

Based on the results of a study of current judicial law enforcement practice, the article examines the phenomenon of corporate conflict. The author compares the basic approaches to the definition of the concept, and highlights the qualifying signs of a corporate conflict. The author highlights the key (generic concept), essential (subjects and relations) and significant (interests) elements of the corporate conflict definition. The operation of this structure in the field of corporate governance, preparation for litigation, actual participation in arbitration proceedings and administrative proceedings is associated with certain applied problems associated with the lack of a definition of this concept not only in the text of the law, but also in the generalizing documents of the highest court country, the substantive discrepancy between the criteria of this institution proposed by judicial practice and the starting (legal) definition of a corporate conflict, the diversity of criteria that provide, in the author’s opinion, an excessively wide fairway for situational and evaluative judgments in the process of assessing evidence of interested parties in corporate discussions, administrative proceedings and litigation disputes. The author emphasizes the openness and intensity of the corporate conflict as qualifying features of its definition, and the author comes to the conclusion that a corporate conflict cannot be considered simply a disagreement of the parties, but only an active confrontation or dispute between the parties. The author separates the corporate conflict from other types of conflicts: operational, organizational, interpersonal and legal. The paper describes the types of possible participants in a corporate conflict. Referring to specific examples from the sphere of domestic arbitration practice, the author pays great attention to the society itself and stakeholders, as independent subjects of a corporate conflict. The author emphasizes the vagueness and ambiguity of some terms that qualify corporate conflict, such as “goals”, “interests”, “motives”. The work reveals the motivational, causal side of a corporate conflict, considers the diversity of interests of the parties that are the subject of a corporate conflict.

Mental Health: New Approaches to an Old Problem

An overview of scientific advances in our understanding of mental illnesses over the last half century is considered within the Ghanaian context. Mental illnesses result from a complex interplay of brain circuitry, neurotransmitters, genetics, psychosocial and environmental factors. Stigma, based on ignorance continues to be a significant barrier to care in Ghana. Additionally, the high cost of mental illnesses resulting from prolonged disability, lost productivity and direct and indirect treatment costs should inform strategicplans for the prevention and treatment of psychiatric illnesses. With a psychiatrist to patient ratio of 1:2 million people, it is imperative that all physicians and other healthcare providers be psychiatrically informed practitioners, if we are to adequately care for our mentally disabled citizens. Psychiatric illnesses are significant in at least 50% of primary care visits. Untreated, they contribute to poormedical outcomes and suicide. Major psychiatric and substance use disorders are chronic medical illnesses of the brain, essentially no different from chronic illnesses of other organs like diabetes and hypertension. Implementation of the Mental Health Law, should beguided by scientific evidence and proven multi-modal treatments, including psychopharmacology and culturally informed psychotherapeutic and communitybased interventions. The law should form the basis for inter-disciplinary training in public mental health education and stigma reduction among teachers, nurses, physicians, social workers, judicial law enforcement agencies, pastors and others. Modern communications technology is currently underutilized in supporting sustainable solutions that offer protectionof human rights and the promotion of resiliency and recovery, based on scientific evidence.

Официальное толкование норм права как инструмент построения российского правового государства

Introduction: the practical implementation of the idea of the rule of law requires the fullest provision of human and civil rights and freedoms, as well as restrictions on the right of state power. Despite the existence of the necessary legislative framework, contradictions and uncertainties periodically arise in the legal activity regarding the ways of further implementation of the law. The official interpretation of the norms of law helps to cope with this task, which allows for clarity and semantic certainty in the legal regulation processes. Purpose: the demonstration of the use of the official interpretation of legal norms as an independent means of maintaining the efficiency of the rule of law. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are systematic, analysis, statistical, historical. Results: the author’s position substantiated in the work is based on the study of the place and practice of using the official interpretation of the legal norms in the construction and maintenance of legal statehood. This is facilitated by the analysis of signs of the rule of law, the normative statistical data, the judicial law enforcement practice, as well as the individual interpretative acts. Conclusions: as a result of the conducted research, it is found that the role of the official interpretation of the legal norms as a tool to promote the efficiency of the rule of law is invaluable and irreplaceable. In fact, the official legal interpretation today is one of the most effective non-alternative means of not only revealing the meaning of laws, but also increasing trust and respect for the law, its knowledge and acceptance as a priority regulator of public relations. The idea of a rule-of-law state will remain an idea, without the use of legal interpretation activities in the legal sphere of society.

Деструктивные функции корпоративного конфликта

The article, based on the results of a study of current Russian economic, corporate management and judicial law enforcement practice, analyzes the negative impact of corporate conflict on business development, its social and reputational resource. Based on the analysis of specific cases, the author shows that a domestic corporate conflict destroys a business or destabilizes a company’s activities. A corporate conflict has the ability to generate new corporate conflicts, and contains “explosive material”, the detonation of which, under certain conditions, destroys family and other personal ties. Also, a corporate conflict encourages its weak side to vigorously use the potential of administrative law against the target (base) company and its main beneficiaries, thereby expanding the springboard for “military operations”. The article substantiates the conclusions that a large- scale corporate conflict between the leading participants of the company competing for shareholding control is fraught with the emergence and development of risks for minority partners who are not directly involved in the conflict. The author believes that certain corporate conflicts in the bowels of a Russian company operating abroad may become the basis for the application of certain sanctions to it under the laws of countries that are subject to extraterritorial application. Long-term corporate antagonisms destabilize the socio-psychological atmosphere in the workforce of companies that have become their main platform, and can become the basis and cause of panic among top managers and leading specialists, thereby contributing to a decrease in the efficiency of personnel, macrosocial, including macroeconomic and “ the negative effect of corporate conflict is inevitable.

The legal principle of the newest system of Ukrainian law in the activity of the judiciary is legalized

The purpose: to study the rule of law as a principle in the judiciary in such aspects as to clarify the origins of the idea of the rule of law, the relationship between the concepts of the rule of law and the judiciary, analysis of relevant doctrine in Ukraine. Methods: dialectical, hermeneutic, prognostic, comparative-legal, formal-logical, method of modeling, decomposition, complex analysis, intersectoral method of legal research, logical methods that were used as tools to achieve this goal. Results: Applying the principle of the rule of law, the judge must remember it as a global goal of justice - the rule of law in society. The resolution of every dispute and any legal conflict must be aimed at adhering to this principle. Scientific novelty: From a practical point of view, the rule of law determines the place of the judiciary in the system of public power, which should attest not only to the real separation of powers but also to the judiciary's ability to limit the discretion of the legislature and the executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally - an element of the concept of the rule of law) brings together the concept of the rule of law and the idea of the rule of law in modern conditions. The principle of the rule of law in the modern state is studied. Emphasis is placed on the scope of the rule of law, which includes: legality, which provides for a transparent, accountable and democratic process for the implementation of legal provisions; legal certainty; prohibition of arbitrariness; access to justice; respect for human rights; prohibition of discrimination; equality before the law. Conceptually, the rule of law is to limit the arbitrariness of public authority over society and the individual. Different ways of establishing the system of the rule of law (the court through the application of human rights directly forms the system of the constitution - the English tradition; it is created by the people through the exercise of constituent power - the European continental tradition) are not fundamental. From a practical point of view, the rule of law determines the place of the courts in the system of public power, which must attest not only to the real separation of powers but also to the judiciary's ability to limit the discretion of the legislature and executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally an element of the rule of law) brings together the concepts of the rule of law and the rule of law. The article is devoted to a comprehensive study of the theoretical foundations of judicial law enforcement in Ukraine as a special process of practical achievement of the rule of law in the daily activities of courts, carried out after the constitutional reform of justice in 2016-2017. The acute theoretical and applied need to find ways and means to ensure the unity of law enforcement after this reform, which allowed to form a new scientific approach to solving problems of judicial law enforcement. The problem is solved with the help of intersectoral methodology and integration in law, given the expansion of the functions of the judiciary, in particular, in terms of increasing the law-making role of courts (the theory of "soft" separation of state power). The article proves that the current state of transit legislation in Ukraine leads to the fact that the courts of first instance (sometimes - the appellate court as courts of first instance) take on challenges - to consider the case, guided by the rule of law, taking into account not only the balance of public and private interests, but often the existence of gaps in laws or applying poor quality legislation. The result of judicial enforcement in such cases is the completion of a rule of law, which in fact can be considered a judicial rule and become the basis for the emergence of a new law, the maintenance of which during the review of the court decision gives it a precedent, and thus lower courts promote judicial supremacy.

Моделирование инвестиционных альянсов: тренды, институты, роли

The article, based on the results of a study of current Russian economic, corporate management and judicial law enforcement practice, highlights various configurations of investment alliances regulated by the terms of corporate agreements that are in demand in large and moderately large businesses. The author draws the reader’s attention to the reference targets implemented in the operation of the corresponding models of such agreements of investors in the shares of joint-stock companies and shares in the authorized capital of limited liability companies, as well as on the management and legal tools for achieving these goals. The problem of modeling investment alliances in relation to the solution of long-, medium- and short-term goals and objectives of subjects of entrepreneurial practice requires the use of interdisciplinary analysis – research at the intersection of economics, management, management and law. The purpose of the article is to formulate the problem of modeling investment alliances, describe traditional models of investment alliances and reveal the institutions of modeling investment alliances that contribute to solving this problem. Among others, the authors analyze structures that effectively support the joint business practice of majority and minority shareholders, significant minority shareholders who consolidate corporate control with their help, activate the possibilities of corporate agreements concluded under Russian law for the implementation of mergers and acquisitions projects, as well as anti-raider protection of the target company. The author characterizes the traditional models of investment alliances: “Oath of Allegiance”, “Parity Formula”, “Presale Preparation”, “Speculative Agreement”, “Alliance of Minority Shareholders”, “Anti-Raider Coalition”. The author reveals the institutions of modeling an investment alliance: special rights of a participant, disproportionate powers, special rules of non-public companies, disproportionate contributions, and a corporate agreement. The author also emphasizes the diversity of the roles of participants in investment alliances, taken into account when solving the problem of modeling investment alliances.

THE LEGAL PRINCIPLE OF THE NEWEST SYSTEM OF UKRAINIAN LAW IN THE ACTIVITY OF THE JUDICIARY IS LEGALIZED

Objective: to study the rule of law as a principle in the judiciary in such aspects as to clarify the origins of the idea of the rule of law, the relationship between the concepts of the rule of law and the judiciary, analysis of relevant doctrine in Ukraine. Methods: dialectical, hermeneutic, prognostic, comparative-legal, formal-logical, method of modeling, decomposition, complex analysis, intersectoral method of legal research, logical methods that were used as tools to achieve this goal. Results: applying the principle of the rule of law, the judge must remember it as a global goal of justice - the rule of law in society. The resolution of every dispute and any legal conflict must be aimed at adhering to this principle. Discussion: from a practical point of view, the rule of law determines the place of the judiciary in the system of public power, which should attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and the executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally - an element of the concept of the rule of law) brings together the concept of the rule of law and the idea of the rule of law in modern conditions. The principle of the rule of law in the modern state is studied. Emphasis is placed on the scope of the rule of law, which includes: legality, which provides for a transparent, accountable and democratic process for the implementation of legal provisions; legal certainty; prohibition of arbitrariness; access to justice; respect for human rights; prohibition of discrimination; equality before the law. Conceptually, the rule of law is to limit the arbitrariness of public authority over society and the individual. Different ways of establishing the system of the rule of law (the court through the application of human rights directly forms the system of the constitution - the English tradition; it is created by the people through the exercise of constituent power - the European continental tradition) are not fundamental. From a practical point of view, the rule of law determines the place of the courts in the system of public power, which must attest not only to the real separation of powers but also to the judiciary’s ability to limit the discretion of the legislature and executive. This is possible only if the court (and justice procedures) are independent of other branches of government. This approach to the relationship between the separation of powers (traditionally an element of the rule of law) brings together the concepts of the rule of law and the rule of law. The article is devoted to a comprehensive study of the theoretical foundations of judicial law enforcement in Ukraine as a special process of practical achievement of the rule of law in the daily activities of courts, carried out after the constitutional reform of justice in 2016-2017. The acute theoretical and applied need to find ways and means to ensure the unity of law enforcement after this reform, which allowed to form a new scientific approach to solving problems of judicial law enforcement. The problem is solved with the help of intersectoral methodology and integration in law, given the expansion of the functions of the judiciary, in particular, in terms of increasing the law-making role of courts (the theory of «soft» separation of state power). The article proves that the current state of transit legislation in Ukraine leads to the fact that the courts of first instance (sometimes - the appellate court as courts of first instance) take on challenges - to consider the case, guided by the rule of law, taking into account not only the balance of public and private interests, but often the existence of gaps in laws or applying poor quality legislation. The result of judicial enforcement in such cases is the completion of a rule of law, which in fact can be considered a judicial rule and become the basis for the emergence of a new law, the maintenance of which during the review of the court decision gives it a precedent, and thus lower courts promote judicial supremacy.

ФОРМУВАННЯ УКРАЇНСЬКОЇ ПРАВОВОЇ ДОКТРИНИ ЩОДО КВАЛІФІКАЦІЇ КРИМІНАЛЬНИХ ПРАВОПОРУШЕНЬ, УЧИНЕНИХ ОРГАНІЗОВАНИМИ ЗЛОЧИННИМИ УГРУПОВАННЯМИ, У КОНТЕКСТІ ЗМІН КРИМІНАЛЬНОГО ЗАКОНОДАВСТВА

The Article 1 of the Constitution of Ukraine regulates: Ukraine is a sovereign and independent, democratic, social, legal state. One of the destabilizing factors in building the rule of law is the commission of criminal offenses by organized criminal groups. Due to the changes in the criminal legislation during the last two years, the criminal law norms have undergone significant changes, which directly or indirectly affect the qualification of criminal offenses committed by organized criminal groups. Given the changes in criminal law, the qualification of criminal offenses committed by organized criminal groups requires uniform systemic approaches, primarily at the level of judicial law enforcement practice. The formation of the Ukrainian legal doctrine on the qualification of criminal offenses committed by organized criminal groups is one of the significant auxiliary guidelines in the formation of such law enforcement practice. To achieve this goal and the defined objectives, the following methods were applied in the study: logical and normative – for the analysis of criminal law on the qualification of criminal offenses committed by organized criminal groups; system analysis – when considering judicial law enforcement practice (first of all, the Supreme Court and the Supreme Court of Ukraine) of the qualification of criminal offenses committed by organized criminal groups. The legislation strengthens criminal liability for criminal offenses by organized criminal groups, in particular, as evidenced by the amendments to the Criminal Code under the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Liability for Crimes Committed by the Criminal Community" dated by the 4th of June 2020. Before the formation of new approaches to the doctrine of criminal law and law enforcement judicial practice on the qualification of criminal offenses (crimes), a specific part of which is provided by h.ch. 1-5 art. 255 of the Criminal Code, the indirect reference is the provision of the resolution of the Plenum of the Supreme Court of Ukraine of December 23, 2005 №12 "On the practice of consideration by courts of criminal cases on crimes committed by stable criminal groups." Keywords: criminal offenses, criminal community, criminal organization, organized group, creation of a criminal community, leadership of a criminal community, organized criminal groups.

О некоторых идейных источниках теории максимизации богатства Ричарда Познера: Адам Смит и Иеремия Бентам

Objective: to identify some aspects of the historical genesis of the ideas of wealth maximization theory by Richard AllenPosner - one of the main representatives of the Chicago school of economic analysis of law.Methods: post-classical approach to the cognition of social phenomena, which allows analyzing them in their historical development and functioning as the complex of objective and subjective factors; portrait method; comparative legal and formal logical analysis.Results: the wealth maximization theory by R. Posner is one of the most well-known ethical and legal theories in the English- speaking world. It has many followers, and it is often applied as the basis of functioning by acting Western politicians and representatives of political parties. There are also opponents who stand in different positions. The article provides arguments to confirm that R. Posner’s theory is based on the ideas of A. Smith and J. Bentham. In particular, it is A. Smith’s idea that the engine of human development is the desire to improve human living conditions, which is the desire to increase private and public wealth. Also important are the ideas of the “invisible hand of the market” and of self-interest, which is inextricably linked with empathy. From the creative heritage of J. Bentham, Posner singled out the idea of pleasure as a criterion for justifying actions, although he criticized it. Posner replaced pleasure with utility, aimed at maximizing wealth. Posner also recognizes that Bentham’s idea, which has become one of the key ones in the economic analysis of law, is that punishment is a way to impose costs for criminal activity. The authors conclude that the ideas of these thinkers are the basis of the wealth maximization theory by R. Posner, which, in turn, is an authoritative normative legal theory within the Chicago school of economic analysis of law.Scientific novelty: for the first time in the Russian science, this article examines the general theoretical foundations of the welfare maximization theory created by the most famous American lawyer, thinker and economist R. Posner and reveals its ideological origins. Understanding of these origins makes it possible both to criticize this theory and to study the possibilities of using its ideas in the Russian perspective.Practical significance: the ideas that served as the basis for Posner’s wealth maximization theory can be used both for further criticism of this theory and for the development of the Russian legal science and philosophy of law. These ideas can also be used in political practice, law-making, and judicial law-enforcement.

RESPONSIBILITY OF THE LICENSOR FOR THE QUALITY OF GOODS TO THIRD PARTIES

The article by S. V. Zykov, a researcher At the Institute of philosophy and law of the SB RAS, examines the problem of licensor's responsibility for the quality of goods produced by the licensee. This provision appeared with the introduction of part four of the Civil code of the Russian Federation and caused a mostly negative reaction in the legal literature. Considering the judicial law enforcement practice, the author concludes that a significant part of the concerns that were expressed after the appearance of this legal norm in domestic law was not justified.

Ответственность нотариуса за причинение вреда

This article addresses the issues of liability of a notary for harm in the performance of official activities. Particular attention is paid to the obligation of a notary to verify the scope of legal capacity when performing notarial acts. The judicial law enforcement practice on the civil liability of notaries was investigated, in particular, when the legal capacity of a citizen who turned to a notary was not verified properly.

APPLICATION OF CONSTITUTIONAL PRINCIPLES IN JUDICIAL ENFORCEMENT

The subject. Constitutional principles as phenomenon that attracts increasing attention of researchers in the development of post-soviet national legal systems. The purpose of the paper. The purpose of this study is to reveal the relationship between constitutional principles and law enforcement. The methodology of the study. The author of the study used general scientific methods of cognition: analysis, synthesis, abstraction, as well as applied practical methods such as statistical and case-method. The research is also based on the regulatory legal acts and judicial practice, as well as on the opinions of representatives of legal science in the ana-lyzing sphere. The main results and scope of their application. There are several reasons for scientific attention to constitutional principles. On the one hand this is connected with the increas-ing interest in natural law, forms of its manifestation, in the crisis conditions of the de-velopment of modern States and societies. On the other hand, on the territory of the post-Soviet states, the sphere of law enforcement is at the stage of its reform, as are the na-tional legal systems themselves. In this regard, the search for effective methods of im-proving legal institutions and law enforcement relations becomes urgent. This method, according to the author, could be natural law in such a form of its manifestation as con-stitutional and legal principle. Constitutional principles as fundamental principles (ideas, requirements) fixed in the norms of law or followed from them. They reflect the essence of law and determine the content and procedure for the implementation of legal regulations in socially significant situations, determine the law enforcement sphere of the state. Judicial law enforcement is a complex process. As a result of their functioning a legal prescription as a model of behavior through the activities of a special subject - the court is embodied in real social relations. Conclusions. The constitutional principles at various levels, from ideas to specific regula-tions, relating to state and society in general and specific to their individual institutions, serve as the basis of law enforcement. They determine judicial activities, the subjects of law enforcement, procedure, jurisdiction, establish its boundaries and a measure of its quality.

Federal statehood of Russia and Germany in the mirror of constitutional and judicial law enforcement: the importance of German experience for Russian practice

Federal statehood of Russia and Germany in the mirror of constitutional and judicial law enforcement: the importance of German experience for Russian practice

Incomplete Law - A Conceptual and Analytical Framework and its Application to the Evolution of Financial Market Regulation

This paper develops a conceptual framework for the analysis of legal institutions. It argues that law is inherently incomplete and that the incompleteness of law has a profound impact on the design of lawmaking and law enforcement institutions. When law is incomplete, residual lawmaking powers must be allocated; and enforcement agents have to be vested with law enforcement powers. The optimal allocation of lawmaking and law enforcement powers under incomplete law is analyzed with a focus on the legislature, regulators and courts as possible lawmakers, and courts as well as regulators as possible law enforcers. The timing and process of lawmaking and law enforcement differs across these agents. Legislatures are ex ante, courts are ex post lawmakers, regulators have combine ex ante and ex post lawmaking functions. Courts are reactive law enforcers, while regulators are proactive law enforcers in that - unlike courts - they can initiate enforcement procedures. We argue that the optimal allocation of residual lawmaking and law enforcement powers is determined by the degree and nature of incompleteness of law, the ability to standardize actions that may result in harm, and the magnitude of harm and externalities expected from such actions. Under highly incomplete law, regulators are superior to courts when actions can be standardized and, if allowed to proceed, may create substantial externalities. Otherwise courts are optimal holders of lawmaking and law enforcement powers. We apply this analytical framework to the development of financial market regulation in England since the mid 19th century, with comparative reference to developments in the United States and Germany. The comparative evidence suggests that financial market regulators with both residual lawmaking and proactive law enforcement powers emerged in all three jurisdictions in response to ineffective judicial law enforcement of highly incomplete law.

LEGAL FORECASTING IN THE FIELD OF CIVIL PROCEEDINGS IN THE CONTEXT OF DEVELOPMENT OF INFORMATION TECHNOLOGIES

The article is devoted to the study of possibilities of application of methods and means of legal forecasting for law-making, judicial law-enforcement and rendering legal assistance in the context of the development of information technology in civil proceedings. Forecasting technologies are being examined on the example of the analysis of one of draft laws in the context of civil proceedings. The article deals with the issues of formation of working groups of futurologists, data collection during examination of the forecast background using digital technologies, creation of forecast legal models in assessing legal risks with the use of computer software applications. The author emphasizes the importance of participation of academic community in legal forecasting, as well as the need to develop the foundations of legal regulation of the use of prognostic technologies and the need for the State control in this area.