Legal Assessment Research Articles

Standards of Disciplinary Conduct for the Corporate Directors: Perspective of the United States of America

Administration of corporate activity is the daily preoccupation of corporate directors. Delegation of decision-making to the director, who is an independent player within the company, can clearly create the risk of conflicting his interests with the interests of the shareholders. This potential conflict of interests is a consequence of the division of ownership of the company and the control powers of the company's commercial activity. The delegation of decision-making authority to the directors of the company may cause the risk of the temptation of the director to the assets of the company. In addition, directors may also be tempted by opportunities for profit that arise during the exercise of their function, instead of using these opportunities for the company. For this reason, it is necessary to foresee clear disciplinary parameters, to avoid and eliminate the conflict of interest, as well as the prohibition of competition. In the present paper, through a legal assessment, special attention has been paid to the main categories of standards: elimination of conflict of interest and prohibition of competition. The main aim of this paper is to analyze the US doctrine, legal provisions, which regulate the two standards of disciplinary conduct for the corporate directors, as well as the court practice in this regard. Also, an important objective of this paper is that it may serve as an important basis for further comparative studies in this field with other jurisdictions. Such analysis is based on the qualitative method, which contains also the research, analytical, descriptive, interpretive methods. The result of this paper will stimulate debate in the academic level and contribute to further improvements of our company legislation, as well to the legal doctrine in Albania that lacks such.

Features of Delimitation of Crimes Provided for in Articles 285 of the Criminal Code and 286 of the Criminal Code when they are Committed in the Public Procurement

The specifics of the criminal law regulation of liability for abuse of official powers and their excess committed in the field of public procurement are determined by the specifics of the regulation of the activities of officials participating in this sphere within the framework of their “procurement” and related functions. The correct qualification of acts committed in the field of public procurement requires reference to numerous regulations of the legislation on the contract system and on the procurement of goods, works, services by certain types of legal entities. The need to refer to the legislation on the contract system and on the procurement of goods, works, services by certain types of legal entities in the qualification of abuse of official powers and their excess arises when determining the content of the signs of the subject and almost all the signs of the objective side of the deed. Industry legislation in the context under consideration is characterized by high dynamism, “layering”, a significant number of contradictions and shortcomings. These circumstances determine errors and lack of uniformity in judicial practice when distinguishing crimes provided for in Articles 285 of the Criminal Code and 286 of the Criminal Code when they are committed in the field of public procurement. Homogeneous, and in some cases identical criminal actions of customer officials – violations in the pricing of goods, works, services; actions restricting competition (inaction); violations of the established procedure for concluding (changing, terminating) state and municipal contracts; violations in the acceptance of delivered goods (work performed, services rendered), etc. – may receive different criminal legal assessment. The purpose of the article is to develop recommendations and criteria for distinguishing crimes provided for in Articles 285 of the Criminal Code of the Russian Federation and 286 of the Criminal Code of the Russian Federation, taking into account the peculiarities of criminal legal assessment when committing these acts in the field of public procurement. To achieve this goal, general scientific (analysis, synthesis, induction, deduction) and private scientific (formal legal) methods of cognition were used. In the study, taking into account the recommendations of the Supreme Court of the Russian Federation, theoretical positions in the science of criminal law, the peculiarities of the legal regulation of public procurement, recommendations for distinguishing the crimes under consideration, taking into account the specifics of the situation of their commission, are formulated.

The Impact of Epistemic Communities on the Development of Future International Legal Regulation of Lunar Activities

Every human culture has reflected the Moon’s influence in its cosmology, spirituality, science, creative and social life. For these reasons, the exploration and use of the Moon should be done thoughtfully and carefully, and possible resource extraction should not harm the Earth's only satellite and its environment as a whole. The adoption by some States of national legislation affecting the commercial exploitation of space resources, as well as the resumption of lunar programs by several leading spacefaring nations at a time, prompt the need for legal regulation in this area. However, to develop a detailed international legal regime for lunar exploration, the efforts of the States parties to the UN COPUOS alone are not sufficient since in practice other actors in international relations, including the so-called epistemic communities representing various types of non-governmental organizations, are also active participants in space activities. Such communities offer their own vision of the international legal regulation of relations arising in the framework of the exploration and use of the Moon basing on the norms of international space law and involving active participation of non-governmental legal entities, considering the interests of present and future generations, as well as of emerging space nations. The study presents a comprehensive analysis of the influence of epistemic communities on the development of the future international legal regime for lunar exploration. The authors consistently review the activities of non-governmental organizations within the UN COPUOS since its formation. Special attention is paid to the contribution of such communities to the progressive development of international space law and its codification, including the legal nature of the documents developed by such communities. The study concludes with a comprehensive international legal assessment of the activities of the epistemic communities.

Catarina Woyames Dreher, A Legal Assessment of the Efficacy of Consultation with Indigenous Peoples: The Case of Brazil

Catarina Woyames Dreher, A Legal Assessment of the Efficacy of Consultation with Indigenous Peoples: The Case of Brazil

The Contributions of Marketing, Operational, Legal, and Financial Aspects to the Successful Implementation of the Donation Program Facility

The establishment of a centralized donation program facility in every city and municipality is in congruence with the United Nation’s Sustainability Strategy and anchored on the Philippine National Development Plan 2023-2028 for deep economic and social transformation to reinvigorate job creation and accelerate poverty reduction which is embedded on “Ambisyon Natin by 2040 that describes the kind of life that people want to live, and how the country will be by 2040. A study was conducted using the theoretical framework of a project’s feasibility to assess the viability of the program. The marketing aspect focused on how the information about the program shall be disseminated to the target beneficiaries. The operational aspect of the operating process of the donation program focuses on the activities and tasks to be used to coordinate, collect, and distribute food and non-food items to the final consumers/beneficiaries. The operational process projection shall cover the planning, organizing, directing, coordinating, and regulating the many phases of the donation program facility. A legal feasibility assessment was used and regarded as a critical workflow to ensure that the program achieves its underlying goals in a timely, efficient, and seamless manner, hence reducing the risk of unpleasant surprises during implementation. Financial elements of business refer to the management, acquisition, and utilization of financial resources to achieve the program’s strategic objectives. Budgeting, forecasting, analyzing, planning, managing, and negotiating are all part of the process, as is risk management. The centralized donation program will cover the receipts and disbursement of all donated items plus the proceeds of the livelihood products the program will offer, thus a need for its feasibility is needed to be used as one of the bases of its establishment. Keywords: donation program, feasibility study of a donation program, operating process of a donation program, program strategic objectives

Sleep disorders and criminal behavior.

Behaviors that would otherwise be considered criminal acts, but occur in the context of a sleep disorder, pose challenges to the traditional application of legal principles of criminal responsibility. Determining the degree to which consciousness is present during such behaviors becomes a necessary step in assigning criminal culpability. Historically, legal defense theories of unconsciousness, automatism, and insanity have been raised to negate culpability for parasomnia related behaviors. Accordingly, proper assessment of sleep disorders in the context of criminal charges becomes critical in assisting the functions of the justice system. This article reviews principles related to the legal tradition, expert assessment, and elements of expert testimony related to criminal behaviors and sleep disorders.

The Concept of Common Property at the Present Stage

Common property as a legal category of Russian law plays an important role in property relations with the participation of many persons — owners (civil law community). The paper examines the provisions of the Russian civil legislation concerning common property, in particular the owners of immovable property, adopted in order to implement the Concept of Development of Civil Legislation in 2009. In addition, dwells on the issues of common property of members of an investment partnership, peasant (farmer) unions and other corporate associations. The paper analyzes the concept of «common property» at the present stage and defines its characteristic features. Special attention is paid to the issue of the mixed nature of ownership of common property. The author explains the rights of owners in relation to common property, including property, managerial and information rights. The author substantiates a truncated possibility of implementing the classical triad of the rights of the owner (possession, use and disposal) in relation to the property in question. The paper examines the procedure for exercising the powers of the owner of common property, disposing of objects from the common property (including their transfer and alienation to third parties), as well as the consequences of violating the rights and legitimate interests of persons arising from transactions with common property. In conclusion, the author’s concept of common property is defined by referring it to the civil law community — the collective owner. The paper proposes approaches to the legal assessment of the content of the owner’s competence, possible areas of application of the category under consideration and the functional suitability of common property.

Will the SQE's Legal Research Assessment Produce Solicitors Who Can Carry Out Legal Research Effectively?

AbstractWith the Solicitors Qualifying Examination (SQE) having been introduced in 2021 the training of solicitors has changed. But what impact will its legal research assessment have on their ability to do this sort of work? Here Greg Bennett, who works at BPP in London – where in addition to being a law librarian he is also studying the LPC – gives an overview of the situation and outlines his own concerns.

Modern determinants of genocide

The article provides facts and historical reproductions of the revival of genocide in the context of the geopolitical situation, taking into account the legal assessment.

Рецензия на книгу В.В. Игнатенко и А.А. Петрова «Научно-правовая оценка конституционности законов»

The review analyzes the book “Scientific and legal assessment of the constitutionality of laws” by V.V. Ignatenko and A.A. Petrov, which accumulates the experience of the authors’ participation in the preparation of scientific legal opinions on the issues of assessing the constitutionality of legal regulations of individual federal laws and laws of the constituent entities of the Russian Federation.

Organizational and legal assessment of the impact of relocation on the investment and economic policy of enterprises

The object of the study is the process of relocation of Ukrainian enterprises both within the country and abroad. The problem of the study, first of all, is that the relocation of business for domestic business entities was not very relevant recently, and the practical experience of moving capacities is practically absent. An analysis of the difficulties encountered by entrepreneurs when deciding to relocate the company was carried out. In addition, the study examines the enterprise relocation program proposed by the government and its shortcomings that make it difficult to use. It was determined that among the main problems of the state program of relocation are the insufficient information base and awareness of the existing program, the lack of established communication between the participants of the process. It was emphasized that entrepreneurs need additional financing for the time of adaptation and stabilization of their business in new regions, expansion of infrastructure in the form of creation of business incubators, business hubs and business accelerators. However, there are almost no innovative relocation companies in the studied regions. It is necessary to stimulate innovative activity with long-term sectoral development programs and fiscal incentives, since the relocation of enterprises in modern conditions is an effective tool for the restoration of entrepreneurial activity in new regions of the country, which in turn ensures the relative stability of the economy, provides jobs, guarantees the production of national products and services, as well as the possibility of their implementation on the international market. Potential solutions have been analyzed and determined, which can contribute to revitalizing the relocation of businesses and making the process more successful. However, this requires state support and additional funding, which will help bring the enterprise relocation program to a new level, which in turn will help enterprises to continue their activities and have a positive impact on the state's economy. This study can become a reference point for Ukrainian business in the near future. Also, the research can be useful for the authorities, the public and the university environment.

Memorial Law: National and International Aspects

Introduction. This article conducts an interdisciplinary study of memory policy, which includes terminological explication and legal analysis of concepts similar in meaning, assessment of the relevance and need to legalize terms related to memory policy, determination of the effectiveness of official memory policy, prediction of its political and social consequences in the long term and exploring the normative limits of national memorial legislation. The purpose of the study is the conceptualization of memorial law.Materials and methods. The main research method is participant observation of the processes of implementation in Russian society and abroad of the concepts of national, historical and social memory, as well as the construction of norms and regulations for establishing legal relations in the field of conservation of military memorial heritage objects. Methods of express diagnostics of problem situations, legal assessment of incidents, sociological and expert surveys (including questionnaires and testing), and modeling were used.Research results. As a result of the study, the need to develop a special federal law on the protection of the military memorial heritage of the Russian Federation, as well as the development of an international (universal) Charter (Convention) on the protection of military memorial heritage sites formed as a result of the Second World War, was substantiated. Discussion and conclusion. It has been established that there is no single position in the scientific community regarding the need for memorial legislation. This largely depends on the political and ideological preferences of a particular author. At the same time, it was concluded that in legal science the conceptual foundations for the formation of memorial law as a special legal complex for the preservation, transmission and protection of historical memory and memorial (war memorial) heritage have been poorly studied. In addition, both at the level of legal doctrine and according to law enforcement practice, the issue of the status and legal means of preserving military memorial heritage has been practically not studied. In this connection, the authors propose the development of a Union Nation Charter for the Protection of Military Memorial Heritage for the purpose of holistic and comprehensive legal regulation of the area under study.

Function follows Form or Form follows Function – The Legal Nature of CBDC

Abstract 211Central Bank Digital Currency (CBDC) is often described as the future of money, pictured to function as a new, widely adopted means of payment. Whilst economic and public law implications of CBDC issuance have received close scrutiny, private law issues – especially the question of CBDC’s legal nature – have received little attention. This is surprising, given that the function of money as a means of payment is primarily shaped by the private law framework. So far, this framework is tailored to money’s specific forms of appearance, either as (tangible) property or as (intangible) claims against financial intermediaries. Early research has sought to simply classify CBDC within this dichotomy, according to its design respectively being token or account based. Assuming a German private law point of view, this paper will put such classification to the test as regards the intended “European CBDC”, the digital euro. It will show that the focus on token versus account is misguided and ultimately unhelpful, as the digital euro would in neither form fit within the existing legal framework. Drawing on the discussions surrounding the legal nature of cryptocurrencies and cryptoassets, as well as the recent experience with the dematerialisation of securities, it will be argued that the envisioned dematerialisation of cash offers the opportunity to re-think the legal nature of such new money, based not on its form, but on its function as a circulating means of payment. Putting function before form allows technology-neutral answers to related issues, such as the legal assessment of CBDC transfer, ultimately equipping private law for the future of money.

Exhaustion of rights and parallel import: legal assessment from the point of view of security

In the context of external challenges and threats, integration and digitalization of the economy, attention is growing to the issues of exhaustion of rights or parallel imports. The article considers the issues of exhaustion of exclusive rights to intellectual property objects from the point of view of ensuring security.The object of the study is the model of exhaustion of exclusive intellectual property rights in Russia, its features from the point of view of ensuring various types and levels of security. Based on the proposed periodization of the legal regulation of exhaustion of rights in Russia in the context of Eurasian economic integration, the author examines the formed model of exhaustion of intellectual property rights, highlights its features, identifies options for its scientific justification from the standpoint of ensuring national security in the context of internal and external threats.Methods of systemic, historical and institutional analysis, formal logical and comparative legal methods were used. The author proposes a periodization of the legal regulation of exhaustion of rights in Russia in the context of Eurasian economic integration, a classification of participants in legal relations directly or indirectly involved in the mechanisms of creation, use and turnover of intellectual property rights. Attention is drawn to three aspects of the mechanism of exhaustion of rights that has developed and is developing in Russia: the conceptual apparatus of the mechanism, the complexity and multilevel nature of the security provided by it and the mobile nature of the mechanism of exhaustion of rights. Conclusion are drawn that in modern Russia the established model of exhaustion of rights, combining elements of regional and international principles of exhaustion, can be considered as a way to counteract sanctions pressure, measures to protect domestic copyright holders, producers and consumers, measures to support the domestic economy, conditions for the formation and strengthening of technological sovereignty. It is proved that the established correlation of various models of exhaustion of rights in Russia reflects the dominance of aspects of national security protection, the strengthening of economic components of intellectual property rights protection.

Ошибки потерпевшего в сфере уголовного права

In addition to the criminal, who is mistaken about the circumstances of his or her socially dangerous behavior and its legal assessment by the state, there is another subject that is present in many criminal torts – the victim. His role in the etiology of crime has only recently been noticed and discussed in the context of victimization. However, the problems related to the victim’s erroneous behavior are poorly studied by domestic and foreign specialists. The unreasonable behavior of the victim is largely based on his misconceptions, so it seems quite acceptable to use the term “victim mistake” in the sphere of criminal law. At the same time, the victim’s delu-sions pose a threat not only to himself, but also influence the crime committed by the criminal. The author states that such behavior of the victim can act as a determining factor in the formation of the antisocial orienta-tion of the personality of the harm-doer. The victim’s mistake is a person’s incorrect assessment of the possible danger of his action for himself. The presence of such should affect the limits of responsibility of the guilty per-son, and therefore the article suggests directions of its consideration in the imposition of punishment.

An Inchoate Crime in Criminal Law: Prospects of a Constructionist Approach

The paper considers the possibilities of solving some problems of crime qualification using the juridicalconstructionist approach. The focus of the legal analysis is on the structural features of a specific normative prescription of the criminal law with the peculiarities of the connections between its elements. First, the author shows how the application of different legal structures to similar facts of the case changes the legal assessment of what has been done from a completed crime through an attempt to commit it and to conclusions about the absence of a criminally punishable act. Second, the author discusses the issue of determining not only the moment of the legal completion of the crime, but also the moment of the legal beginning of the crime to find the boundaries between the preparation for the commission of a crime and the attempt to commit it. The author provides his understanding of the legal structure in criminal law, as well as its content. Using the example of judicial normative interpretation and law enforcement practice, the author proves that legal structures can change, despite the fact that the disposition of an article of a Special part of the Criminal Law may remain unchanged. According to the author, the main work on the description and modification of legal structures is carried out by the Supreme Court of the Russian Federation, including its Plenum. The paper demonstrates positive aspects of the constructionist approach in the legal analysis of an unfinished crime, as well as the difficulties that may be caused by it. For clarity, using the analysis of legal structures, the author elucidates approaches to the qualification of attacks on the life of two or more persons, when one victim was killed, and one or more other victims were not killed due to circumstances independent of the will of the perpetrator. In the process of this analysis, the author demonstrates the distinction between attempted murder of two or more persons and preparations for such a crime, and provides his considerations concerning decisions of the courts of appeal of general jurisdiction.

Предъявление обвинения международным уголовным судом заведомо невиновному как международное посягательство и национальное преступление

The article gives a legal assessment of the fact of illegal charges brought by the International Criminal Court against the President of the Russian Federation and the Commissioner for the Rights of the Child under the President of the Russian Federation. The public danger of this fact as an international encroachment is considered from the perspective of possible consequences caused at the international and national level. The article analyzes the legal basis of criminal responsibility for the commission of acts by the International Criminal Court through the signs of the crime: the object, the objective side, the subject and the subjective side. It is concluded that the judges of the International Criminal Court committed a crime provided for by the criminal legislation of the Russian Federation.

Disputes Arising out of Targeted Training Agreements

The complex and multi-level nature of legal regulation determines the complexity of law enforcement in resolving cases on disputes arising from targeted training agreements. In addition to the industry attribution of the contractual structure, there are a number of interconnected problems therewith, namely determination of the limitation period, jurisdiction of the dispute, legal assessment and application of liability measures (in particular, a fine paid to the educational organization). The author supports the point of view that targeted training agreements are similar with apprenticeship agreements. At the same time, the author points out that the new model of responsibility under the targeted training agreements is, on the one hand, a prerequisite for the differentiation of these contracts, but on the other, demonstrates some features of a public law nature that are unusual for both civil and labor law. These are expressed in establishing responsibility for violation of a contractual obligation to a third party, namely an educational organization. The author also highlights the uncertainty of the legal assessment of the deadline for paying a fine in connection with failure to fulfill an employment obligation and proposes to consider it a prerequisite for the right to claim in the substantive sense.

Qualification of medical (medical) errors

In the article the author investigates the qualification signs of actions (inaction) of doctors (medical staff), the consequence of which is a medical error. Their content and influence at the civil law relations that arise between the doctor and the patient are established. The author emphasizes the development of a correct, well-thought-out and unified position about the legal qualification of erroneous actions of doctors (medical staff). Also in the article it is noted that possible defects of medical care are: lack of a positive result, accident, medical error, where medical error is the basis for bringing to civil liability for doctors (medical workers). It is noted that the characteristic signs of such an error are harm to the patient`s health or his death and the presence of both intentional guilt and negligence and wrongful acts (inaction) of doctors (medical workers).
 The analysis and classification of the causes (factors) of occurrence and types of medical error is carried out. The subjective and objective reasons influencing actions (inaction of doctors, medical workers are defined). It is said that the objective reasons the doctor, the medical worker cannot predict and which exclude their responsibility. It is stated that actions under the influence of objective reasons should be considered as types of accident (or incident). Subjective causes (factors) are errors made by doctors (health professionals) that unreasonably deviate from established medical standards, act carelessly, confidently or allow unreasonable risks in the absence of experience or knowledge.
 The article analyses the classification of medical errors by the causes, in particular: diagnostic errors; medical and tactical errors; technical errors; organizational errors and deontological errors. A legal assessment of a medical error as one of the possible grounds for civil liability is provided. It is substantiated that the responsibility of a doctor, medical staff depends on the presence of guilt in his actions and the qualification of the negative result of medical care.
 The article also emphasizes that doctors (medical workers) are not responsible for a medical error, but for the damage caused to the patient as a result of this error.
 Scientifically substantiated proposals and recommendations for improving the civil legislation of Ukraine in the field of medicine are formulated.

Challenges of Setting up a Legal Translation Quality Assessment System

This article explores the challenges of setting up a coherent legal translation quality assessment system at a national – Romanian, and international – European level. It begins by providing an overview of the importance of accurate legal translation and its impact on legal procedures. It then delves into the current state of legal translation quality assessment in Romania and Europe and suggests the establishment of a legal translation control body, insisting on a number of responsibilities that it may have and challenges that it may face.