Legal Law Research Articles

El debate de Javier Muguerza con Jürgen Habermas. (A propósito de la relación iuspoli(é)tica entre individuo y sociedad)

This paper explores the philosophical debate between Muguerza and Habermas, starting with the meeting of the two in the summer of 1994 in Madrid. To this end, some of the core aspects of their respective ethical and legal thoughts are interpreted and apostilled, both in their agreements and in their disagreements. The text focuses on the controversy between two of their apparently irreducible positions. Namely, the “primacy of the moral conscience of the individual”, defended by Muguerza, and the “primacy of the legal law of society”, advocated by Habermas. The paper concludes by suggesting a third approach, which methodically tempers the controversy, in reference to the duality of the “individual” constituted in-intra-societal relationship, and the “society” instituted by individuals-in-inter-relationship

Knowledge, Understanding and Handling of Medicolegal Issues among Different Cadres of Allopathic Practitioners in a Tertiary Care Hospital of Tamil Nadu

Increasing literacy rate, the social exchange of information on various forums, and online readily available data have raised awareness about patients' rights among the public, resulting in more legal suits being registered against the medical fraternity. Nearly one-third (75%) of doctors faced workplace violence at least once in their lifetime in India. Based on this background study has been conducted with the objectives to assess the knowledge and perceptions of the medical code of ethics and standard basic legal fundamentals and to find out the level of understanding on handling different legal situations and medical laws among doctors in a tertiary care institution. An institutionalbased cross-sectional study was conducted. Out of 120 participants, 68 (56.6%) were male and the remaining 52 (43.3%) were females. Nearly half of them were not aware of the importance of consent (49%), and the majority of the participants, 67 (5%) were not aware in which form the consent must be obtained. Overall, 63% of the participants examined the sexual assault cases at least once. Irrespective of the specialty and cadre, allopathic practitioners are grossly deficient in medicolegal knowledge, which is a primary concern and needs to be addressed urgently. It requires regular reinforcement training and workshops to update the medicolegal issues from time to time, at least annually. Concerned National organizations must introduce an accredited certificate course on Basic Medico legal laws (BML) and Advanced Medico legal laws (AML) to make literate doctors in medicolegal laws.

CONCEPT OF APPRAISAL INSTITUTIONS IN ASSESSING THE VALUATION OF INTANGIBLE ASSETS ON SMALL MEDIUM ENTERPRISES INTELLECTUAL PROPERTY AS OBJECT OF CREDIT GUARANTEE TO IMPROVE COMMUNITY'S CREATIVE ECONOMY

This study aims to analyze the factors that affect the effectiveness of Intangible Assets of Intellectual Property of Small and Medium Enterprises as objects of credit guarantees, and the concept of appraisal institutions in assessing the valuation of intangible assets of intellectual property of Small and Medium Enterprises as objects of credit guarantees in order to improve the creative economy of the community. The method used in this research is empirical juridical. The data used are primary data and secondary data. Data collection techniques data collection through library research and field studies (through questionnaires, focus group discussions, and interviews). The results of the study found that the five factors that affect the effectiveness of Intangible Assets intellectual property of Small and Medium Enterprises as objects of credit guarantees are legal factors, law enforcement, infrastructure, society and culture. The legal factor that affects is there is no special legal product for public appraisers of IPR Intangible assets. In the practice, IPR intangible assets have not been accepted by all banks as objects of basic guarantees but only as objects of additional guarantees. It is caused by no trust from the bank toward the value of IPR as basic guarantees, there have been no appraisal institutions, and there is not intellectual property rights market yet, that makes IPR is not commonly used by banks and SMEs as IP owners. The concept of appraisal institutions in assessing the valuation of intangible assets of intellectual property of small and medium businesses as objects of credit guarantees, in order to improve the creative economy of the community, is necessary to form an appraisal agency through the products of laws and regulations. These regulations, among others, regulate the intangible assets of IPR, the purposes and objectives of the IPR assessment, the requirements to become an IPR appraiser, the function and authority of IPR assessment, the valuation method used, and so on.

СТАНДАРТ ДОКАЗЫВАНИЯ ПО ГРАЖДАНСКОМУ ПРОЦЕССУАЛЬНОМУ ПРАВУ ЛИТВЫ И РОССИИ: СРАВНИТЕЛЬНЫЙ АНАЛИЗ

The article is dedicated to the memory of Professor M.K. Treushnikov. The professor was the head of the candidate of law thesis of the author of the article, therefore, the beginning of the article is devoted to the author’s memories of M.K. Treushnikov. Since the main field of scientific research of M.K. Treushnikov is related to evidence and proof in civil proceedings, the main part of the article is devoted to the issues of the standard of proof. On the basis of the comparative method the author analyses how the approach to the standard of proof in Lithuania and Russia changed after 1990, both in legal doctrine and case law. It is concluded that there are many similarities in the standard of proof between Lithuanian and Russian civil procedure law, but there are also differences, which are due both to different legal doctrine approaches to this issue and to different case law. In particular, the author points out that there must be common standards for such cognitive, logical activity, which exist regardless of the legal system operating in one state or another, for there is only one logic.

Logical Design of Legal Education. Towards the Anniversary of Kutafin Moscow State Law University

The paper deals with the problem of interrelation between two research programs — logic and jurisprudence — from antiquity to the present. Traditional logic has created and developed the Great Triad “Concept — Judgment — Inference” that has become an educational and methodological canon of humanitarian knowledge and education in general and legal knowledge and legal education in particular. The doctrine of the concept, the doctrine of judgment, the doctrine of inference (more precisely, the doctrine of proof) are essentially used in legal proceedings, law-making, and law enforcement. The author resorts to modern achievements of the theory and technology of scientific knowledge as a research methodology. Logical knowledge itself appears in the form of methodology. Under this approach, any science, both natural and humanitarian, necessarily defines its conceptual corpus. Any science, creating its own description of the subject area, uses theoretical provisions in the form of a set of theses and arguments expressed by judgments. Any science substantiates its vision of the world using a system of evidence. All these properties are subject to and correspond to the subject of logics taught in every law school in the context of legal logics or logics for lawyers. The place of logic in the framework of legal education is considered as a hierarchy of problems of the relation between the phenomena of “the logical” and “the legal” within the framework of the world-historical process, the relation between the phenomena of “the logical” and “the legal” within the framework of domestic history and domestic education system before 1917, i.e., before the overthrow of the monarchy and the establishment of the Soviet power, the relation between the phenomena of “the legal” and “the logical” in Soviet and post-Soviet history, creation of an education system, including legal education, in our country and the development of the logical science and logical education at Kutafin Moscow State Law University. The uniqueness of the study is associated with the use of the Transcript of the All-Soviet Meeting of Logic Teachers of Higher Educational Institutions held on June 21–26, 1948 in Moscow discovered and introduced into scientific circulation by the author of the paper. The result of the study proves the special importance of logic for lawyers as a reliable tool in situations of lawmaking, law enforcement and interpretation of legal norms.

Legal nature of spontaneous construction as a complex category: questions of theory and practice

The article is devoted to the problems of spontaneous construction in comparing the public interest in ensuring the sustainability of civil turnover, the introduction of as much property as possible through the elimination of certain defective legal regimes, as well as private interests of landowners, developers and some other participants in civil turnover (customers, contractors, equity investors, etc.). The approach to defining the essence of unauthorized construction as a way to acquire ownership of certain real estate, which has certain defects in the identification process, as well as in terms of behavioral and object perception of this legal phenomenon is determined. It is established that in the legislation of the European Union there is a perception of the property law (Germany, Austria) and the binding legal law (France) model of the legal nature of spontaneous construction. Ukrainian legislation reproduces the features of both models within the Civil Code of Ukraine and special regulations. It is emphasized that the law-making legal fact for the recognition of the relevant real right to unauthorized construction is a court decision or a decision of an administrative body. At the same time, in order for the emergence of property rights, the case law does not in any way level the existence of the procedure for putting immovable property into civil circulation. The judicial practice and the development of the science of civil law are analyzed, on the basis of which it is concluded that the current approach, which differentiates construction activities, endowed with signs of unauthorized construction, where the determinants are the place of its holding, the volume and quality characteristics associated with the lawful or illegal use of land. Given the behavioral or objective perception of the legal nature of unauthorized construction, an analysis of the case law of courts of various instances, resulting in the own vision of resolving legal situations to regulate public relations for unauthorized construction depending on the legal status of entities claiming to legitimize it, or the legal regime of such property. According to the results of the study of the content of the draft Concept of renewal of the Civil Code of Ukraine, attention was drawn to the prospects for further improvements in the legal regulation of civil relations in relation to unauthorized construction.

Strengthening of the institutional capacity of the Constitutional Court of Ukraine in the conditions of modern society as a scientific and practical problem

Modern scientific research of the problems of constitutional jurisdiction in Ukraine is conditioned not only by their established theoretical and practical significance for legal doctrine and law enforcement. In the context of modern global challenges and threats that inevitably affect the domestic legal order of Ukraine, taking into consideration the national problems in the field of human rights and freedoms, interaction between state and society, lawmaking, law enforcement and administration of justice, etc., the need to strengthen the institutional capacity of the Constitutional Court is an important scientific and practical task. It is aimed at strengthening the stability of the institution of constitutional jurisdiction in difficult sociopolitical situations, restoring public confidence in the Constitutional Court and the state in general, improving the legal protection of the Constitution of Ukraine and ensuring its supremacy, reviving respect for the Basic Law and the rule of law, accommodating the functioning of the Constitutional Court to the best international standards of constitutional jurisdiction. The purpose of the article is to substantiate the study of the problem of strengthening the institutional capacity of the Constitutional Court of Ukraine as a complex scientific and applied issue, which provides for its solution in the interdisciplinary scientific space. General scientific research methods, sociological method, structural-functional, as well as interdisciplinary approaches, are used. The institutional capacity of the Constitutional Court of Ukraine is considered as an institutional property of a body of constitutional jurisdiction, which reflects its organisational and functional ability to ensure the implementation of its tasks, functions, and powers under certain conditions and resources. Indicators of the institutional capacity of the Constitutional Court are efficiency, stability, and adaptability to changes. Strengthening the institutional capacity of the Constitutional Court should take place through legal support for strengthening its independence from political influence, improving mechanisms for selecting candidates for judges, modernising constitutional proceedings, developing a mechanism for the Court's interaction with the public, and so on. The main directions of the study of the institutional capacity of the Constitutional Court are determined

State of the Reform of Legal Capacity in Chile

The Chilean legal regulation of disability has advanced towards an adequate legal framework for the progressive development of state practices respectful of the rights of people with disabilities. The ratification of the CRPD (2008) has been followed by an increasing amount of legislation directed to the inclusion of people with disabilities. The most important of this new disability regulation is the Law 20422 [on equal opportunities and social inclusion of people with disability]. Chile, in this way, can be regarded as a slow but persistent student of the teachings of the CRPD. Despite these positive developments, certain obligations under the CRPD are still pending, especially clear in the legal regulation affecting mental disability. The controversies surrounding legal capacity and mental health law are probably the most important issues surrounding the hesitation to carry out a reform.

Dispute about the Nature of Law

The article analyzes the conditions for a dialogue between Western and post-Soviet philosophy and theory of law on the nature of law (in terms of the first), or understanding of law (in terms of the second), which would create an opportunity for the organic inclusion of the “dispute about the nature of law” elements in the context of the discussion and solving issues relevant to the post-Soviet philosophy of law, including the shift of emphasis from the theoretical to the practical aspect of the problem of the nature of law.
 The research begins with a general description of the peculiarities of the “discourse of legal thinking (understanding of law)” inherent in post-Soviet jurisprudence and the identification of ontological and analytical criteria for classifying the types of understanding of law (natural law, positivist, sociological) as the basis for further convergence of post-Soviet and Western experience of understanding of law.
 Further, the meaning of the concept of validity of law in its social, moral and legal varieties for understanding the nature of law in general and the corresponding types of such understanding are revealed.
 In the final part, attention is drawn to the practical aspects of the study of the nature of law, carried out in the context of “extraordinary cases” existing on the verge of law and un-law. Further analysis reveals the methodological possibilities of comprehending the concept of law through the correlation with the counter-concept of “un-law” using examples: post-Soviet discussions about the relationship between law and statute, legal and non-legal law; Hegel’s concept of right and non-right; contemporary non-positivist approach by Robert Alexy in accordance with the criterion of the “limiting border” of law according to the Radbruch formula.
 The conclusions summarize the provisions on the general and distinctive features of the “discourse of the nature of law” and “discourse of understanding of law”, determine the prospects for their rapprochement.

Boundary Adjustment, Transformation and Liquidation of Specially Protected Natural Areas: Problems of Legal Regulation and Law Enforcement

Based on the analysis of federal and regional legislation, the practice of their application by authorities, judicial practice, federal legislative initiatives and approaches in the scientific literature, the paper examines the issues of boundaries adjustment, transformation and liquidation of specially protected natural areas. All the considered aspects of this problem indicate the need for its legislative solution at the federal level by clearly defining these concepts, criteria and grounds for decision-making, the sequence of procedures and the timing of decisionmaking. Prior to the adoption of such a decision at the federal level, regional and municipal practice should be subject to revision. The paper concludes that when addressing the development of a network of specially protected natural areas, one should proceed from the priority of preserving natural and historical and cultural complexes and objects on the territory of specially protected natural areas over other tasks, as well as a scientifically based combination of environmental, economic and social approaches for making managerial decisions, systemic and comprehensive solution of problems in the field of organization and functioning of specially protected natural areas. Such principles can only be ensured on the basis of a comprehensive perspective view of the development of a network of such territories, which should be enshrined in the concept of development of specially protected natural areas.

Freedom of Press in Myanmar

Every person has to enjoy freedom of expressing their opinion and information and they also have the duties to refrain from affecting the right and reputation of other persons. Since it is not an absolute right, the person who practices the right to freedom of press needs to respect the rights and reputations of others. This paper used a qualitative approach by reviewing relevant literature such as international legal instruments, domestic laws and reports regarding freedom of expression. This research mainly based on primary and secondary resources because the required information is obtained from Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), General Comment No.34, Johannesburg Principles on National Security and some Myanmar laws such as the Constitution of the Republic of the Union of Myanmar, the Telecommunication Law 2013, the News Media Law 2014, the Official Secrets Act 1923 and the Unlawful Association Act 1908. Although Section 354(a) of the Constitution of the Republic of the Union of Myanmar provides that every citizen has a right to express and publish freely their convictions and opinions, many people including journalists and news media men can be prosecuted under the provisions of the existing laws. Thus, when many people posted information in their own pages, they have been charged with the provisions of the existing laws. Therefore, the existing laws in Myanmar which contain restricted provisions for freedom of press should be repealed or amended and new laws should be enacted in line with the International Human Right standards.

Crimean Tatars in the Governing Bodies of the Taurida Province in the First Half of the 19th Century

The author identifies the amount of Crimean Tatars who served as officials in Taurida Governorate in the first half of the 20th century. The article is based on archival data, address-calendars and mesyatseslovs of the Russian Empire. Russian politics in the region after the Crimean annexation was characterized by an active interaction with the local population. The imperial authorities gave the Crimean Tatars broad rights and involved them in civil and military service. Tatar murzas and beys who entered service closely interacted with Russian officials and thus got acquainted with the Russian language and culture as well as with the new legal system. While the largest number of Crimean Tatars were in service during the reign of Catherine II, their number began to decline under her successors. The author argues that the Russian authorities interaction with the Crimean Tatar nobility was based on mutually beneficial conditions. The state received the loyalty of local leaders, which provided stability and allowed for communication with the ordinary population. In turn, the murzas and beys received titles and ranks, which allowed them to increase their property and keep their social status. However, the number of Crimean Tatars in local government functions during the first half of the 19th century was low. They served in the governing bodies only by election from the nobility. This was a result of central policy but also of the low level of training among Tatar officials. Many of them were not familiar with legal procedures laws and could not read and write in Russian. Consequently, they preferred service in military formations, which was more prestigious and did not require special training.

The Relationship Between Initial Tender and Mini-Competition: EU and Lithuanian Perspectives on Framework Agreements

The article conducts a comprehensive scholarly analysis of framework agreements – a public procurement technique often used across different European jurisdictions. Besides examining the general legal framework of the EU and Lithuanian law on framework agreements, the article also examines the newest EU case law. The authors analyse the relationship between the initial tender procedure establishing the framework agreement and the subsequent mini-competition that follows under the former to award the public contract. In contrast to the Lithuanian legal regulation and related case law, the authors argue that these two stages are interconnected and must be viewed as a unified part of the same procurement process in line with European legal doctrine. Finally, the article highlights the differences between framework agreements and public contracts.

Penegakan Hukum Mahar Politik dalam Pilpres 2019 Ditinjau dari Politik Hukum Pidana

The issue of political dowry, relatively, becomes a sustainable warning of problems in every general election in Indonesia. Such as the issue of Sandiaga Uno, who provided political dowry in the 2019 presidential election. The allegation was started by the Deputy of General-secretary of the Party of Democrat, Andi Arief, who stated that Sandiaga Uno had provided 500 billion rupiahs to PAN and PKS respectively so that those two parties would support him to nominate as the Candidate of Vice President for Prabowo Subianto. Political dowry has been a serious issue and almost constantly becomes an interesting topic to be reported and studied in every general election. Although it is popular, the issue of political dowry is a case that is relatively difficult to prove its truth (court decisions). In fact, explicitly, political dowry has been regulated in Article 228 on Law Number 7 of 2017 concerning the General Election (Election Law). However, it does not expressly provide a deterrent effect to the political dowry actors. This reality becomes the basis of encouragement in conducting this research. The theory used in this research is legal politics and law enforcement. While the method used is normative legal research with a statutory, conceptual, and comparative approach. The output of this paper is that the handling of political dowry cases in the presidential election needs a serious concern. And then, the regulation on sanctions, which still be administrative in nature, against the actors of political dowry in the Election Law is considered to be inappropriate. So that criminal policy is needed to strengthen the law enforcement and strict legal instruments against criminal acts of political dowry in the future election (ius constituendum).

Implementasi Pendaftaran Tanah Sistematis Lengkap Berbasis Partisipasi Masyarakat di Desa Dukuh Kecamatan Ngadiluwih Kabupaten Kediri

Regulation of the Minister of Agrarian and Spatial Planning / Head of National Land Agency Number 6 of 2018 on 2018 on Complete Systematic Land Registration has been improved by adding its implementation based on society participation. This is to achieve the target in 2025 that all land must be registered. Kediri Regency in 2019 has 1.386 km² of land from 1.523.92 km² have not been certified. The head of the Kediri Regency Land Office formed 4 PTSL working area unit team but can not to handle the number of targets that had to be solved. Technical instructions of PTSL+PM is a reference to implement PTSL +PM in Dukuh Village so that the society can be actively helped Puldatan work quickly and carefully. The study aims to determine the implementation model of a complete systematic land registration policy based on society participatition in the Dukuh Village. The research method that will be used is a descriptive qualitative. Research has been taken and the resulths show that the implementation of the PTSL+PM policy in Dukuh Village has done well and achieve the registration target of 85% of the total quota of 2500 fields. This is seen from the content of the policy that requires the interests of the President in ensuring legal law. Adequate resource in terms od human resources, budget, facilities make implementation has done optimally in Dukuh Village.

The Problem of the Right to Trial: The Theory and Practice of Dualism and Interaction between Substantive and Procedural Law

Continuing the study of specialization of Russian civil procedural law, the author, based on the invariable perspective of its action, namely: a standardized court procedure of civil proceedings in administration of justice in a certain civil case and protection of the right, dwells on certain issues of its structural and functional characteristics — classification of procedural norms, mechanism of procedural regulation, mechanism of procedural legal relationship, etc. Through the context of the principle of dispositiveness, when clarifying the scope of its action and content as the legal beginning of legal proceedings (its leading element is the right to trial leading to the interaction of substantive and procedural law in the course of judicial protection of the right), the author analyzes and reveals the content, substantiates connections and relations between various interdisciplinary phenomena of law (a claim, the right to claim, etc.). The latest jurisprudence illustrates the importance of the conceptual legal apparatus for the development of legal science, law and improvement of its implementation in the Russian legal order.

Defending against crisis measures of Czech government in connection with COVID-19 pandemic

The COVID-19 pandemic required a number of emergency measures in the Czech Republic, which included crisis measures of the Czech government. These measures have often signifi cantly affected a number of constitutionally guaranteed rights and freedoms of individuals and legal entities, who did not always agree with the government measures, especially with their content, scope and duration. The article therefore deals with the basic question of whether these persons (affected by the government crisis measures) can or could defend themselves directly against these measures, and if so, by what legal means and under what conditions? The author also addresses the question of what the legal form of these government crisis measures is. Determining the legal form of a certain activity is the primary precondition for us to be able to correctly determine the appropriate means of defence. Unfortunately, the law does not regulate this subject matter. It is therefore necessary to rely primarily on the findings of legal science and relevant case law (especially of the Constitutional Court of the Czech Republic and the Supreme Administrative Court).

The Survey of Use and Ownership Rights in Finnmark – A Change of Direction?

Abstract In 2008, the Finnmark Act initiated a process of surveying land rights the Sámi and others may have in Finnmark, the core Sámi area of Norway. The Finnmark Commission, which was established to conduct the survey has completed six investigations. The assessments and conclusions in the first five reports are so similar in terms of collective rights appears as cut from the same cloth. In December 2019, the Commission presented its sixth report, which covers the municipality of Karasjok, a community with a Sámi majority. This report marks a significant change from the previous ones, as the Commission for the first time concludes that the people in an investigation field own their outlying areas. This article examines how the Commission arrived at that result, pointing out that it is more an outcome of a different approach to the legal history and international law, than substantive differences in factual circumstances.

PERLINDUNGAN HUKUM TERHADAP PELAKU TINDAK PIDANA MEMBERIKAN HAK PILIH LEBIH SATU KALI PILKADA 2017 DI KABUPATEN ACEH BARAT

Every Indonesian citizen actually has the same rights before the law. Likewise, the perpetrators of criminal acts get treatment in accordance with the capacity of the acts committed. Legal protection does not really focus on welfare, but rather on the determination of the consequences of a legal event. This is outlined in the 1945 Constitution Article 27 Paragraph 1. Responding to the paradigm of thinking about the perpetrators of criminal offenses should get the maximum punishment, it does not mean to impose a sentence that exceeds the legal capacity in force in the country. this also applies to the double cast in the 2017 regional elections which took place in the District of West Aceh. The mechanism of the process of legal protection for perpetrators of criminal acts, is part of legal efforts in ensuring justice with legal certainty for the benefit of the law through formal and or material stages. Law Number 16 of 2011 concerning Legal Aid and Law Number 39 of 1999 concerning Human Rights is a form of the state's seriousness in guaranteeing the constitutional rights of each of its citizens to obtain recognition, guarantees, protection and fair legal certainty and equal treatment. before the law. Keywords: Protection, Law, West Aceh

Principles of decriminalization of criminal law prohibitions

The article deals with the principles of decriminalization of measures of criminal law influence based on a comprehensive system analysis. It is noted that the main direction of criminal law policy is the decriminalization of acts that determine the object of such policy influence. The principle of sufficient social danger implies that the act causes significant harm to the public interest. The principle of the possibility of a positive impact of non-criminal law prohibitions on human behavior involves settling the issue of effective counteraction to the act. The principle of the relative prevalence of acts to be decriminalized emphasizes the need to take into account their individual nature when establishing legal liability for acts. The principle of the predominance of positive consequences in decrim-inalization is especially relevant for economic activity. The principle of timeliness of decriminalization means its implementation at the time of its occurrence, when the act does not pose a social danger, which implies the harmfulness of belated decriminalization.The essence of decriminalization is expressed in the legislation through the principles of law – thus ensuring the formation of the legal law, which means an officially recognized, binding legal act, which is based on the principles of law as rules applicable to the regulation of specific social relations. Decriminalization should be carried out in accordance with systemic principles. If necessary, this is supplemented by the construction of optimal models. This approach to the problem is due to the need to create an appropriate law-making mechanism that would avoid mistakes in reforming criminal law. The principles of decriminalization form a complex system, where one principle is based on the content of another. The fundamental principle of decriminalization is the principle of the rule of human rights and freedoms, which is concretized in general principles as the presumption of innocence, justice.