Judicial Regulation Research Articles

Balance of Rights and Legal Interests of the Parties to the Employment Relationship

The article analyzes the categories of “balance of interests” and “balance of rights and legal interests” of the parties of labor legal relations. The analysis of points of view, in which the concept of “balance of interests” is used, criticizes the approach in which the category of “balance of interests” is disclosed on the basis of legal positivism and scientifically debatable concept of integrative legal understanding. From the position of scientifically grounded concept of integrative legal understanding the author»s conclusions and proposals are formulated. Including the conclusion that “the balance of rights and legal interests of the parties to labor relations” is a category realized through legal (law-making) and individual (contractual and judicial) regulation of employment legal relations.

Nature Features of Explanations of the Russian Supreme Court Plenum on Issues of Judicial Practice

In this article it is settled that explanations of the Russian Supreme Court Plenum on judicial practice, passed in forms of its judgments, meet the criteria of individual judicial regulations, relating to a variety of non-law. In these acts on the basis of studies and analysis of judicial practice it is fixed the results of interpretation court's activity during administration of justice and passing judgments, which are taken into account subsequently by courts when cases with factual circumstances without variation are considered.

История формирования судебного нормоконтроля в военно-судебной системе России

Based on the analysis of historical sources, scientific publications and judicial practice, the article examines the little-studied issues of the emergence and formation of legal regulation in the military-judicial system of Russia of this type of judicial activity as judicial regulation, which has an important role in the judicial protection of the rights of military personnel against the background of the formation of the modern state structure of the country.

Ambiguity of boundaries of tax optimization: the problem of the Russian tax system

The subject of this research is the boundaries of tax optimization of the Russian tax system. The goal is to outline the reasons and method of for removing ambiguity of such boundaries. The consequences of ambiguity of boundaries of tax optimization not only limit the development of businesses, but also entail the disproportions of social development, contradictions between the government on the one hand and the middle class and disadvantaged population groups that participate in the financial and economic relations on the other hand, and thus, undermine confidence in the government. The reasons for such negative phenomenon are as follows: the absence of the unity of opinions on the concept of tax optimization; unregulated division of rights to establish the boundaries of tax optimization by the judicial, legislative and executive branches; vagueness of the terms and definitions characterizing these boundaries; no set rules for establishing the consequences of exceeding these criteria. It is revealed that the new doctrine in the form of a judicial-legal symbiosis of determining the boundaries of tax optimization did not resolve all issues associated with ambiguity of these boundaries. The author’s special contribution lies in substantiation of the shift in conceptual approaches towards the term “tax optimization”, which should exclude the use of this term circumventing the law. The article describes the advantages of legislative regulation of the criteria of tax optimization over judicial regulation. The author specifies the terms and definitions necessary for marking out boundaries of tax optimization on the legislative level. The novelty of this research consists in substantiation using the factor analysis of judicial tax disputes of legislative consolidation of the concept of tax reconstruction with regards to corporate income tax in accordance with the methodology recommended by the tax service, with extension of its application in case of cooperation of the evader with the auditor for preventing tax offences

Peculiarities of Individual Judicial Regulation of Relations with Participation of Peasant (Farm) farms

The legal regulation of relations with the participation of peasant (farmer) farms is complicated by the absence of a single legal act that would consistently cover all the rules governing the creation and activities of known types of peasant farms, which include: a sole peasant farm represented by an individual entrepreneur, a contractual association of citizens without the formation of a legal entity and peasant farms as the legal form of a legal entity. Individual judicial regulation, possessing a sign of feedback for legal regulation, can help increase its effectiveness. The purpose is to study the characteristics of individual judicial regulation of relations with the participation of peasant (farmer) enterprises on the example of individual judicial acts, as well as suggesting ways to resolve the problems identified. To achieve the stated goal, the following tasks were set: – designation of peasant farms confirmed by court decisions on disputes involving them; – the identification and study of the features of individual judicial regulation of relations with the participation of these types of peasant farms; – consideration of the possibility of application by courts of an analogy of the law in relation to peasant farms; – suggesting ways to address the identified problems of individual judicial regulation of relations with the participation of peasant farms. The methodological basis of the study consists in the use of general scientific (dialectics, analysis and synthesis) and private scientific research methods (formal legal, document analysis method). Brief conclusions of the study. 1. The marked differentiation of types of peasant farming makes it possible to specify the features of legal and individual regulation of each of them, and also makes it possible to exclude the accidental application of improper legislation in relations with the participation of peasant (farm) farms. 2. To determine the characteristics of individual types of farms, it is necessary to accurately determine the basis for the occurrence of each of them. 3. The application of the analogy of the law to peasant farms as partnerships or societies should be excluded, and the full identification of farms with these legal entities should not be allowed. 4. A special law that would determine the particular legal status of the peasant economy as a legal entity in accordance with clause 5 of article 86.1 of the Civil Code has not yet been adopted.

ЮРИДИЧНА ДОКТРИНА ЯК ДЖЕРЕЛО КРИМІНАЛЬНОГО ПРОЦЕСУАЛЬНОГО ПРАВА УКРАЇНИ: ЗАГАЛЬНЕ ГНОСЕОЛОГІЧНЕ (ЕПІСТЕМІОЛОГІЧНЕ) ДОСЛІДЖЕННЯ (ЧАСТИНА ДРУГА)

In this scientific article, the continuation of the gnoseological (epistemological) research of legal doctrine as a source of criminal proceedings is carried out. In this scientific work, theoretical perception of scientific concepts of Ukrainian and foreign legal scholars in the field of legal doctrine as a source of law (in general), taking into account the legal significance of legal doctrine as a source of criminal procedural law (in particular) is carried out. In this scientific work, the attention is paid to the research of the fundamental and systemic relationship of legal doctrine with other sources of criminal proceedings (in particular, with the Decision of the Constitutional Court of Ukraine on a particular constitutional and judicial case). The text of this scientific article studies, inter alia, the fundamental and systemic relationship of Legal Doctrine with Separate Opinion of the Judge of the Constitutional Court of Ukraine (in a particular constitutional and judicial case), as sources of criminal procedural law of Ukraine. At the same time, the peculiarities of constitutional and judicial legal regulation in the field of criminal proceedings and in combination with the study of theoretical and legal and philosophical and legal bases (foundations) of the abovementioned two sources of criminal process in Ukraine are taken into account. The scientific knowledge of the theoretical and legal and philosophical and legal relationship of the Legal Doctrine with the Separate Opinion of the Judge of the Constitutional Court of Ukraine (as sources of criminal procedural law of Ukraine) is carried out with consideration of the scientific and theoretical features, specified in the text of Separate Opinion of the Judge of the Constitutional Court of Ukraine of legal (in particular, philosophical and legal, doctrinal and legal, general and legal, criminal and procedural) definitions. In the text of this scientific article, the attention is paid to the humanistic legal doctrine on which the acts of international law in the field of human rights (in particular, human rights in the field of criminal procedure) are based. In this scientific article, the attention is paid to legal doctrine as a manifestation of a person's ability to learn (including knowledge of the sphere of criminal process).

Принципы гражданского процессуального законодательства России во второй половине XIX века

Based on the positivist understanding of law principles, we analyze the legislation of the Russian Empire, which normatively enshrines the principles of civil procedural law. We substantiate the position that in the pre-revolutionary doctrine there were certain ideas about the principles of civil procedural legislation, however, a special analysis of normative acts with the aim of identifying them was not carried out. We highlight the features of pre-revolutionary scientists work – specialists in the field of civil procedural law, namely: theorization, reasoning about the principles of civil procedure “in general” as some universal ideas in isolation from the real analysis of the Charter of civil procedure, “inscribing” of Russian civil procedural law in the European context and as a consequence of this, the use of a wide range of foreign literature. Based on the analysis of the Charter of Civil Procedure of 1864 and the Nominative Decree given to the Senate “On the Establishment of Judicial Regulations and on the Judicial Charters” dated November 20, 1864, we substantiate and conclude that seven principles of civil procedural law were enshrined in the legislation of the Russian Empire: 1) principle of independence of judges; 2) principle of equality of all before the court; 3) adversarial principle; 4) principle of humanism; 5) principle of justice; 6) principle of publicity; 7) principle of speedy proceedings (principle of considering a case on the merits in no more than two instances).

Public administration in the sphere of judicial practice problem regulation: bringing to justice for driving while intoxicated

Considering that current problems of bringing persons to legal responsibility for driving means of transportation while intoxicated are vital today, I investigated judicial practice for such cases. Also, I analyzed the legal consequences of the existing problem that occurred in connection with a legislator's failure to maintain the proper procedure for adopting changes to the current legislation in the field of road safety. The legal gaps and legal inaccuracies that exist in the current Ukrainian legislation regarding traffic rules were identified.I analyzed different approaches of the Ukrainian judicial system in the classification of offenses committed by persons who drive means of transportation or vessels under the influence of alcohol, drugs or other intoxicants that reduce attention and speed of reaction. As a result of my investigation, I identified that there is no unified judicial system in this field in Ukraine at the moment. One of the most difficult stages of legislation is the formation of an independent, competent and fair court as a standard of respect for human and civil rights and freedoms. However, judicial error does not always result from the activities of judges. Sometimes the influence of external factors, such as the ambiguity of the legislation in its wording or the obsolescence of the rule of law, is one of the influential factors that cannot be corrected or influenced by the judiciary. Based on the analysis of scientific literature, legal acts and my studies of judicial practice, I suggest improving the current system of responsibility of legal entities in the field of road safety in Ukraine by making relevant changes to the legislation.

Healthcare Policies and Judicial Regulations for Disposal of Unclaimed Dead Bodies: A Current Review

India leads the world in the number of registered medical institutions and produces the largest number of medical doctors in the world. Not with standing this, India struggles the concerns of cadaver shortage, patient unavailability (in hospitals), lack of medical equipment’s/ instruments, shortage of medical personnel and medicines which is largely due to the malfunctioning of Indian Regulatory bodies and flawed Educational, Healthcare and Judiciary policies. Few authors have written on the prevailing deficiencies in the Indian policies especially the ‘Anatomy Acts’ but failed to correlate them with the ‘Indian Judiciary Regulations’ and provide radical solutions to ensure an uninterrupted supply of cadavers to medical institutions for academic and research purpose. The objective of our article is to review the policies and acts enacted by the Indian Educational, Healthcare and Judiciary policies pertaining to the disposal of unclaimed dead bodies both, prior to COVID-19 and during COVID -19 pandemic period.

Geoenergy permits in Finnish regional administration – Contradictory practices and inadequate judicial regulation

The installation of geoenergy systems on designated groundwater areas in Finland is regulated by the Water Act and the Environmental Protection Act through the water permit procedure. We analysed permit documents to trace the temporal development of application numbers and permit policies, and the scientific and legal principles guiding the permit procedure. We discovered that, since geoenergy issues were not considered when enacting the legislation, it provides little support for geoenergy permit decisions. Consequently, the role of soft law documents is emphasised. Further technical and scientific instructions are also needed to support geologically sound reasoning in permit decisions. On the other hand, deficiencies in many permit applications highlight the need for more professional preparation of applications and system designs.

View on the Restoration of Procedural Terms from the Perspective of the Theory of Legal Interests

The General nature of legal regulation inherent in law is inextricably linked to the problem of implementing the discretionary powers of the law enforcement officer, including the court, which in modern Russian legal doctrine is proposed to be solved from the position of two approaches: judicial discretion and individual regulation, both of which are characterized by the unwillingness to offer a mechanism for developing the only. The use of certain provisions of the theory of legal interests can contribute to the solution of this problem. Disclosure abstract methods to achieve balance of interests of participants of the procedure relations the article contributes to the study of the mechanism for enforcement decisions in the process of implementing the court's discretion in the field of restoration of procedural deadlines. The research was carried out on the basis of using the method of system analysis, logical methods, special legal method of cognition of the phenomena of legal validity based on certain provisions of the theory of legal interests in the civil process (types of legal interests according to the mechanism of implementation; methods for determining the balance of interests; law enforcement basis for resolving conflicts of legal interests). It is proved that in the process of implementing the discretionary power, the only correct law enforcement decision should be developed. This decision expresses the balance of interests of participants in procedural relations, achieved on the basis of principles of law in combination with moral and ethical categories. The effectiveness of the described approach is illustrated by examples from law enforcement practice.

Legal Aspects of Human Genome Patenting: The Case of Legislative and Judicial Regulation in Australia

The paper considers the Australian experience of human genome patenting legal regulation, and studies the Australian court practice on this issue. The aim of the study is to examine the approaches of the Australian law enforcement agencies to one of the most important aspects of the genome research legal regulation, i.e. human genome patenting, and to compare them (to conduct a comparative analysis) with the approaches of the judicial authorities of other states (USA). The authors note that, based on the Australian court practice, patenting of human DNA is possible, which makes the development of research in the human genome quite attractive for commercial companies, since it protects the possibility of such companies to obtain economic benefits from the use of scientific developments. The authors point out that the issue of patenting of an isolated genetic sequence has been the subject of litigation in other jurisdictions (in particular, the United States) involving the same defendant (Myriad Genetics). It is emphasized that, despite the similarity of legal systems, the identity of the subject of claims, the judicial authorities of the United States and Australia have formulated different approaches to determining the possibility of patenting human DNA.

Historical stages of the transformation of the judicial system and legal procedures in the Russian Empire: case of judicial reform of 1864

The relevance of the study consists in the fact that the changes in the 1860-70s in the Empire determine the beginning of positive developments within the judicial system. Consequently, the objective of the article was to study the historical stages of the transformations in the judicial system and procedure in the Russian Empire in 1864. The main research method was deductive that allowed to study the nature and the key historical stages of the transformations in the judicial system and legal procedure in the Russian Empire in 1864. The solution to the problem posed was based on studying the legal foundations of the significance (place and function) of the judicial reform of 1864 within the general historical development of Russia. It is concluded that the key judicial principles include democratic foundations such as publicity in the oral process, frankness, and the right to a lawyer. Furthermore, it highlights that the authors of the Judicial Regulations of 1864 studied not only English and French law, but also examined the codes of procedure of Geneva and the Kingdom of Sardinia. Thus, the Russian jury trial became a new step in the development of European legal culture.

Courts and the mediation of public resource (AB) use during elections in Malawi

The (ab)use of public resources during elections in Malawi is a recurrent phenomenon. The judicial mediation of the (ab)use of public resources has, however, not been extensive. In instances where courts have intervened, their pronouncements have done little to stem the practice, especially by incumbents. This paper interrogates the judicial regulation of the (ab)use of public resources during elections in Malawi. Among other things, it establishes that state media remains one of the most highly contested resources during elections. The paper demonstrates that the judicial understanding of public resources is narrow and may shield politicians from censure. In addition, political actors in Malawi seem interested in questioning the (ab)use of public resources only in the period immediately preceding polling without concern about any (ab)use during the rest of the electoral cycle.

Evasion of Individual Income Tax Obligation and Its Regulation

The occurrence of individual income tax liability depends on whether there are taxable facts in line with the statutory tax elements. If the taxpayer tries to avoid the individual income tax obligation, it will constitute tax avoidance behaviors, which should be regulated by law. When China’s individual income tax law was revised in 2018, it added an anti-avoidance clause, which belongs to the scope of legislative regulation measures. The structure of this clause is composed of behavior patterns and legal consequences vertically. Horizontally, it is divided into transfer pricing rules, controlled foreign company rules and general anti-avoidance rules. It uses typical uncertain legal concepts, such as legitimate reasons, obviously low, reasonable needs, reasonable purposes, and improper interests, to regulate the transfer pricing implemented by individuals, controlled foreign companies and other arrangements without reasonable commercial purposes to obtain improper tax benefits. The corresponding legal consequence is that tax authorities have the right to make tax adjustment according to reasonable methods. As special anti-avoidance rules, the former two are realized through reasonable adjustment of related party transaction pricing and forced simulated distribution of profits of controlled foreign companies, which should be coordinated with the application of special tax adjustment rules of enterprise income tax; while the application of general anti-avoidance rules needs to clarify “no reasonable business purpose” and “improper tax benefits” by means of legal renewal. The connotation of uncertain legal concepts needs to focus on how to refine the behavior types of general anti-avoidance rules. The administrative regulation measures before the amendment of the law should retain the measures to exercise resident tax jurisdiction by identifying the taxpayer’s identity, rather than the practice of imposing tax administrative penalties and regulating individual tax avoidance behaviors based on the principle of substantial taxation. On the basis of the coexistence of administrative and legislative regulation measures, tax authorities can better solve the problem of tax avoidance of individual income tax. The application of anti-avoidance provisions should be promoted by the amendment of current normative documents by the State Taxation Administration. Whether it is appropriate for tax authorities to exercise the right of tax adjustment should be judged by the court. Whether the right of tax adjustment can be directly exercised by the court mainly depends on whether the implementation of anti-avoidance provisions is more appropriate through the judicial mechanism. The answer to this question depends on whether the implementation mechanism of anti-avoidance in China considers increasing judicial regulation measures.

The Role of Judicial Practice in the Legal Regulation of Insurance Contractual Relations

he article is devoted to determining the concept, role and significance of judicial practice in the legal regulation of insurance contractual relations, the establishment of its characteristic features and its correlation with other sources of legal regulation of the relevant relations. It has been established that the legal regulation of insurance contractual relations represents a state-dominant influence on such relations by a combination of legal means by which specific entities (the insurer and the insured) influence the legal relationship in the insurance industry by establishing specific contractual conditions in order to consolidate relations between them in order to streamline them in accordance with the needs of society as a whole and specific entities in particular. Legal regulation of insurance contractual relations is carried out using various legal forms that differ in the level and manner of their consolidation. In the system of sources of legal regulation of direct contractual relations on insurance, the following are distinguished: sources of normative (general) regulation (normative legal act, legal custom, judicial precedent, standard contract, general principles of law) and sources of individual regulation (specific insurance contract, the contents of which constitute the totality conditions determined at the discretion of the parties and agreed by them). In addition, on the basis of state-power nature and belonging to a certain type of social regulation, the sources of legal regulation of contractual insurance relations are: a) substantial, formal sources of law (institutional sources), which coincides with the form of law as a way of expressing the rules of conduct that are contained in the rules of law (multilevel regulatory legal acts in the field of insurance); b) the totality of social regulators (extra-legal sources), which are characterized by direct or indirect recognition by their state of regulators of insurance relations, which are constituted by the customs of business turnover, moral standards; c) judicial practice, which is characterized by a combination of institutional, non-legal sources and contractual self-regulation. It is noted that judicial practice is the result of judicial regulation, affects the practice of law enforcement, the actual formation of insurance relations in society, changes in insurance legislation and occupies an important place in social regulation. Key words: judicial practice, legal regulation, insurance contractual relations, sources of legal regulation, non-legal sources, social regulators.

Actual aspects of a judicial regulation of explantation of donor’s materials for transplantation

Objective. Investigation of actual aspects concerning judicial regulation of explantation of donor’s anatomical materials for transplantation, determination of
 main problematic issues of such activity and delineation of ways to improve the legislative-judicial guaranties of the person’s life and the health guarding in explantation procedure of the donor’s anatomical materials.
 Materials and metods. Modern national and international normative base, which establishes main principle of explantation of the donor’s anatomical materials, was investigated. The methods of searching, analysis, systematization and summarizing of information were studied.
 Results. Necessity in sophisticated judicial base for transplantology is connected, first of all, with peculiar relations between donor and recipient, specifically constituting equal rights for the life for them. Actual judicial pattern of the consent or rejection delivery for procedure of explantation of the donor’s anatomical materials in the dead persons are frequently considered the disadvantages of a legislative-judicial regulation of transplantology. In such situation, the authors mentioned, that it is necessary to preserve an actual judicial pattern of the informed consent obtaining, to improve this procedure,as well as a mechanism of fixation and the state control. Also it is necessary to proceed with further harmonization of national legislation with international principles, concerning judicial regulation of explantation of donor’s materials, taking into account the national peculiarities and realization of the state policy in development of transplantology. The investigation results were confirmed by the author’s statistical observation.
 Conclusion. Basing on the definite priority of human rights, a necessity for guaranteeing to them the right to live and to be physicslly untouchable, independent from judicial pattern of the consent obtaining for the anatomical materials explantation, the state must guarantee the usable mechanism of effective control for obtaining and fixation of a consent of a potential donor.

Analysis from the Perspective of the Separation of Powers Between Judiciary and Politics in Turkey

Bu çalışmanın amacı Türkiye’de siyaset yargı ilişkisini, bu ilişki çerçevesinde yargı bağımsızlığı ve tarafsızlığı kavramlarının nasıl yapılandığını kuvvetler ayrılığı perspektifinden analiz etmektedir. Günümüz Türkiye’sinde yargı ile siyaset arasındaki ayrımın giderek daha fazla silikleştiğine dair iddialar artmaktadır. Bu iddialar yargı siyaset ilişkinin olması gereken noktadan saptığı noktasında yoğunlaşmakta ve kuvvetler ayrılığı ilkesinin hukuksal değerinin ulusal ve uluslararası yargı bağımsızlığı düzenlemeleri açısından incelenmesini gerektirmektedir. Çalışma, yöntem olarak nitel ve betimleyici bir araştırmadır. Çalışma verisi ikincil kaynaklar-literatür taraması (Anayasa Mahkemesi Kararları, Resmî Gazete arşivleri, ilgili yasal mevzuat, ilgili literatür, gazete arşivleri, konuyla ilgili araştırmalarda yer alan istatistiksel veriler) yoluyla elde edilmiş ve analitik bir değerlendirmeye tabi tutulmuştur.

Challenges Related to Rituals and Law Facing Saudi Students in the UK

Saudi students studying abroad encounter some challenges as regards the climate and culture of the UK. These challenges may not only be observed in the language and academic curriculum. Hence, this study aims to test the rooted religious values and jurisdiction practices among Saudi Muslims concerning their experiences, needs and other challenges while studying in the UK. This study included a sample of 100 Saudi students enrolled in a different academic year in the UK institutes. Findings reveal that the majority of the Middle Eastern students experienced difficulties in offering prayers, displaying Islamic rituals such as funerals, and paying Zakat to people. These students also experienced problems in learning about juristic and judicial regulations and identifying the significance of civil and human rights, intellectual/religious tolerance, and women’s rights. Most of the students experienced issues with their wives due to the social environment. Understanding this experience is significant to help ease the students' challenges and make their experience in the UK successful.

Digital Consent and Data Protection Law – Europe and Asia-Pacific Experience

A serious dilemma for regulators of the Internet is to ensure that data providers secure the informed consent of digital consumers before accessing and transmitting their personal data. This dilemma is complicated by the fact that, while most data consumers value their privacy over their personal data, they readily consent to the use of that data. An economic dilemma for Internet regulators is to recognize the economic costs to data providers of informing data consumers about the nature and consequences of consenting to the use of their personal data, while preventing data users from eroding the privacy of those consumers. In issue, too, is a self-management model in which consent to the use of personal data is managed by data subjects and data users, even if the latter dictate the terms of that usage, contrasted against an external regulatory model in which such consent is subject to legislative and judicial regulation. A further issue relates to the external regulation that oversee how data is managed. This includes a primary framework with which data users must comply. This article will address these issues in the dynamic and evolving sector of data protection across the global economy. It will argue for greater legal consistency and harmonization in the law governing consent to the use of personal data, in defining the nature of that consent, and in devising a regulatory framework that takes account of the cognitive capacities and behaviour of data consumers.