Legal Dogmatics Research Articles

THE GOVERNMENT RELATIONS (GR) CLUSTER IN THE SYSTEM OF BUSINESS AND GOVERNMENT RELATIONS IN MODERN RUSSIA: TECHNOLOGICAL AND PROCEDURAL ASPECTS

In this publication, the author attempts to comprehensively disclose leading GR-technologies and describe the procedural aspect of relations between government and business in the Russian political order. Methodology is based on clustering methods, definition analysis, case study, historical retrospective, legal dogma, comparison and comparison. The author identifies the following ways of participation of the business community in GR-relationships: structural pressure (subordination of decisions of public authorities to the actions of economic actors), including the formal incorporation of business representatives into the state apparatus, instrumental pressure (conclusion of one-time formal and informal agreements), including the “exchange” of funds for preferences from interested officials, financial pressure (monopolization of significant assets or property rights in the hands of large business and/or the establishment of extensive majority control over such resources), the activities of legal business associations, unions, associations and self-regulatory organizations, pressure through saturation of the state budget. In conclusion, obstacles are indicated that impede or hinder the full institutionalization of government relations practices as an independent type of management: the lack of legislative permission to conduct professional lobbying activities, the habit of large managers to the so-called manual management, which pushes them to personal involvement in establishing contacts with civil servants, lack of professional GR-managers with an expert and analytical bias.

Drawing the Line Between a Trade Secret and the Skill of an Employee

Chapter 30, Section 5 of the Finnish Criminal Code, prohibits, inter alia, an employee from unlawfully using or disclosing a trade secret to another person during the course of employment. The prohibition remains also in force for two years after the employment has ended. However, the use of one's professional skill is excluded from the prohibition. This article addresses the ambiguous distinction between a skill and a trade secret. Following a legislative change concerning non-compete agreements, the significance of the protection of trade secrets under criminal law has increased and the ambiguity identified in case law has become even more important to resolve. The Supreme Court of Finland has not issued a precedent concerning the matter. The article analyses Court of Appeal rulings with legal dogmatics in order to reduce the ambiguity surrounding the topic. Forty-three rulings from various Courts of Appeal have been reviewed as groundwork for the article. In addition, the aim is to use legal comparison to examine foreign jurisprudence surrounding the topic. The article critically examines a so-called primary rule of interpretation, according to which information exported in stored form is in principle a trade secret. This premise is outdated and problematic and should not be used as the core premise of the evaluation. Instead, the evaluation should focus on an objective analysis of the information itself. The primary starting point in drawing the line between a trade secret and skill should be the employee's experience and ability to independently produce the information claimed to be a trade secret. It would also be reasonable to make the confidentiality criterion for trade secrets stricter by requiring employers to place more emphasis on the confidentiality of the information.

Justicia restaurativa y delincuencia juvenil: un enfoque interdisciplinario

Crime in general is a phenomenon of wide significance and concern within the Ecuadorian territory. Proof of this is that the prison population is mostly made up of young people, which generates even more unrest. In the development of this academic work, recent research has been reviewed, as well as statistical data to evaluate the effectiveness of the scope of restorative justice in prevention and thus the reduction of recidivism rates, thus promoting the rehabilitation of young offenders. The methodology used responds to a qualitative approach, framed in legal dogmatics with a descriptive scope and a correlational design, supported by the exegetical method and bibliographic and documentary analysis. As a result, the proposal to apply restorative justice that provides viable alternatives to criminal trial is presented, aligned with the principle of minimal intervention, as one of the characteristics of Ecuadorian justice related to international standards. By specifying issues inherent to the deprivation of liberty, this work is oriented towards the de-judicialization and deinstitutionalization of sanctions, proposing a balance between the purposes, perspectives, scope and strengths through which juvenile restorative justice can face the other areas of criminal justice.

Analysis of legal custom: an aspect of legal dogmatics

Analysis of legal custom: an aspect of legal dogmatics

Philosophical Analysis of Positivism Article 6 (1) ICCPR in The Construction of Armed Criminal Group Human Rights

This study aims to identify philosophically and juridically related to the Deconstruction of Article 6 (1) ICCPR in the construction of KKB Human Rights and Deconstruction of Human Rights as positive law on the principles of Positivism Philosophy. This research uses normative (doctrinal) methods with a statutory approach (statute approach), and conceptual approach by implementing primary legal principles covering regional to international law and consisting of theories of positivism philosophical traditions, legal dogma, and other relevant literature. The results of this study show that the government should be able to provide firm action against Criminal Acts of Terrorism, especially KKB in Indonesia because there is the highest principle, namely Salus Populi Suprema Lex Esto, and the conception of human rights as positive law that is irrelevant to the founding father of legal positivism, namely the Philosophy of Positivism.

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.

On the Interdisciplinarity of Legal Dogmatics. Reflexive Elements for the Brazilian Legal Science

Resumo O texto reconstrói criticamente os argumentos centrais defendidos por Alexander Stark no seu recente livro sobre “A Interdisciplinaridade da Dogmática Jurídica” - Interdisziplinarität der Rechtsdogmatik -, ainda sem tradução para o português. Antes disto, apresenta-se o contexto do surgimento do livro no âmbito da literatura jurídica de língua alemã. Sugere-se, ademais, a importância dessa discussão também para a ciência do direito brasileira e a sua dogmática jurídica.

Building a Theoretical Framework from Weber’s Theory for Legal Scientific Research

Scientific work in the field of legal science in Indonesia often differs from the criteria for empirical scientific research at the level of modern science. The results of thesis and dissertation-level scientific research at law faculties have so far emphasized technical-juridical analysis for the needs of legal practice rather than academic research that criticizes and creates new scientific theories in the field of law. Dogmatic legal analysis, it seems, takes precedence over academic legal analysis that allows researchers to fulfill the critical scientific need for the renewal of legal dogmatics by the development of Society. The framework section is usually narrated without construction in the form of a 'theoretical framework' or 'analytical model' which often shows confusion in legal research. Legal dogmatic research focuses on evaluating the structure (language) of law and legal practice, i.e. how far the elements of the article as evaluation indicators are used with the resolution of the particular legal event being studied. Scholarly legal research often uses theory in presenting the framework for its theses and dissertations, and more than one theory is even related to the various narratives and descriptions of the proposed research. In addition, legal researchers present major frameworks in 'grand theory', 'middle-range theory', and applied theory' for research typically conducted in the field of pure science (pure social and human sciences).

Militant Rule of Law and Not-so-Bad Law

The article provides intellectual arguments and tools from legal dogmatics that can help to counter the rule of law backlash. It argues that resilience can be boosted by a systemic militant rule of law approach. When it comes to restoring the rule of law, legal theory turns to the Radbruch formula (supra-statutory law). This approach remains contested by lawyers who are convinced – following the tradition of positivist legal theory – that invoking this formula is unacceptable because it violates a fundamental requirement of the rule of law, namely that of legality. Irrespective of the value of this concern, Radbruch’s formula is not applicable to the current demise of the rule of law, as the law resulting from cheating and abuse in illiberal regimes does not result in evil law (though it may facilitate such developments). Instead of evil law, we face not-so-bad law. Legal imperfections exist in every legal system, and militant rule of law necessitates the systemic revision of these shortcomings in order to preempt the abuses of an anti-formalistic populist regime. In illiberal regimes, the self-corrective mechanisms of the rule of law are gradually eliminated, but the name of the game remains the rule of law. It means that judges still have (some) power to counter the backlash using extant interpretive techniques (for a while). This article will begin by introducing the concept of not-so-bad (NSB) law as an imperfection of the rule of law. In Part Two, the validity of NSB laws is discussed by relying on the source theory. It argues that even if validity is a matter of conformity to the source, the source can be understood to contain a legal merit component as determined by the rule of law, and falling short on this legal merit component can constitute a ground for declaring the norm’s invalid. Part Three describes the abuses of the rule of law in illiberal democracies and describes how the NSB law of illiberal regimes does not satisfy the validity requirements of legal positivism. Part Four discusses the opportunities open to judges for resisting or undoing NSB law using existing techniques of legal interpretation and without violating rule of law principles.

Justice Dilemmas in Law: on the Sense of Analysing Biblical Texts in Modern Jurisprudence

This article deals with research problems related to justice and law. This is a perennial topic that has been widely discussed in literature but is somewhat forgotten today. Justice in law has been put aside along with values that are self-evident as a kind of dogma, which is utterly wrong. When we ask what such justice in law means, however, and what it affects, we do not get simple and satisfactory answers. Therefore I try to prove that a broad, multi-faceted approach can prove valuable. To this end, in my view, it is reasonable and valuable to use all available research and sources. Some biblical texts, such as the parable of the owner of a vineyard, which I have chosen for analysis, may prove particularly interesting. The parable reveals a great many interesting issues. They are still relevant today and deal with the problems faced by modern legal systems. I believe the texts can be beneficial for the development of jurisprudence. They also enable the integration of the science of state and law, either internally (e.g., with legal dogmatics, which permits the creation of just law) or externally (with sciences other than law). The claim here is that biblical texts, despite the fact that they do not belong directly with legal science, have qualities that enable their use in modern jurisprudence. The researched excerpt and the only biblical text discussed here will be that of Apostle Matthew.

Law of Contracts in Late Antique Persia

The article is about private law contracts and their social, economic, and religious background in Sasanian Persia (224–651) before the advent of Islam. After a brief introduction to the sources and research method, the paper examines Zoroastrian moral teachings about obligations in general and contractual obligations in particular. To emphasise the religious background, the Avestan hymn to Mithra and the Vendidad are scrutinised which have a classification of contracts and a pyramid of sanctions for their breach. The second part of the article analyses private law contracts, which can be found in the Sasanian Law Book called Madigan I Hazar Dadestan, such as sale, barter, donation, lease, and loan, together with legal guarantees such as surety and pledge. In addition to legal dogmatics, attention is also paid to gaps in the law and the opportunities they provide for parties to achieve unlawful ends with legal means, as well as the prudence of Sasanian lawyers and how they stopped such abuses of the law.

Interaction of the Qualifications and Public Policy in Private International Law

The conflict of qualifications and the public policy clause in private international law can be used to achieve the political and legal objectives of the court's rule of law. The analysis of judicial practice and special literature on it indicates an increasing interest in the issue of interaction of these two tools for the stated purposes. The article aims to illustrate this interaction using specific examples from judicial practice and identify its patterns, in particular, to establish subordination between the conflict of qualifications and the public policy clause. To achieve the result, general scientific and special research methods were used, including the method of comparative law. As a result of the study the author has made a conclusion. The method of functional qualification dictated by legal dogmatics does not give the conflict of laws norm independence from the political and legal will of the legislator. The conflict of laws norm remains an instrument in the hands of the state to achieve political and legal goals, and in this sense its dogmatic interpretation allows for political and legal correction. This correction is expressed in a restrictive interpretation of the concepts of conflict of laws, when it becomes necessary. The protection of the court's rule of law values, traditionally associated with the reservation on public order, is transferred to an earlier stage of qualification of the concepts of the conflict of laws rule. Due to the restrictive qualification, the correction of the result dictated by dogma is carried out both in the choice of applicable law and in determining the scope of the conflict of laws reference. As a result, the queue does not reach the stage of applying the public policy clause, since its goals have already been achieved due to political and legal qualifications.

Эволюция технологий, правовых и моральных норм: последствия распространения молекулярно-генетических тестов на отцовство

Introduction: human use of new technologies leads and will lead to changes in the content of legal and moral norms. Today, despite the possibility of molecular genetic research, there remains legal presumption of paternity of the spouse, which indicates the expressed trust in the woman and the institution of family on the part of the state. Purpose: using interdisciplinary knowledge from the fields of anthropology, cognitive science, reproductive psychology, biology, genetics, to determine the factors and directions of the evolution of law and morality if the subjective right of a man to free genomic research at the birth of a child in a marriage becomes reflected in the law. Methods: inductive and deductive methods, analogy, legal dogmatics, phenomenological method, comparative law method, general scientific method of dialectics, forecasting, modeling. Results: abuse of a spouse’s trust in a marriage is at risk of being discovered, which is due to the increasing use of modern technologies. By postponing the discussion on the introduction into law of a man’s subjective right to free molecular genetic research at the birth of a child, society and the state are showing dubious humanism in relation to the child, his social and biological parents. Disclosure of the deception in the future may be associated with the inability for men who have not produced their genetic offspring to have children, and with psychological trauma for family members between whom attachment has formed. The possible results of the widespread use of molecular genetic testing technology to confirm paternity must be analyzed in conjunction with the consequences of the spread of contraception and artificial insemination. Conclusions: increased family stability may be a consequence of increasing trust in the chosen partner and the formation of the idea that adultery is unacceptable. The long-term consequences of the widespread use of genome research technologies will become visible as generations change and can lead to a complete denial of the need for strict rules of law and morality in this area, since the function of controlling sexual behavior will be delegated by society to machines. However, the significant role of social norms in this area may continue: the use of educational opportunities by society will ultimately prove decisive in the evolution of man, morality, and law.

Aktuelni trendovi u razvoju principa naslednog prava

In a legal system, each branch of law has its fundamental rules, the guiding principles which serve as the cornerstone for developing the entire structure of constituent legal norms for regulating a range of related social relations. Being part of the civil law family, succession law is no exception as it adapts its basic principles to the basic principles of civil law, the requirements of the legal tradition, and the needs of society in a specific period of its development. As evident in the Civil Code of the Republic of France (the part regulating succession relations), the Civil Code of the Russian Federation (the part regulating succession rights), and the Succession Act of the Republic of Serbia, the basic principles of succession law are envisaged in different parts of legal texts. They are difficult to locate and correlate in a legal and logical whole, which ultimately aggravates their application in practice. Relying on the legal dogmatics, legal history, normative law and comparative law methods, the paper examines the basic principles of contemporary French, Russian and Serbian succession law through a prism of theoretic concepts, legal solutions and jurisprudence (judicial practice). They are analyzed in terms of their meaning and reach in regulating succession law relations. Given the fact that Russian, French and Serbian succession law provisions have been amended a number of times, this paper aims to cast more light on the current trends in the development of the basic succession law principles in order to determine a further direction in the development of succession law regulations in these countries.

Comparative analysis of international legal regulation and practice of foreign countries in providing access to information: integration of regulatory and practical approaches

The article presents a comparative analysis of the international legal regulations and practices of foreign countries regarding access to information. Its aim is to explore how normative and practical approaches combine in guaranteeing access rights both internationally and across different nations. Key areas of analysis include regulations, their application in practice, and mechanisms for monitoring the implementation of such norms.This work is of great scientific and practical significance, helping us to gain a greater understanding of differences and similarities in approaches taken towards regulating access to information. This can serve as the basis for developing recommendations to strengthen legislation in this area. Comparative analysis, legal dogmatics, and analysis of law enforcement practice were utilized during this research project.The main findings demonstrate that, despite global standards, implementation of accessing information varies considerably according to national context. As a result, our findings highlight the necessity of considering international experience when developing national regulatory frameworks and practices.This study offers a great value by offering a systematic analysis of international and national regulatory and practical mechanisms in relation to access to information. Furthermore, its practical significance lies in being used by regulators and practitioners across different nations in improving access to information rules and practices.

Powszechna Deklaracja Praw Człowieka w orzecznictwie Trybunału Konstytucyjnego

This paper problematises the role of Universal Declaration of Human Rights with regard to assessing the compliance of a given normative act with the constitutional paradigm of control. It presents the analysis of the legal status of the international legal act in question together with the jurisprudence of Constitutional Tribunal in the scope covered by the discussion. The focus is on Universal Declaration of Human Rights, considered in the context of confirmation, strengthening and extending the constitutional standards. The core thesis posed in the analysis was that Universal Declaration of Human Rights is an essential tool of assessing the constitutional character of the legislation passed in the Republic of Poland. The methodology used in the analysis drew from legal dogmatics and theory of law.

Wartości w prawie administracyjnym – próby porządku metodologicznego

The appeals to values and the renaissance of axiological thought in the various legal dogmas naturally prompt a methodological order. The article is a voice in the debate on attempts to systematize values in administrative law. On the grounds of positive law, one usually reaches only to justify the thetic validity of norms. In administrative law, which concerns human beings, it is especially common to reach for the axiological basis of the validity of the law – hence the number of value classifications is considerable. The meanders of axiological reflection in administrative law are entering a higher level of complexity. The axiology of administrative law is very complex due to the great diversity of administrative law, and any typologies are contractual in nature. The doctrine is generating new catalogues of values. Each of them is threatened by a form of relativism. The author undertakes an analysis of the proposed classifications, pointing out the advantages and disadvantages of the various solutions. The purpose of the article is to present justifications for the separation and classification of values in administrative law and to confirm the relevance of axiological reflection within the framework of the legal dogma indicated. The main methods used in the text are formal-dogmatic and comparative.

РИМСКОЕ ПРАВО И ЮРИСПРУДЕНЦИЯ У ИСТОКОВ ПРАВОВЕДЕНИЯ ЦИФРОВОЙ ЭПОХИ (ПОНЯТИЙНО-ТЕРМИНОЛОГИЧЕСКИЙ АСПЕКТ)

The article considers methodological features of Roman law and jurisprudence within the context of their concepto-terminological foundations. The study argues the naturalized character of Roman legal imago mundi, which became the ontological base of legal dogmatics. Taking from this Roman legal constructs were thought as functio-nominative entities derived from the natural language (terms for the legal events and processes), and not as abstract theoretical structures (concepts). The research proves the way of Roman legal cognition to be organized in the logic of “an object — a nomination — a construct”. Affecting objectively the organization of continental legal thought, this method remains in demand in jurisprudence of digital age. The author shows that basic constructs of legal dogma predetermined the impossibility of representation of many phenomena and processes of modern high-tech world, especially digital property. The study concludes that methodological issues are most significant for the legal science in digital age.

Characteristics of Legal Science as Sui Generis

Philosophy is a process of reasoning in thinking to make a conclusion to gain knowledge, because humans are thinking creatures, every attitude and action must come from knowledge based on the thinking process. Until now, the position of legal science is still debated because law is perspective and normative, the characteristics of legal science are doubtful in social science or humanities because it has its own characteristics, called sui generis. This research aims to examine the characteristics of legal science as sui generis from the perspective of the philosophy of science. The research method uses normative juridical with secondary data analysis that is related with the problem in a descriptive-qualitative with a philosophy of science perspective. The results showed that the parameters of sui generis can be seen from the perspective of normative science, terminology in a broad and narrow sense, the type and scope of knowledge in normative science and empirical science, also layers of legal science in the form of legal dogmatics, legal theory, and legal philosophy law. Legal science need to understand the history of development of law as the key to identifying sui generis characteristics through analysis of legal theory, legal concepts, and legal principles philosophically in certain conceptual viewpoints as fundamental to legal science, apart from that, legal research is also needed.

The search for new methodological approaches in legal research in the context of modern challenges

The subject of this article is theoretical concepts and explanatory models used in legal science to identify the essence of law and legal phenomena, as well as issues of the evolution of methodological knowledge in jurisprudence in modern conditions. Due to the lack of adequate tools in classical jurisprudence for describing and researching the nature of new phenomena of legal reality, as well as in connection with overcoming politically and socially determined methodological limitations, legal science is faced with the need to search and disseminate new methodological approaches. New methodological approaches in the social sciences in general and in jurisprudence in particular do not pretend to establish the absolute truth, their advantage lies in the integration of traditional approaches. When considering the problems of the methodology of modern legal research, the author points out the need to apply new postclassical approaches, including the communicative theory of law. The novelty of the research consists in substantiating the impossibility of the transition of legal science to a qualitatively new level of knowledge of law and legal phenomena, provided that it uses the classical (and to a certain extent outdated) methodological optics. Since legal science develops in the context of the development of scientific knowledge in general and goes through the same stages in its development, at the present stage its development may be associated with the application of integrative concepts of legal understanding. One of the most interesting integrative concepts of legal understanding is the communicative approach, which allows us to give a more complete picture of the law, of all legal institutions, as it introduces legal dogmatics into the context of social communication. The communicative approach offers legal science new tools for understanding law and legal phenomena in their social dimension, which is the basis for using it as a methodological basis for current research in the field of lawmaking and law enforcement.