Legal Nature Research Articles

Obstruction the legal activities of security personnel: features of normative regulation

The article examines the specifics of obstruction of security personnel legal activities. The fact of insufficiency of scientific investigations regarding the legal nature of obstruction of security personnel legal activities has been established. The aim of investigation is to analyze the content of obstruction of security personnel legal activities and to determine the relevant types of criminal offenses against security activities. To achieve the aim of the article, a complex of scientific methods was used there, such as: the formal-dogmatic (legal-technical) was used when defining the terms «obstacle», «intervention» and «influence»; comparative legal was used within the limits of comparing the norms of the Criminal Code (CC) of Ukraine and the CCU draft. The application of the methods of analysis, synthesis, induction and deduction made it possible to build a logical structure of the scientific article and draw reasonable conclusions about the content of obstructing the legal activities of security personnel and determining the types of criminal offenses against security activities. The investigation analyzed the concepts of «obstruction», «interference» and «influence». It is expressed and substantiated the hypothesis that the terms «obstruction», «influence» and «interference» are used as signs of the objective side of a criminal offense should be considered identical. The concept of «obstructing the legal activity of security personnel» is defined as the creation of any obstacles or the establishment of restrictions in professional activity, with the aim of preventing the performance of official duties at the proper level or achieving its non-performance. It is substantiated that the following signs of obstruction of security personnel legal activity are: 1) action or inaction, which consists in preventing or complicating the performance of professional duties by security personnel; 2) the purpose of the action is directed against the legal activities of security personnel. It is concluded that the damage inflicted on security personnel consists of physical, material or moral and psychological consequences: physical consequences are manifested in harming the life and health of security personnel; material consequences are manifested in damages caused to the property of security personnel, subjects of security activity or natural and legal entities as customers of security services; moral and psychological consequences are manifested in damage to the mental health of security personnel.

The military ombudsman as an institutional guarantee for the protection of military personnel rights (based on foreign experience)

The article draws attention to the fact that today, in the conditions of Russian aggression, the state of compliance with the rights of domestic servicemen has significantly deteriorated, which requires the improvement of the constitutional and legal tools for their protection. The foreign experience of developed democratic countries in solving the problem of effectively ensuring the rights of the military through the introduction of specialized ombudsmen in the affairs of the armed forces is analyzed. The legal nature of military ombudsmen as specialized human rights institutions that have proven themselves positively in a number of states, the history of their introduction, and the positive consequences of their functioning are studied. Considerable attention in the work is devoted to the models of specialized ombudsmen in the affairs of the armed forces: a) regarding their legislative recognition and regulation of legal status (at the level of the country’s constitution, law or by-law); b) places in the structure of state power (parliamentary and executive); c) models that are structurally part of the armed forces; are not part of the armed forces, but are authorized to deal exclusively with military issues and ombudsmen of general competence, in which the function of protecting the rights of military personnel is provided for by law; d) individual ombudsmen and collegial ombudsman services; e) various models of ombudsmen in the affairs of the armed forces, depending on the scope and specificity of their powers. It was concluded that for Ukraine in the conditions of war, the introduction of the institute of the military ombudsman is not just timely, it is extremely necessary. The emergence of this institution, on the one hand, will complement the existing means of protecting the constitutional rights and freedoms of the military, on the other hand, it will contribute to the maintenance of their faith in justice, which will generally neutralize the wary attitude of military personnel towards the authorities, and mitigate conflicts between the state, its bodies, and the military. The military ombudsman, exercising his supervisory and human rights powers, will not only contribute to the effective protection of the rights of the military, but also mitigate the contradictions between the state and civil spheres, promote the democratization of the national military sphere, which under his influence should become more responsive to needs and requests of military personnel, which will ultimately guarantee the “democratization” of the military bureaucracy, which, thanks to his activities, will show more attention, sympathy and concern for military personnel.

Features of the regulation of the legal status of public law legal entities in France

In the article, the author considers issues related to the legal status of legal entities under public law in France. The legal status of legal entities under public law is regulated by the Constitution of France, special legislation in the field of administrative law. The article analyzes the criteria for distinguishing legal entities into legal entities of private and public law, developed by the judicial practice of French courts. In the article, the author examines the types of legal entities of French public law, in particular, the latter include: the state, territorial entities, public institutions. The article examines the legal nature and types of public service, which is carried out in the field of defense, transport, and industry management. The article defines a public service, as a rule, the specified services do not have the status of a legal entity, the specified status belongs to the state that creates these services. The author researches public institutions of France that belong to legal entities under public law. The article defines the concept of a public institution, classifies public institutions according to various criteria, and defines the organizational structure of these institutions. A variety of public institutions is industrial and commercial in nature. The author examines the historical aspects of the emergence and development of this type of institution. The article examines the characteristics of a public institution, in particular, the following characteristics are distinguished: 1) it is a legal entity under public law; 2) has a socially beneficial purpose; 3) is under the supervision (guardianship) of the state can be fully applied to the legal regulation of public benefit institutions, which also have the status of a legal entity, pursue a socially beneficial goal, and are under the supervision (guardianship) of the state. The article examines the legal nature of associations of persons of liberal professions (lawyers, attorneys, notaries, doctors, pharmacists, veterinarians, and others). The article examines the judicial practice of French courts on issues of compensation for damage caused by the activities of a state institution. The author examines and investigates issues of the legal regime of property of legal entities under public law.

Energy Diplomacy of Turkmenistan: Determining Factors and Legal Framework

Introduction. Energy diplomacy is an effective means of ensuring energy security (international and national) and, at the same time, an instrument for implementing the foreign energy policy of states. Since energy diplomacy is formed and implemented in the conditions of the state legal and international legal environment, the study of its legal component acquires not only theoretical, but also important practical significance. At the same time, the legal aspects of energy diplomacy (both in general and in relation to specific countries) have not yet been systematically developed in the legal literature, including in the science of international law. Based on the analysis of scientific and regulatory material, the article identifies the features of Turkmenistan's energy diplomacy and its legal support.Materials and methods. Within the framework of the study, the sources of international law related to the topic under consideration, political and legal policy documents and acts of national legislation of Turkmenistan are considered. The theoretical basis of the research was the scientific works of experts in the field of international law and energy law, as well as individual studies of the problem of energy diplomacy, including in relation to a chosen country. The methodological basis of the study was presented by general scientific and special legal methods.The results of the study. Factors of a resource-geographical nature, combined with factors of a political and legal nature (the status of Turkmenistan as a permanently neutral state) determine the originality of foreign energy policy and, significant from the point of view of international law, the features of Turkmenistan's energy diplomacy. The main strategic priority of Turkmenistan's energy diplomacy is to increase the export potential of oil and gas products and, in this regard, to create an extensive, modern and efficient infrastructure for transit and delivery of energy resources to foreign energy markets, comprehensive legal support for these processes. Reliance on the potential of multilateral diplomacy (primarily in the UN system) for the international legal legitimization of their national interests in the energy sector is combined with the development of bilateral international legal relations of energy cooperation on terms of mutual benefit, while respecting the basic principles of international law. The head of state plays a special role in the development and legal formalization of Turkmenistan's energy diplomacy. Embargoes, as well as unilateral restrictive measures, used in the practice of a number of States and individual integration associations, are not used as a means of economic pressure on other States. Special importance is attached to preventive diplomacy within the framework of the Central Asian region.Discussion and conclusion. Turkmenistan's energy diplomacy, being the main means of implementing its foreign energy policy, has an international and constitutional legal framework, in turn, including: the UN Charter and other fundamental international legal acts establishing the basic principles of international law and the provisions of the Constitution of Turkmenistan on adherence to these principles, taking into account its permanently neutral status; Resolutions The UN General Assembly and acts of the constitutional legislation of Turkmenistan relating to the legal formalization and implementation of its permanent neutral status; norms of international law and provisions of the constitutional legislation of Turkmenistan regulating the main forms of diplomatic activity; special principles of international energy law correlating with the norms of the constitutional law of Turkmenistan.

Разграничение компетенции арбитражных судов и судов общей юрисдикции по делам о признании и приведении в исполнение решений иностранных судов

The article is aimed at identifying the commercial courts and courts of general jurisdiction competence delimitation peculiarities in cases of issuing of issuing foreign judgments recognition and enforcement. Having reviewed the formation of the judicial systems of states and the competence of the courts in their structure specifics, the author concludes that the specialization of the foreign court that made the judgment can be taken into account in the matter of delimiting jurisdiction in the pending case. Analyzing the application of such a criterion for delimiting competence as the subject composition, the author reveals its ineffectiveness considering the participation of foreign persons in the case category, since the establishment of their status and rights to the subject of business activity may be associated with a considerable number of the foreign jurisdiction legal system features, defining their personal law. The article concludes that the main approach to delimiting competence should be to identify the legal relationship nature resolved by a foreign court.

A Gloss to the Judgement of the Supreme Court of 24 January 2020, III CZP 51/19, on Legal Nature of Benefits under Unit-Linked Life Insurance

The judgment discussed herein concerns the essential characteristics of the unit-linked life insurance, which play a major role for the insurance theory and practice. Given the complexity of this type of contact, the nature of benefits on the part of the insurance company gives rise to some questions in legal writings and in the jurisprudence, thus justifying the need for an in-depth analysis thereof.

Цифровизация местного самоуправления — «новая» демократия?

The article presents the author’s opinions on the impact of digital transformation of public administration in general and local government in particular on citizen participation in local community affairs. It is proposed to distinguish between “electronic democracy” and “electronic participation”, and the position is expressed that traditional and digital democracy have a common constitutional and legal nature, characterized by target and functional unity, but differ in technological methods of expressing will and communication. One of the key factors influencing the conditions for using digital technologies in the process of formation and activities of local government bodies is trust. Based on sociological research data, it was revealed that at the local level, ensuring trust has certain specifics, which are proposed to be interpreted through territorial identity.

Принцип добросовестности в муниципальных правоотношениях

The article is devoted to the study of the content and functions of the constitutional principle of good faith in municipal legal relations. Based on an analysis of the legal nature of local self-government, the status of participants in municipal legal relations and the legal positions of the Constitutional Court of the Russian Federation, the list of functions of the principle of good faith in the municipal sphere has been clarified. The thesis is substantiated that within the framework of municipal legal relations, the principle of good faith, in addition to specifying, complementing, correcting and limiting functions, also performs a compensatory function aimed at protecting the obviously weaker party in order to ensure constitutional requirements for the balance of rights and legitimate interests of the parties in legal relations. The manifestations of the specifying function of the principle of good faith in the sphere of municipal legal relations have been studied. The analysis of the functions of the principle of good faith and materials from law enforcement practice allowed us to formulate certain criteria for the good faith of local government bodies and officials.

Theoretical problems of understanding the essence of administrative prejudice in criminal law

Subject of research: the article considers the issue of the essence of administrative prejudice in the criminal law of Russia and Belarus. Purpose of research: to determine the meaning of administrative prejudice in criminal law and its place in the structure of the corpus delicti of a crime, as well as to correlate administrative prejudice and other institutes of criminal law. Methods and objects of research: in conducting the research the traditional methods of socio-legal and formal-dogmatic analysis were used: documentary, historical-legal, analytical, systematic, logical. Main results of research: the author considers administrative prejudice in the general context of crime and its substantive features, determines the place of administrative prejudice in the structure of the corpus delicti. Separately the question of criteria of criminalization of acts in criminal law, understanding of criminal law in a broad sense, differentiation of crime and offense is revealed. The legal nature of administrative prejudice, its connection with public danger and insignificance of a deed is shown, the main features of acts, which are characterized by signs of administrative prejudice, are disclosed. Special attention in the work is paid to the analysis of subjective signs of administrative prejudice, the establishment of recommendations on the application of the norms of criminal law in this part and qualification of unlawful acts. The basic provisions of the science of criminal law are given and specific measures to improve the current criminal legislation are proposed.

Ensuring a balance of interests of participants in the digital trade turnover

There is no uniformity of terminology in relation to digital (electronic) trade at the legislative level and in the doctrine. To solve the abovementioned problem, it is necessary to determine the legal nature of electronic commerce, its effective implementation in order to ensure a balance of interests of participants in digital trade in Russia. It is concluded that the process of digital trade development cannot fully develop and maximize the interests of participants due to the lack of an appropriate regulatory framework in this area of entrepreneurial activity.In the scientific work strategic directions for ensuring a balance of interests of participants in digital trade are identified, individual conclusions and proposals are formulated.

Ochrona informacyjna konsumenta w umowach ubezpieczenia

The article discusses issues related to consumer information protection in insurance contracts. The consumer’s right to information is explained and the legal nature of the insurer’s information obligation is presented. As a result of analyzing the information obligations constituting the basic instrument of consumer protection, appropriate conclusions were made regarding the implementation of these obligations. According to the author, the consumer information protection system is only partially implemented because the practice has shown shortcomings in its implementation. However, it must be agreed that the idea of protection through information is an appropriate assumption. Undoubtedly, the right direction is to increase the level of consumer information protection by clarifying regulations and such educational and information activities as recommendations issued by designated bodies.

Цифровые финансовые активы как технология фиксации имущественных требований и обмена данными о них

The authors explore the phenomenon of digital financial assets from the perspective of innovative investment technology. The dualism of legislative provisions interpreting the legal nature of these assets is criticized. The conclusion is substantiated that digital financial assets do not belong to objects of civil rights previously unknown to the Russian legal system, but represent property rights that are individualized in circulation by unique information codes. Being negotiable investment assets, they have a commodity-value nature; data on their ownership and transfer of rights to them are transmitted via Internet communications. Through digital financial assets, information technology has been implemented to record the property claims of participants in civil turnover and exchange data about them; they can submit mandatory requirements that are not legally prohibited from alienating them within the framework of assignable structures. Due to this innovative technology, participants in civil turnover receive the legal equivalent of a certain mandatory requirement in digital form, including a requirement fixed in equity securities, a requirement to transfer such securities, as well as corporate rights determined by participation in the capital of a non-public joint-stock company. The use of digital financial assets provides an opportunity for individuals and legal entities to build investment relationships with minimal intermediary participation, conduct financial transactions in a transparent manner, increase investment profitability, and simplify the search for counterparties.

Баланс бюджета – идеал или архаизм?

The article is aimed at assessing the legal principle of budget balance from the standpoint of the feasibility of achieving budget balance in practice. The preference of a balanced budget is substantiated from the point of view of several factors (economic, legal and psychological), and an attempt is made to identify potential risks of a legal, political and social nature in conditions of systematic budget imbalance. The article is based on a meta-subject approach to the concept of budget balance and proposes to proceed from the need for a comprehensive assessment of this phenomenon.

Право человеческого эмбриона и плода на биобезопасность: актуальные вопросы правопонимания и правового регулирования

The article examines topical issues of legal understanding and legal regulation of the right of the human embryo and fetus to biosafety. The idea of forming the legal status of the human embryo and fetus is put forward, similar to the status of a born child with fundamental rights to life, health, dignity and biosafety. The assessment of the established legal approaches to solving such problems as the legal nature of the human embryo and fetus, their right to protection of their natural biological existence and development; protecting embryos and fetuses from abuse of biotechnology and genetic engineering. The author considers it important in the modern legal regulation of the use of biotechnologies to find a balance between rationality and humanism, which allows treating the embryo and fetus as a person, in respect of which an appropriate system of legal protection is being built against modern biological threats and challenges caused, among other things, by the unregulated development of biotechnologies.

Сущность ревизионного производства в гражданском процессе ФРГ

The article is devoted to the essential features of revision proceedings in the German civil procedure. The author researches the correlation between the purposes of the court of revision to ensure uniformity of judicial practice and to protect the interests of private individuals. The close intertwining the two purposes and the mixed legal nature of revision proceedings are pointed out.

COMPARATIVE LEGAL ANALYSIS OF TAX MEASURES TAKEN IN CRISIS CONDITIONS

The world's economic and legal systems are facing a huge challenge to overcome the negative consequences imposed by recent social distortions. In 2020, what started as a health crisis quickly turned into an economic-social problem where an express response was required to ensure the functioning of social actors. This economic-social crisis was followed in a short period by new security crises with additional consequences on national systems. The response to the newly created conditions requires a multidisciplinary approach that will include measures of a health, economic, social, and security nature, adopted on the principles of legislation and expediency within the national legal systems. These measures have their own direct or indirect tax component. The purpose of this paper is to perform a legal analysis of the tax measures taken in the national systems. The scope of the research covers the member states and candidate countries for membership in the European Union. The focus is on the more recent crisis period, with particular emphasis on the COVID-19 period. The analysis primarily focuses on the legal element of the tax measures, the procedure of their implementation, and their legal nature. Also analyzed are the challenges that they have on the taxpayers and the administrative authority for their performance. The method of comparison in the paper is used to compare the similarities and differences between the tax measures in the different national systems and to detect the legal challenges imposed by the established crisis conditions. At the end, conclusions are given about the current situation and recommendations on how the establishment of tax systems should be in the future in crisis conditions.

Shareholder Loans: Fact or Fiction

Shareholder loans are often used as an alternative to traditional third-party loans or equity especially for private companies in various jurisdictions, including South Africa, to finance their business activities. These loans provide companies with greater flexibility to meet their financing needs, i.e., there is no need to seek external financing while offering shareholders a potentially profitable investment opportunity. However, the legal nature of shareholder loans could pose complex legal questions and this form of loans may not necessarily be as straightforward as it first appears. This article explores the legal framework and practical considerations surrounding shareholder loans in South Africa in small private companies, with a focus on developments in case law and their implications for companies and shareholders. Amongst other issues, the application of the principle of arbitrium boni viri to the interpretation and enforcement of these agreements will be discussed. The article aims to provide a critical analysis of the legal questions associated with shareholder loans in South Africa.

Administrative Law Challenges in Investor- State Arbitration

Attributing a wrongful act to a state in an investor-state arbitration is governed by public international law. However, understanding whether such an act was undertaken by an agent of a state or other entity exercising elements of governmental authority, figuring out the legal nature, effects, scope and legality of such acts and comprehending whether they were taken from the point of public authority requires application of domestic administrative (or wider public) law of the respondent state. Administrative law makes applied public international law provisions operational. In order to evaluate the occurrence and frequency of administrative law challenges in investment arbitration, the author carried out a survey amongst ICSID arbitrators. The results of the survey, presented in the paper, confirmed the hypotheses that it is not seldom in investor-state arbitrations to come across complicated administrative law issues, the resolution of which is a prerequisite for deciding an arbitration case; that a majority of arbitrators in investor-state arbitrations did not specialize in administrative law; and that currently applied mechanisms of handling such complex administrative law issues in practice are not satisfactory.

Pre-trial protocol in civil proceedings

The scientific article examines the legal nature of the pre-trial protocol in civil proceedings. The institution of judicial evidence was subject to change in connection with the latest reforms of the civil procedure legisla-tion. This has led to the emergence of new institutions and the pre-trial protocol in civil proceedings is such. Until 2022, the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC RK) did not have di-rect legal regulation of this institution, and accordingly, no theoretical studies were conducted on this issue. In civil proceedings, the prototype of the institute of pre-trial protocol was a foreign legal institution, such as the disclosure of evidence and the exchange of arguments, characteristic of English and American procedural law. The practical necessity of many aspects of such a phenomenon as the pre-trial protocol, the incomplete-ness of theoretical developments and the need to improve legislation determined the relevance of the topic of the scientific article. It should be recognized that the mechanism for drawing up a pre-trial protocol, in fact, designed to ensure the implementation of the principles of competition and equality of the parties, was not sufficiently enshrined in the civil procedural legislation of the Republic of Kazakhstan. At the same time, consistent legislative regulation of the activities of bodies for the disclosure of evidence in civil proceedings is required. The institution of pre-trial protocol in civil proceedings requires regulation and integration at the legislative level, since the mechanism of conclusion in the current CPC of the Republic of Kazakhstan has not been fully investigated.

On the issue of the effectiveness of the civil law method in the regulation of health protection relations

The subject of the study is the rights of citizens to health protection, as well as the possibility of their transformation in the direction of strengthening the legal nature of these relations. In the context of the dominance of the sectoral approach in law, the author develops ideas about subjective law as an effective regulator of patient behavior. The opinion is expressed that the responsibility of the subject's independent choice can give a new impetus to improving the level of quality indicators of medical care, ensuring the timeliness, qualification and comprehensiveness of examinations. An attempt has been made to shift the focus in the process of streamlining relations from the subject of legal regulation to methods. New opportunities have been identified to increase the level of the legal nature of court decisions that can take into account the objective need to expand the scope of private law (civil) ways of influencing the patient on the medical process. The dialectical method has become the main research method. The conditions for improving medical care are revealed, taking into account the differences between public law and civil law regulatory methods in solving problems of law enforcement practice. The scientific novelty is that the examples of legal practice have provided new knowledge necessary for the development of existing doctrinal approaches in legal science. The limitations of the sectoral approach in law, due to the high degree of dynamism of society, are convincingly argued. It has been established that orientation to the subject of legal regulation, as an unconditionally dominant factor in choosing a strategy and tactics for streamlining relations, does not always ensure the completeness of the legal nature of judicial acts. The emphasis of legal regulation in health protection is focused on the priority use of public law (or "organizing") methods that guarantee the mass provision of medical care designed for everyone. The possibility of providing quality indicators of care to a specific patient with special health characteristics and conditions for receiving it is still secondary. It is necessary to actively apply civil law methods of protecting the right to health protection, while skillfully using the resource potential of the law.