Judicial Law Research Articles

Государственный суверенитет в координатах судебной власти: суверенна ли судебная власть?

The article presents the author's concept of judicial sovereignty, which is based on an analysis of the constitutional characteristics of the sovereign principles of the judiciary, which include: the increased, special nature of the legitimacy of the judiciary; the unity of the judicial system of the Russian Federation, ensuring the unity of judicial sovereignty; the independence of the court; the jurisdictional universalism of the court, ensured by the exercise of judicial power in various constitutional forms of legal proceedings, by combining universalization with differentiation; judicial and jurisdictional discretion, including the possibilities of judicial law-making and the formation of judicial law. In this regard, the concept of judicial sovereignty is being implemented both in law enforcement, judicial and jurisdictional activities, and in judicial rulemaking. At the same time, the role of the judiciary in the development of the modern doctrine of state sovereignty is analyzed, bearing in mind, first of all, the decisions of the Constitutional Court of the Russian Federation as the conceptual basis of national judicial jurisprudence, which is of particular relevance in modern conditions of the global crisis of international relations and the need to strengthen the sovereignty of Russia in all forms of its manifestation.

Constitutional control of the judicial law in criminal proceedings: realities and prospects

Constitutional control of the judicial law in criminal proceedings: realities and prospects

Evolution of views on judicial policy in the context of judicial law

Evolution of views on judicial policy in the context of judicial law

Corporate Legal Dogmatics on the Revocation of Share Donation Due to Breach of the Duty of Loyalty

Abstract The article is devoted to the research of the institution of revocation of share donation and, mainly based on the interrelationship of German civil and corporate law, proposes a dogmatics intended for use in the development of a uniform Georgian judicial law on the issue. Failure to use corporate legal specifi cs and legal dogmatics in the cancellation of the share donation agreement, which is the direction taken in the latest Georgian judicial practice, may lead to outcomes detrimental to corporate governance and business development. The management of any entrepreneurial entity and, especially, capital-type corporation essentially depends on how the partner will enjoy the rights derived from his share and what influence he will be able to have on making corporate decisions. Of course, it is the general legal duty of the company partner, under both private and corporate law, to exercise the rights arising from the membership in good faith, for the benefi t of the common public interest, to reject any individual mercantile intentions and ensure the company’s management process with a high standard of duty of loyalty. In violation of this standard, the partner may be held individually liable in case of damage to the enterprise, which is considered a kind of neutralizing deterrent against the violation of the duty of corporate loyalty. Establishing such a uniform judicial practice of cancelling the share donation agreement, without considering the specifics of corporate law, threatens to severely constrain the realization and implementation of the rights arising from the share itself, which is not allowed in corporate law.

Theoretical and practical aspects of the influence of judicial law-making on judicial reform

The article summarizes, expands and substantiates scientific knowledge about the theoretical and practical aspects of the influence of judicial law-making on judicial reform. The legal nature of judicial law-making is characterized, taking into account modern contextual and conceptual approaches to understanding the law-making potential of the court. Judicial law-making is an important, integral and special type of law-making. The legal nature of judicial law-making is deep and multifaceted, in particular, it is a way of achieving the goal of justice and ensuring the rule of law; an important guarantee of the protection of human rights; a necessary element of implementing the rule of law in the mechanism of ensuring human rights and freedoms; a means of overcoming legislative gaps and exceptional legal problems in the course of law enforcement; a tool for supplementing the law; «insurance» agent of the legislator, etc. In the democratic countries of the world, judicial law-making has proven itself as an effective tool entrusted to the courts within the limits of their judicial activity, and they use this tool with an appropriate level of responsibility. The peculiarities and directions of influence of international and national judicial law-making on reforming the judicial system and legal reform are analyzed. The theoretical and practical value of the influence of judicial law-making on judicial and legal reforms lies in the fact that it is a conceptual basis for the qualitative transformation of the domestic judiciary, judiciary, justice and the legal system, in particular the field of judicial law. The state and trends of the introduction of judicial law-making into the national legal system of Ukraine based on the results of the last judicial reform are revealed. With each stage of judicial reform in Ukraine, the need for official recognition of judicial law-making becomes more relevant. The judicial reform of 2016 did not positively resolve this issue. Currently, the need to introduce judicial law-making is mostly recognized at the doctrinal level, but is rejected by the legislator.

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.

“Des peines en général” in the French “Code pénal” of 1791

The publication is a continuation of the author’s studies on the history of judicial law of revolutionary France, with the author seeking to shed light on the sometimes underestimated first French criminal codification, adopted by the National Assembly in 1791. The researcher’s interests focus on the regulations determining the system of penalties adopted in the codification. Although the author’s dominant research method is exegesis of the normative text in the formal-dogmatic convention, the instruments of comparative legal studies have been used as well. Confronting the provisions of the code with the doctrinal assumptions and demands of the Enlightenment, the author seeks to show the complexity of multifaceted issues and specificity of the realities of revolutionary legislators, which necessitated compromises that are controversial for some researchers. Regardless of the critical remarks that have often been made about the French legislators, it is impossible to underestimate the crucial importance of the Code for the development of a European legal culture, which the author has tried to demonstrate by emphasising the pioneering nature of the law from the point of view of the development of new legal institutions.

The maintenance of the penalty of forced labor in Congolese judicial law in front of the constitution of February 18/2006, arbitrary or impunity?

Au regard des dispositions de l’article 16 alinéas 4 et 5 de la Constitution du 18 février 2006 telle que modifiée à ce jour et de l’arrêt rendu par la Cour Suprême de Justice de la République Démocratique du Congo en date du 19 août 2011 sous R. CONST 166, il se dégage que la peine des travaux forcé a été extirpée de l’arsenal juridique congolais et ne peut cependant plus être applicable par les Cours et Tribunaux car aucune juridiction n’a reçu du législateur la compétence de pouvoir la prononcer. Cependant, il s’observe en pratique des Cours et Tribunaux que les personnes poursuivies et condamnées à la peine des travaux forcé du chef de l’infraction de détournement des deniers publics, purgent cette peine en prison, alors que l’article 6 bis alinéa 3 du code pénal congolais livre 1er, interdit l’assimilation et la confusion de la peine des travaux forcés à celle de servitude pénale. Cette pratique constitue à la fois l’impunité et l’arbitraire qu’il faut à tout prix bannir par la promulgation de la loi portant suppression de la peine des travaux forcés.

Relationship ushul Fiqh, Qowa’id Fiqih dan Maqashid Al- Syariah With Islamic Economy

Current Islamic Economy One of the main challenges is the low level of sharia financial literacy among the public. This causes the public to still have low interest in using sharia financial products and services. Another challenge is the lack of research and development in the field of Islamic economics and the lack of application of Islamic economics in business practices in Muslim countries. Therefore, efforts are needed to increase sharia financial literacy among the public, increase research and development in the field of Islamic economics, and apply Islamic economics in business practices in Muslim countries. Researchers decided to use qualitative research methods. Researchers use qualitative research methods because the opinions of each expert and practitioner are definitely different, a science can be very solution and relevant if applied at one time, but it could be useless if applied at a different time. Ushul fiqh in Islamic economics can be applied not to economics but to an economic system. Because the system is a regulation that requires a basic set of foundations that are qath'i based on revelation. The role of Ushul Fiqh as a methodology for developing economic systems in order to answer all contemporary economic problems. Meanwhile, in its application, Jazuli classifies qawa'id into six different areas, namely mahdhah (special) worship, ahwal as-Syahshiyyah (personal and family matters), mu'amalah maaliyah (economic transactions), jinayah (criminality), siyasah ( politics), and fiqh qadhaya (procedural and judicial law). Among the most basic qawa'id in this matter is "All forms of muamalah are basically permissible (allowed) unless there is an argument that forbids it." In the economic context, maqashid shari'ah has a dual role, namely: as a control tool as well as a social engineering tool to realize human benefit. It provides a rational philosophical basis for economic activity. Without maqashid shari'ah, understanding and practice of Islamic economics will be narrow, rigid, static and slow. Islamic economics will lose the spirit and substance of its sharia. But on the contrary, with maqashid syari'ah, Islamic economics develops elastically, dynamically, in accordance with the character of Islamic syari'ah which is universal and relevant for all time and space).

Transformation of the content of human rights under the influence of globalisation

Human rights have transcended the realm of individual-state relations, becoming a constructive element of state legal systems and promoting the integration of social and legal relations, leading to the emergence of previously unknown human rights. Therefore, it is necessary to develop a legal understanding of them, considering contemporary realities. The purpose of the study is to describe and characterise the latest human rights within the framework of the general theory of law and the state. The methodological basis of the study is civilisation and socio-philosophical approaches, within which analysis, synthesis, and modelling methods were used. The essence of distinguishing generations of human rights boils down to the gradual realisation and resolution of issues of human legal status in a changing reality. Social relations, complicated by historical development, will give rise to new problems in human legal status. Attention is drawn to the close connection of human rights with the sphere of health protection, which arose as a result of scientific and technological achievements in biology and medicine, discussing rights to artificial insemination, euthanasia, organ transplantation, cloning, and gender change. The impact on fundamental human rights through the digitisation of law is analysed. The idea of the universality of human rights harmoniously interacts with the universality of digital technologies, so in the era of digitisation, the content of human rights and the related values do not change, and human rights themselves can become a unifying target perspective in determining attitudes towards new technologies. The main trends in the development of human rights in the conditions of globalisation are modelled, including the universalisation and unification of human rights, the complication of mechanisms for ensuring human rights at the international level, and the increasing importance of judicial law in protecting human rights at the supranational level. The paper focuses on the dependence of globalisation processes on transforming national legal systems in war conditions. The practical value of the study lies in its potential to incorporate the trends in human rights development within the context of globalisation into specific topics covered in courses on state and legal theory, philosophy of law, and the creation of relevant educational and methodological resources

IMPLEMENTATION OF CHANGES IN THE MINIMUM AGE FOR MARRIAGE FOR MEN AND WOMEN IN VIEW OF ISLAMIC LAW IN INDONESIA

Objective: Indonesia is a constitutional state with a Muslim majority that uses Islamic law as a source of law which is then codified in law (taqnin al-ahkam). This was born marriage law, judicial law, religion, zakat law, and waqf law. After the enactment of Law no. 16 of 2019 concerning Marriage there are changes regarding the minimum age limit for marriage. Methods: This type of research is empirical juridical in nature which in other words is a type of sociological legal research and can also be called field research, which examines the legal provisions that apply and what actually happens in society Results: The results of this study concluded that there were many marriage dispensation applications to the Religious Courts. This is influenced by several factors, namely legal substance factors, educational factors and economic factors. Conclusion: This research examines application of the marriage age limit must be updated in accordance with current Islamic law.

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.

Disharmonization of the Authority of Judicial Institutions Regarding the Implementation of Executions on Mortgage Objects of Sharia Economic

This research aims to analyze the disharmonization of authority between Religious Courts and District Courts in executing the rights of mortgage objects of Sharia economics originating from conflicts of norm in Law Number 50 of 2009 on Religious Court and Law Number 21 of 2008 on Sharia Banking. This research is a type of normative legal research, using statutory approach and case approach. Juridically, the Religious Court is a judicial body that has absolute authority to examine, adjudicate, and settle all stages of Sharia economic dispute legal processes through litigation (ordinary court) to the implementation of execution. However, in terms of implementation, there is still disharmonization of authority between judicial institutions caused by conflicts of norm in religious judicial laws and Sharia banking laws. It is crucial to clarify the position of the Religious Court as the sole judicial body with absolute competence in implementing the execution of Sharia economic mortgage objects through revision and harmonization of Article 55 of Sharia banking laws as norms regulating dispute resolution by litigation. Thus, juridically, the existence of the Religious Court will be more explicit in implementing the execution of Sharia economic mortgage objects, which serve as legal guidance for creditors and debtors in filing execution appeals in court.

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.

Official veterinary experts in civil legal disputes

Veterinary opinions on animals sold include pre-purchase vetting and investigation to find latent defects. Preparation of a veterinary expert opinion can be ordered by a dissatisfied animal buyer or a court holding a civil trial, if doubts arise. In some jurisdictions, however, official and mandatory opinions of veterinary experts in animal warranty cases are stipulated by the law. The legal norms of selected European states are examined for which methods of legal analysis and interpretation are used: they are linguistic, teleological, functional, systemic, legal historical, and comparative. A specific type of veterinary expert opinion is distinguished, which integrates elements of administrative or judicial (court procedural) law (public law) and civil law (private law). The official and mandatory character of the expertise incorporation procedure is established. The roles of the expert veterinarian and the responsibilities of the animal buyer are demonstrated. The introduction of analogous legal standards in other jurisdictions is recommended.

Judicial Reform in Serbia in Light of “the Venetian Concept” of the Rule of Law

This paper analyses the influence of the standards of the Venice Commission in the area of the rule of law in the course of Serbian judicial reforms. The author first “sketches” the constitutional “path” of the idea of judicial independence and the rule of law in Serbia. He derives an “extract” from the “jurisprudence” of the Venice Commission in the area of the rule of law, which refers to the standards of an independent judiciary summarised in a document called the Rule of Law Checklist. The normative framework, which has been set by the constitutional amendments from 2022 and judicial laws from 2023, is a positive step on the way to building a national rule of law that will be compatible with international standards. In the coming period, Serbia will face numerous external and internal challenges. The Commission points to the relatively weak material position of judges, the lack of interest of young lawyers in applying for judicial positions, the large gap between retiring judges and young people. The Commission particularly emphasises the importance of building a legal culture. The author considers that segment essential for the success of the process that has begun. The author underlines that the international standards of the rule of law must not have absolute supremacy vis-à-vis the real needs of their adaptation to the national political, legal and social environment of the country in question. It is necessary to strive for a dynamic balance that will, in the long term, provide the conditions for the rule of law of national content that confirms the generally accepted civilisational values and achievements of the international legal community. Every step in that process must be carefully thought out and undertaken

The Special Tribunal in Martinique: from the history of French colonial justice in the early 19th century

The focus of this article is on the special tribunal, a special judicial body established in the French colony of Martinique in 1803. It was created to carry out criminal repression against black slaves accused of poisoning, arson, stealing boats and pirogues to escape. The main purpose of the study is to determine the legal basis for the organization of a special tribunal in Martinique and to identify its features in relation to the special tribunals that existed in the metropolis from 1801 and 1802. The question of the correlation of these tribunals in the colony and in the metropolis seems to be little studied in historiography. The subject of research in the work is the evolution of the special tribunal during the period of French rule on the island – from the establishment of the court to the loss of control over Martinique by the French in 1809. To work on the topic, documentary materials from the National Archives of overseas France, published legislative acts and acts of ministers of the Napoleonic era, acts of the island administration from the "Code of Martinique" were involved. The study used the method of concrete historical analysis, comparative legal analysis of legal documents and structural and functional analysis of judicial bodies. As a result of the study, it can be concluded that the competence of the Martinique Special Tribunal has changed towards its expansion over three stages in 1803-1809. From an organ of repression exclusively for slaves, it gradually turned into an extraordinary court for slaves and for free people of color, and then for any vagabonds without a place of residence and recognition. Dangerous crimes of a state nature began to belong to his jurisdiction. The comparison of the tribunal with the special tribunals established in the metropolis in 1801 and 1802 does not confirm the full borrowing of judicial law from the metropolis in the organization of the colonial court and testifies in favor of the originality of colonial justice. However, similar features in the composition of these bodies and in the order of judicial procedure allow us to speak about general trends in the development of judicial systems throughout the French Empire, in the metropolis and in the colonies, expressed in the creation of bodies of emergency justice, alternative to courts of general jurisdiction.

Macro Approach in Economic Crime Response Technology in the Age of Global Transformation

The economic interest that dominates the pattern of modern human life causes the most prominent global transformation in terms of economic activity. Related to this, a macro approach is needed in overcoming technology-based economic crimes. The urgency of this research is expected to provide input for the development of legal science, specifically in Judicial Law and Economic Criminal Law related to cybercrime and make improvements in the provisions of laws and regulations relating to telematics crimes, especially in terms of electronic transactions. This study uses normative legal research. This study uses secondary data and primary data as supporting data. The results of this study show that overcoming technological economic crimes requires a multi-aspect concept because the nature of technological economic crimes is very complex. Its complexity continues to grow following the flow of global transformation in the economy. Therefore, the concept of handling it must be done with a multi-aspect concept.
 Keywords: economic, crimes, technology, global

INSSENIROVKA QILISH ORQALI SODIR ETILGAN JINOYATLARNI ANIQLASH VA FOSH QILISHNING AYRIM USULLARI TAVSIFI

"In the context of the modernization and reform of our country, the reforms that protect rights and are carried out in the field of judicial law are primarily aimed at comprehensive protection of human rights, freedoms, and legal interests. These are gradual and gradual reforms, giving the state the role of the main reformer, ensuring the rule of law, and implementing a strong social policy. Also, today there are problems related to the relevance of preliminary inquiry and investigation processes. However, from the point of view of identifying problematic situations or cases in our legislation by scientists and practitioners, the results studied or analyzed are still not fully resolved. As a result of detecting, preventing, or exposing certain types of crimes, the consequences of the wrong application of our law are happening. In this regard, we have analyzed the description of some methods of detection and exposure of crimes committed through staging. At the end of the analysis, we have made suggestions regarding the situations that should be paid attention to in the practice of staging investigations. This article is devoted to these issues. "

The Systemic and the Particular in European Law—Judicial Cooperation in Criminal Matters – ERRATUM

The Systemic and the Particular in European Law—Judicial Cooperation in Criminal Matters – ERRATUM