Legal Family Research Articles

О правовой системе Шотландии

This research paper analyses the Scottish legal system, which both legal theory and comparative jurisprudence often treat very superficially. It is usually just an observation that the Scottish legal system is not subordinate to English law. The paper describes the history of formation and development of the Scottish legal system, drawing attention to the French legal orientation on the one hand and to the strengthening of the common law tradition on the other. The paper also highlights the Scottish legal system, the criminal court system, the criminal procedure, the civil court system and the lower courts as being significantly different from English law for historical reasons. The paper describes the legal sources of law - case law and legislation, as well as certain branches of law. Emphasising that the Scottish legal system is part of a mixed (hybrid) legal family as a result of state-legal integration and convergence of legal systems, the latter must be distinguished from a mixed (pluralistic) legal family which combines elements of the common law legal family with elements of the Romano-Germanic legal family as well as with institutions of traditional and religious legal systems. In conclusion, it is emphasised that, firstly, the actualisation of mixed legal systems is largely linked to globalisation; secondly, it is argued that mixed legal families should be taken into account in their classifications. The author declares no conflicts of interests.

Административная преюдиция: зарубежный опыт законодательной регламентации

The scientific article is devoted to the study of administrative prejudice in the criminal legislation of foreign countries. Special attention was paid by the author to the problems of legislative regulation and enforcement of norms containing administrative prejudice, both in the countries of the Anglo-Saxon legal family (USA) and the Romano-Germanic (Germany), and in the CIS countries, the "post-Soviet" legal family (Republic of Belarus, Georgia, Republic of Kazakhstan). Some features of the legislative consolidation of administrative prejudice are analyzed in accordance with the specific applicable norms of national criminal law, court decisions, and the official point of view of the legislature.

The legal nature making amends and compensation for the damage caused by the crime under Russian and German law

The article examines the legal nature of complex intersectoral legal institutions for making amends and compensating for the damage caused by a crime under Russian and German law and reveals their content. The author’s definition of a complex intersectoral institution is given, and an algorithm for solving in case of a conflict of legal norms of various branches of law is proposed. Making amends for the damage caused by a crime, being the broadest form of voluntary compensation for harm in Russian law, is considered in comparison with a similar German legal institution — compensation for the damage caused to the victim by a person who has committed a criminal offense, which is also a form of voluntary compensation for harm. Both institutions contribute to the voluntary resolution of a criminal-legal conflict resulting from the commission of a criminal offense, and allow taking into account the real needs of the victim. Despite the presence of common principles in Russian and German criminal processes: both belong to the Romano-Germanic (continental) legal family, are based on the principle of legality, the functioning of such institutions as amending and compensation for the damage caused by a crime testifies to different models of justice in Russian and German criminal proceedings. Legal regulation and the construction of making amends for the damage caused by a crime reflect the general punitive direction of the Russian criminal proceedings. At the same time, legal regulation and the established practice of applying compensation for damage caused to the victim mean the introduction of the principle of expediency and an element of restorative justice into the German criminal process. Taking into account the German experience of compensation for the damage, proposals were made to improve the Russian institution of making amends for the damage caused by a crime.

Techniques of legal writing: contemporary realities

Article deals with studying the techniques of legal writing. It has been determined that legal writing – tool, which is used in the process of creating legal documents. Legal writing is understand as any text prepared by a lawyer that has legal content, whether it is a half-page business letter, a hundred-page memorandum or legal opinion, a draft contract or a draft law, a procedural paper intended for submission to a court, or another document. The rules of legal writing were initially produced only in practical activities. Understanding of what legal writing is was formed gradually, as legal reality became more complicated. During the evolution of legal writing rules the qualitative characteristics of techniques, methods, ways of conducting legal work, which are included in the arsenal of legal writing, have been changed. The rules of legal writing in different legal families help answering for the following questions: formation of judicial precedent, use of the law in the Romano-Germanic legal system etc. To examine the connection between the notions of « technique » and « legal », we appeal to philosophical understanding of « technique » . It has been determined that « technique » – is a complex of human actions aimed at dominating nature, the purpose of which – to give to the life of person such an appearance that would allow him/her to remove the burden of need and find the form of environment he/she needs. It has been summed up that the function of legal writing is manifested in such a form of legal practice as law-making. As the result of improving the techniques of legal writing, the array of positive law loses its spontaneous character and becomes an expression of a certain preconceived structure subordinate to the logic of the internal structure. Juridical text – a written medium of legal information and one of the most important living forms of expressing the law. It has been generalized that the techniques of legal writing – component of legal technologies that is a system of professional legal rules, tools, techniques and methods that are used to ensure the constructiveness of the written construction and perfection of normative-legal acts.

Review of the international scientific conference “Principles of constitutional law as legal regulators of modern life and development”

The main theses of the speeches of the participants of the International Scientific Conference “Principles of Constitutional Law as legal regulators of modern life and development” are summarized. The speakers drew attention to the fact that the principles of Constitutional Law as a social phenomenon have a high degree of fundamentality, adaptability to changing conditions; their implementation in practice requires a rational approach to the correlation of principles and norms of Constitutional Law, as well as the resolution of emerging differences regarding their understanding and application in practice. The participants of the conference concluded that the world is multipolar, at the same time there may be different constructions of the principles of Constitutional Law, characteristic of different legal families and stages of development of the state and society.

Зарубежное законодательство об институте замены ненадлежащей стороны в административном судопроизводстве

The article provides a comprehensive analysis of foreign legislation on the institution of replacing the wrong party in administrative proceedings. The legislation of the Romano-Germanic and Anglo-Saxon legal families was taken as a basis. As a result, it was concluded that it is necessary to form an institution for replacing the wrong party in domestic legislation. The purpose of this study should be considered a systematic analysis of foreign regulations governing the replacement of the wrong party in administrative proceedings. Thus, this approach within the framework of comparative law is focused on identifying the features of this institution in foreign countries. Of particular interest is the division of foreign legislation into the Romano-Germanic legal family and the Anglo-Saxon, respectively. In addition, a detailed study followed by a comprehensive analysis of the legal systems of foreign countries is widely used by modern scientists in this field, as well as law-making bodies of many legal states. The complex application of the comparative method is focused on improving the regulations, in particular with regard to the institution of replacing the wrong party. The foreign legal and technical methods revealed as a result of the study can become the foundation for the regulation of modern social relations by the rule of law. Methodological basis: when writing this article, general and special methods of scientific knowledge were used. In particular, the dialectical method as the main way of objective and comprehensive knowledge of reality, as well as the formal logical method, including the methods of analysis and synthesis, deduction and induction, systemic, comparative legal, historical legal and formal legal approaches. Research results: the article is supposed to conduct a comprehensive and comprehensive analysis of foreign legislation on the institution of replacing the wrong party in administrative proceedings, within which the legislation of the Romano-Germanic and Anglo-Saxon legal families was taken as a basis.

Criminal liability for organizing a stable group of persons aimed at committing crimes in the field of computer information

The article analyzes legal problems arising in connection with the establishment of criminal liability for organizing a stable group of persons for committing crimes in the field of computer information. The urgency of this topic is due to the negative dynamics of crimes associated with computer technology and committed by criminal communities or organizations as well as the constant growth of damage from them. The author evaluates the current criminal law measures to counter organized cybercrime, identifying their shortcomings. The provisions of domestic and foreign criminal legislation were analyzed, which made it possible to identify some legal gaps and identify ways to overcome them. The article proves that the Criminal Code of the Russian Federation does not fully cover cases of the creation of organized criminal groups aimed at committing illegal activities in the field of computer information. In particular, responsibility is not differentiated between a group of persons by prior conspiracy and an organized group; the category of crimes and the absence of the purpose of making profit do not allow qualifying the act as committed by a criminal community or a criminal organization. It is advisable to recognize the very fact of the creation of illegal organized formations as a separate tort, as is done in the legislation of individual countries of the “common law” legal family, as well as in domestic norms regulating countering terrorism and extremism. It is proposed to include in the Criminal Code of the Russian Federation a norm providing for responsibility for organizing a stable group of persons aimed at committing crimes in the field of computer information. The wording of the corresponding article has been formulated, which can be used as a recommendation when improving legislation.

Application of estoppel in the law of the Anglo-Saxon legal family part 1

Application of estoppel in the law of the Anglo-Saxon legal family part 1

The effect of the legal tradition on the law about public corporate governance - recommendations for Vietnam

Along with the process of integration and attracting international capital, the law about public corporate governance of Vietnam also includes the need to receive high standards of the regulations of other countries. However, to ensure the process of completing and exercising law enforcement effectively, helping to reduce enforcement costs for the corporation, the legal tradition of countries is a factor that needs to be considered adequately by the legal origin. The legal tradition has a profound influence on the reform and improvement of the country's modern legal system and is the source of the differences among countries' corporate governance legal systems. Legal traditions have a strong impact on investor protection mechanisms and corporate governance models. Within the scope of this article, the author generalizes the effects of legal traditions on the construction and consolidation of corporate governance laws of legal families in different countries. Simultaneously, the paper focuses on analyzing the case of Vietnam where there is a Civil legal tradition, but the corporate governance model is hybrid with the corporate governance model in countries with a Common law tradition. Consequently, the analysis shows the need to establish new values on the basis of legal traditions to modernize the law on public corporate governance in Vietnam. In addition, propose directions to improve the adjustment efficiency of Vietnam's public company governance law.

Anglo-Saxon legal Family

Anglo-Saxon legal Family

К вопросу об отнесении российской правовой системы к романо-германской правовой семье

Russian legal system is like the legal systems of the countries of the Romano-Germanic legal family on formal grounds. The Russian legal system, as well as the legal systems of the Romano-Germanic legal family, are characterized by such features as the influence of Roman law on the formation of the legal system; recognition of a normative legal act as the main source of law, among which the law occupies the supreme position; codification of the current legislation; division into public and private law and division of law into branches. When writing the article, the author used the following methods: system analysis, dialectical, logical, comparative, analysis and synthesis, induction and deduction. She got the following results: - the Romano-Germanic legal family developed regardless of the tendencies of increasing the centralization of power and the achievement of political goals; - civilizational flows from Europe and Asia influenced the development of Russia. The Golden Horde also had a considerable influence. In society, relations of citizenship were established, as in the East, and not those of vassalage, as in the West. The main difference between the formation of Russian society and the West lies in the fact that in the Russian state there was a steady process of leveling the individual, destroying the autonomy of society and complete subordination of the subjects to the power of the Grand Duke and Tsar; - the most important feature of the Romano-Germanic legal family is the reception of Roman law; - Roman law had less influence on the Russian legal system; - the peculiarity of historical development led to the differences in the essence, content and structure of Russian law and the legal systems of the Romano-Germanic legal family; - the Romano-Germanic legal family is based on natural law. A clear division into private and public law and branch division is typical; - the law in the countries of the Romano-Germanic legal system is considered as a means of maximally clear presentation of the rules of law based on natural law principles that ensure their uniform implementation and application; - in the Russian legal system since the days of the USSR, the importance of a law was the most natural way of creating the law, which at the same time is identified with the will of the ruling class, which does not always meet the real needs of society, its level of development; - a tendency to legal nihilism has always characterized legal consciousness in Russia; - the presence of formal and legal similarities between the Russian legal system and legal systems of the Romano-Germanic legal family makes it possible to move toward their rapprochement not only in terms of formal but also on substantive characteristics. The author declares no conflicts of interests.

Roman-Germanic Legal Family

Roman-Germanic Legal Family

Islamic Legal Family

Islamic Legal Family

Методологічні аспекти розуміння верховенства права в Україні

The ideal of the rule of law has long been an essential component of international legal instruments, especially on human and civil rights and freedoms. Modern realities of 2022 remind the world that without the rule of law at all political and legal levels and in all countries, the world can return to the barbaric way of resolving conflicts “who is stronger, that’s who is right”. The author`s experience of teaching of the discipline “Methodology of application and interpretation of the rule of law” for students of “Master” degree, shows some difficulties in students’ understanding of such a complex phenomenon as “rule of law”. In order to simplify its understanding at the initial stage of study, it proved methodologically appropriate, using the method of structural-genetic analysis and synthesis, to depict the rule of law as a pyramid consisting of principles and elements already studied by junior students. In this way, students systematize knowledge, focus on important aspects of already learned material and realize the need for acquired knowledge, “including” them into new material. One of the leading places is given to the principle of the rule of law in the Constitution of Ukraine (Article 8). Despite the acquisition of the rule of law as a global ideal, its concept, according to many Western jurists, still remains “essentially controversial”. The author presents a visual image of the rule of law, adapted to the Romano-Germanic legal family in the translation of certain terms, which facilitates its understanding. Taking into account the studied principles, the pyramid of the structure of the rule of law consists of the following elements, starting from the basic level, the so-called “foundation”: right to assemble, in Ukraine the freedom of peaceful assembly is analogous; democracy through formal legal processes - democratic procedures; access to justice; freedom of speech / press; right to silence; presumption of innocence; fair trial & independence of judiciary; citizens and government are accountable by the law (responsible before the law); equality before the law. The analysis of structural elements and visual representation of the pyramid of “rule of law” is the purpose of this scientific article. This methodological approach has proven itself in teaching the theoretical foundations of the rule of law and to help students master this complex phenomenon.

The standard of forensic report veracity in criminal proceedings

Procedural (relevance and admissibility) and epistemological (due quality of objects, accuracy of source data, approved research methodology was applied) conditions and criteria (epistemological: scientific, methodological and logical substantiation of expert conclusions, procedural: compliance with other case files) that together determine veracity of the expert conclusion are outlined.
 The Article Purpose is to analyze views of scientists concerning veracity of evidence in general and the expert conclusion in particular; clarify circumstances preceding the expert conclusion and conditioning its accuracy; emphasize epistemological and procedural criteria for this characteristic and compare with the procedure for determining veracity of forensic examination in the countries of the Anglo-Saxon Legal Family and develop a standard based on which veracity of the forensic report can be established by results of performed research.
 The scientific and methodological substantiation presupposes general and specific substantiation of research results of submitted objects. The logical substantiation is argumentation of the expert’s interim and final conclusions. The criterion for procedural veracity of the forensic report is in its consistency, compliance with other pieces of evidence. It is advisable to use the standard of proof “beyond a reasonable doubt” to determine conformity of the forensic report with objective reality.
 The standard of forensic report veracity implies that conditions of relevance and admissibility of the forensic report are met, objects submitted for forensic examination are of appropriate quality, expert conclusions are based on general scientific and methodological provisions and results of a particular expert research stemming from them, logically reasoned, conformed with other pieces of evidence in a criminal proceeding and recognized as corresponding to actual circumstances of the offense beyond any reasonable doubt.

Recodification of the Civil Code of Ukraine and modernisation of the Civil Code of the Republic of Kazakhstan: A comparative analysis of the main ideas

Systematic updating of the civil legislation of Ukraine and modernisation of the civil legislation of the Republic of Kazakhstan are time-consuming tasks as evidenced by the analysis of changes that were made to the civil codes of Ukraine and the Republic of Kazakhstan and their law enforcement practice. Work on updating civil legislation requires an assessment of the current state and prospects of socio-economic development of Ukrainian society and the state, in particular the development of such an important component as the national legal system, which is presented in the concept of updating the Civil Code of Ukraine. It is crucial that the main areas of the concept orient the development of civil law in Ukraine, considering the current experience of recodification of civil codes of other states within the continental legal family. Considering that civil legislation is also being modernised in the Republic of Kazakhstan, the purpose of this study is to compare the main ideas of recodification of the Civil Code of Ukraine and modernisation of the Civil Code of the Republic of Kazakhstan to establish a systematic approach and a unified concept for the development of civil law and form a clear guideline for the improvement of civil legislation. The study analyses the areas of updating the civil legislation of Ukraine and the Republic of Kazakhstan based on both general (historical, comparative, system analysis) and special (specific-sociological, formal legal, legal-technical, etc.) methods. One of the most reasonable ways to ensure continuity of legal regulation of civil relations and ensure the modernisation of the legal basis for the development of the sphere of social and legal relations in the long term is the approach that should preserve all the achievements of existing civil codes, considering modern European approaches and the specific features of civil and business turnover

Реформа испанского суда присяжных

The article discusses the reform of the Spanish jury court in 1995, based on the provisions of the classical jury court of the Anglo-Saxon legal family. The author uses a comparative legal method to identify the features of the adversarial and inquisitorial systems of law, allowing to distinguish between the main models of the criminal process. Comparing the essence of the American jury trial as a representative of the Anglo-Saxon system with its Spanish counterpart, the author comes to the conclusion that the reform didn’t lead to drastic changes, but it only strengthened the investigative nature of the process.

Labour Law Reforming at Qatar: comparative research

Paper proposed highlights the experience of Qatar's labor law reform, its features, peculiarities of the countries of the Muslim Legal family taking into account. Mainly directions of aforesaid reform and structural improvements in the legal regulation of Labor Relations in comparison with the pre-reform period are determined. A comparative study with the relevant directions of industry reform in Ukraine was conducted. Similar and distinctive features, advantages and disadvantages of both systems are analyzed. Conclusions about the possibility of borrowing positive foreign experience into the domestic labor and legal reality were showed. Studying of Labor Relations legal regulation experience in the Middle East on the example of Qatar permit to encourage colleagues to put out a scientific discussion about such types of employment contract as educational and service ones, its core conditions, consider the proposals of the trade union movement within the framework of joint committees, outline the problems of sponsorship law and repatriation in connection with subject of Labor Law, discuss problems and apply positive experience in regulating the work of home-based workers, consider the possibility of introducing the institute of anonymous complaints in labor law, pay attention to the experience of creation a labor justice system. Special attention should be paid to a physical attack on the employer or direct supervisor as reasons for termination of the employment contract at the initiative of the employer. Simultaneously, Domestic system of labor law, although it is distinguished by more long-timed traditions of statutory guarantees in field of Labor and Social Security Law, is not without the need to borrow foreign experience in order to update it for the needs of modern social development, which should be devoted to furthermore comparative legal researches.

EKOLOGIYA SOHASIDAGI JINOYATLAR OBYEKTIV BELGILARI VA O‘ZIGA XOS XUSUSIYATLARI: TAHLIL VA TAKLIF

In this article, such research methods were widely used as logical, systemic, comparative legal. In particular, the article explains in detail such concepts as in the sphere of environmental, general environmental crimes and special environmental crimes crime, gives the opinions of scientists about the signs of a crime, such signs as the social dangers of a crime, illegality, delinquency and inevitability of punishment. It also highlights the necessary signs of a crime, the opinions expressed by scientists in the theory of criminal law about these signs, and then the elements of the corpus delicti and the objective signs of the corpus delicti that characterize these elements are consistently described. This reflects the views and ideas of not only scholars of the Romano-Germanic legal family, but also scholars of the Anglo-Saxon legal family. In addition, the main attention in this article is paid to theoretical and practical problems related to the criminal-legal value of the subjective and objective signs of a crime and its specific criminal-legal aspects, as well as the necessary and optional signs of the corpus delicti of some crimes listed in the Criminal Code of the Republic of Uzbekistan. At the same time, the criminal legislation of the United States, Great Britain, Canada, Japan and the Russian Federation is analyzed, in connection with which specific proposals and recommendations have been developed for improving the criminal legislation of the Republic of Uzbekistan.

Determination of the judicial precedent in the system of sources of Ukrainian law

The article analyzes and determines the place of judicial precedent in the system of sources of Ukrainian law. The relationship between judicial precedent and case law is analyzed. It was found that the precedent gives the court decision on a particular case of a normative nature, determining the legal position of the judge is mandatory when considering similar cases. It is proved that this feature distinguishes precedent from judicial practice, which is understood as a set of court decisions on specific legal issues. It is determined that the principle of unity of judicial practice is not absolute, as the Supreme Court is endowed with procedural legislation in the prescribed manner to deviate from the previously formed legal position. The establishment of any restrictions will have a negative impact on the development of procedural law and judicial practice, will exclude the possibility of progressive development of law and social relations. The activity of the Supreme Court as the highest body of the judiciary with the functions of ensuring the uniform application of legislation and ensuring the unity of judicial practice, the acts of which are of paramount importance, is analyzed. It has been proved that the introduction of the “exemplary case” and “typical case” institutes is a step towards the recognition of judicial precedent in Ukraine and the unification in the legal system of our state of features and peculiarities of both legal families, Anglo-Saxon and Romano-Germanic. The position of scholars who refer the decisions of the Constitutional Court of Ukraine to “quasi-precedents” is supported. It is noted that European Court of Human Rights judgments are used as precedents for Ukrainian courts to apply in their own cases. It is concluded that given the positive impact of precedent on court cases, as well as in general on the regulation of public relations and overcoming gaps in the legislation, it is necessary to implement it at the legislative level as an official source of law.