Legal Novelties Research Articles

In Pursuit of Justice: The Evolution of Social Work in Criminal Supervision

Social work punishment is a form of renewal of basic criminal punishment in Indonesia. Therefore, it is important to regulate the mechanism of social punishment supervision so that the implementation of social work punishment is in accordance with the objectives of punishment in Indonesia, one of which is to create a sense of security in the community. As a form of legal novelty, currently Indonesia does not have legal regulations governing the mechanism of supervision of social work punishment. The policy of social work criminal supervision greatly affects the legal framework in realizing justice. The purpose of this research is to explain the importance of legal reform in the supervision of criminal social work and provide ideas on the ideal model for criminal social work supervision in Indonesia. The method used in this research is normative juridical, by examining the application of rules or norms in positive law with a statutory approach, historical approach, and conceptual approach. The result of this research is that legal reform is needed so that Indonesia has rules governing the implementation of social work punishment in detail so that it can create justice and benefit in society. The ideal model of supervision of social work punishment in ius constituendum criminal law reform, namely by formulating a direct supervision model and using a global positioning system (GPS) by Community Supervisors and coordinating with the Prosecutor and the agency where the convict works.

Self-Regulatory Organizations in Penal Institutions: Experience of Past Years and Legal Novelties in the Conditions of the Establishment of Penitentiary Probation

Self-Regulatory Organizations in Penal Institutions: Experience of Past Years and Legal Novelties in the Conditions of the Establishment of Penitentiary Probation

Проблема определения места совместного завещания супругов и наследственного договора в системе завещательных распоряжений

This article examines the place of legal novelties of Russian inheritance law in the system of testamentary dispositions: the inheritance contract and the joint will of spouses. The author explores the problems of the correlation of testamentary dispositions, their priority in the framework of law enforcement practice by notaries. The author raises the question of the expediency of changing the system of testamentary dispositions, changing the structure of regulatory regulation in Part 3 of the Civil Code of the Russian Federation. The author comes to conclusions concerning the flexibility of the approach to the system of testamentary dispositions in domestic inheritance law, conducts a comparative legal analysis with German inheritance law and identifies a potential vector of law enforcement problems in notary practice within the framework of the implementation of the will of citizens in case of death.

CONSTITUTIONAL AND LEGAL CONSOLIDATION OF NATIONAL OBJECTIVES AND PRIORITIES IN THE SOCIAL POLICY OF THE RUSSIAN FEDERATION

The purpose of the study is to identify the interdependency between the constitutional reform and changes in social institutions and to propose directions for the development of new constitutional provisions in the legislation of the Russian Federation. Materials and methods. The methodological instrumentarium is chosen taking into account the specific goals of the work. The dialectical-materialistic method of cognition made it possible to study the subject in development, in interrelation of all its individual manifestations and in interaction with related phenomena, to substantiate the advantages and disadvantages of various approaches to solving this issue. The methods of formal logic: description, comparison, analysis and synthesis made it possible to reveal and characterize in detail the legal, moral, ethical and other aspects of constitutional and legal transformations. The use of specific scientific methods of cognition: comparative legal, formal legal, statistical, structural and functional – made it possible to explore the problem under consideration in interrelations and interdependence, to identify certain trends, to make generalizations and conclusions. Study results. The relevance of the research topic is determined by the need to legally consolidate traditional Russian values and worldview guidelines, to preserve and pass the Russian civilizational code for future generations in conditions of a changing world order and defending the idea of a multipolar world. The Constitution of the Russian Federation, as amended in 2020, became the result of transformations in social institutions and the program for the development of the Russian society and the state for the future. The constitutional doctrine is evaluated in retrospect, the prerequisites for the 2020 constitutional reform are assessed, and its first results are analyzed. New constitutional and legal norms and their development in the legislation of the Russian Federation are analyzed, comparative legal characteristics of individual constitutional and legal novelties are given, and their importance in the system of constitutional and legal regulation of public relations is substantiated. Conclusions. The author comes to the conclusion about the public demand for the constitutional consolidation of institutional changes that have taken place and consolidated in the Russian society in the last three decades of constitutional development.

Educational inclusion or inequality? Opportunities and barriers for refugees with a temporary suspension of deportation for the purpose of training in the German vocational education and training system

ABSTRACT This article examines the legal novelty of the so-called ‘Ausbildungsduldung’ (temporary suspension of deportation for the purpose of training) in Germany. Since research on this topic is still sparse, the current article analyses the impact of toleration status on training trajectories of young refugees. These trajectories are strongly linked to the completion of vocational training and thus successful integration achievements. The impact of a temporary suspension of deportation for the purpose of training on educational trajectories was assessed using interviews. The results indicate that refugees’ training is hampered by numerous challenges and stressors. Moreover, refugees with a temporary suspension of deportation for the purpose of training are subjected to further restrictions resulting from their limited juridical capital. Hence, refugees’ tolerated status might directly influence or even impede numerous levels of the training process. Thus, refugees with a tolerated status complete their training under unequal social and legal conditions.

The court as a subject of judicial law-making in the civil justice system of Ukraine

The practice of scientific research in the field of civil procedural law shows that scientists quite often direct their research to substantive procedural legal institutions, paying little attention to the seemingly invisible work of judges, who perform not only organizational functions aimed at researching evidence and evaluating it, but also engage in law enforcement activities with the aim of achieving accuracy in the regulation of disputed relations by legal norms. This question is one of the most important and at the same time the most difficult in justice. This work is dedicated to this issue. Today, the law enforcement practice of courts of general jurisdiction more and more often goes beyond the mechanical enforcement of legal norms, which has always been characteristic of the positivist theory of law. Continental law, which is based on this theory, presupposes, and hence the stability of statutory law, which covers all legislative acts without exception. Such stability was observed in Europe from the 18th century to the end of the first half of the 20th century. Since that time, social relations caused by the rapid development of science, technology, information technologies, globalization of the economy, migration processes began to significantly outpace the law-making capabilities of the legislator, who objectively does not have time to regulate more and more new relations that arise in society every day. Thus, justice both in European countries and in our country is more and more often faced with the fact that certain social relations are not regulated by legal norms or are regulated incompletely, vaguely or inconsistently. This means that a number of legislative acts have some or other legislative gaps, which the legislator has no real opportunity to promptly eliminate. Thus, law enforcement courts begin to resort to judicial law-making, thereby overcoming existing legislative gaps.The article examines the mechanism of legal interpretation and the peculiarities of establishing legal analogies, during which a certain level of legal novelty occurs in such processes, which characterizes judicial law-making from the point of view of judicial practice.

Fake nature of information: on the question of the limits of the competence of expert linguist

The introduction of legal novelties related to the dissemination of false (fake) information raises the question of the role of an expert linguist in such cases, since we are talking about speech offences. Based on the methodological materials of the Ministry of Justice of the Russian Federation, as well as on her own expert practice, the author of the article determines the limits of the competence of an expert linguist, but at the same time demonstrates the possibility of expanding them communicatively and legally. Purpose is to determine the limits of competence of an expert linguist in cases related to the dissemination of false (fake) information, to point out the communicatively and legally justified possibility of their expansion. Methods include empirical methods of description, interpretation; theoretical methods of formal and dialectical logic. Results: 1) the limits of competence of an expert-linguist in cases related to the dissemination of false (fake) information are determined; 2) possibilities for expanding the limits of the competence of an expert linguist demonstrated communicative and legal justification.

Constancy of the property rights and the seizure of assets and corporate rights of russian companies: legal regulation in Ukraine and the experience of EU countries

In the process of modern state-building processes, the European integration of Ukraine, as well as negative phenomena unfolding as a result of Russia’s armed aggression, the right to property, as one of the fundamental constitutional rights, is subject to restrictions and transformation. Constitutional scholars agree on the priority of improving the system of guaranteeing the inviolability of property rights, taking into account the balance of national interests. The article analyses the legal novelty of the seizure of assets and corporate rights of Russian companies and natural persons in Ukraine through the prism of the institute of the property rights in national law and the system of international human rights law. The general shortcomings of the existing legal construction are examined, as well as the existing practice of its application as a practical measure.
 The purpose of the research is to clarify the content of the guarantee (principle) of the inviolability of property rights, as they are enshrined in the Basic Laws of Ukraine, Poland and Germany. The methodological basis of the research consists of general and special legal methods of scientific knowledge, namely: system-structural method, comparison method and logical-legal method. The results. The article analyzes the constitutional guarantees of the inviolability of property rights on the example of Ukraine and EU countries. It was established that the provisions of the Basic Laws, which establish standards in the field of property rights, have a heterogeneous and unsystematized presentation. The structure of “seizure” of corporate rights is compared with the criminal seizure of property and the civil construction of alienation of property rights. Based on the practice of the European countries and USA in the potential seizure of assets of Russian oligarchs, it is proposed to replace the existing mechanism, with the criminalization of the violation of the sanction regime imposed on Russian assets within Ukraine, with simultaneous introduction of the institution of urgent use of property for socially significant purposes, which will allow it to be used today, in order to ensure the use of the property for public purposes, and will confirm the determination of the Ukrainian people in the course of building a European, legal state, which comply with fundamental human rights, is determined to the principle of rule of law, legality, and will ensure its contribution in increasing the country’s image and investment attractiveness.

Биологическая безопасность в России: этические проблемы

The purpose of the work was to consider in the article certain features of ensuring biological safety in the Russian Federation, legal novelties in this area, general trends, analysis of possible identifi ed problems. With the help of general philosophical methods, as well as with the help of the formal legal method, the ethical aspect of ensuring biological safety in the context of countering the COVID-19 pandemic was investigated. The general characteristics of bioethics and its principles are given, individual political decisions and regulations are analyzed in the context of these principles. According to the results of the study, it is concluded that there are problems in compliance with the principles of bioethics during the period of countering COVID-19, these problems are listed and commented on.

Legal Protection for Unregistered Clothing Design on Marketplace: Comparison Between the Indonesian and the UK Law

The industrial design protection system in Indonesia uses registration requirements, without registration, there is no protection. This is in contrast to the UK’s existing industrial design protection system, where the UK implements two protection systems, namely the registered design right or unregistered design right. This unregistered protection system is used in products that do not last long on the market such as fashion products and as an alternative for companies to test design prospects on the market. Unregistered protection systems are also used as design protection alternatives to prevent copying or plagiarizing of designs that do not yet have registration numbers. This article will discuss the following issues: 1) The legal protection of Korean pop idol clothing designs is reviewed based on Indonesian and English laws; and 2) The urgency of legal novelty in the industrial design law in Indonesia. In this study, the legal research method used is normative legal research with an approach through statutory regulations, a conceptual approach, and a comparative approach. The legal materials used are primary legal materials and secondary legal materials. The conclusion is that the industrial design protection system in Indonesia still has to go through the registration process, this is irrelevant to products or goods that cannot last long in the market because trends change easily. This is different from that in the UK where it implements an unregistered design right system where industrial design rights are obtained automatically.

Alternative Dispute Resolution of Insurance Disputes According to Law on Consumer Protection

Introduction of mandatory mediation for professionals is one of the most important legal novelties of Law on consumer protection (2021). But the range of above-mentioned change could be assessed only when it is borne in mind that there are areas in which the sector governing alternative dispute resolution does not apply. Financial services are one of them. Central bank of Serbia passed a bylaw which regulated it in more details alternative dispute resolution procedures in the field of insurance. The author is dealing with the issue of justification of exemption of insurance sector from mandatory mediation. Whether such a solution will contribute to the improvement of consumer protection in the mediation process? Or the insurance sector will continue to languish in the dark? Whether insurance is really so „special“ that it deserves the privilege of exemption? Or it is in fact discrimination of insurance, which in the long run affects consumers of insurance services.

РАЗВИТИЕ РОССИЙСКОГО ОБЯЗАТЕЛЬСТВЕННОГО ПРАВА В ПРОЕКТЕ ГРАЖДАНСКОГО УЛОЖЕНИЯ 1905 г.

The author analyzes the level of development of the civil legislation on the example of the law of obligations by means of its comparative analysis with the civil legislation in force in Russia in 1914 – the Code of Civil Laws. Examples of legal novelty in the articles of the draft Civil Code, indicating the development of the Russian law of obligations, are considered. The conclusion is made that the civil legislation developed in the draft was, in quantitative and qualitative terms, a significant step forward, bringing Russian law of obligations closer to European law.

Regulation of Waste Management and Elimination of Accumulated Damage in the Countries of the Eurasian Economic Union

The article has been devoted to the analysis of waste legislation and the elimination of accumulated damage, as well as the practice of applying such legislation in the countries of the Eurasian Economic Union. The article considers the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal of 1989, to which all the Eurasian Economic Union member states are currently parties. The question of the impact of the Basel Convention on their national legislation has been raised. The legislative gaps and shortcomings of the statutory regulation of waste management, as well as the elimination of accumulated damage in each of the Eurasian Economic Union countries, have been identified. The most successful legal novelties in this area of relations have been identified. Recommendations on their borrowing by other Eurasian Economic Union countries have been formulated. Significant problems have been identified in the relevant Russian legislation, as well as in the practice of its application. Proposals for their elimination have been formulated. Another identified problem, which is extremely relevant for the Eurasian Economic Union countries – is the definition of entities responsible for the elimination of accumulated damage on land plots, the ownership of which is not delimited. In such cases, it has been proposed to consider local self-government bodies responsible for the elimination of accumulated damage in such territories.

EVOLUTION OF LEGAL REGULATION OF SERVICES OF GENERAL ECONOMIC INTEREST IN UKRAINE

The purpose of the article is to show in the historical development the formation of the institute of services of general economic interest (SGEI) in the Ukrainian legal tradition under the influence of European integration strategic actions. One of such actions is the harmonization of Ukrainian legislation with the law of the European Union. SGEI, in the context of another "legal novelty" for Ukraine as state aid as part of competition law, have changed the existing approaches to the distribution of already known subsidies and grants. A set of new rules forced the state authorities to adhere to clear rules, failure to comply with which is fraught with real sanctions. In the course of the study, it was revealed that the institute of SGEI has already found its reflection and practice in the Ukrainian legal system. But at the same time, all norms of legislation on services of general economic interest do not correspond to the practice of the EU, and legislative changes are necessary to launch reforms in this area.

The Application of National Law and Composite Procedures in the Single Supervisory Mechanism. Did the Court of Justice of the EU find a New Van Gend en Loos?

The Single Supervisory Mechanism (SSM) represents the most recent legal novelty in EU law. The SSM has created a hybrid dual administration formed by both national and European authorities. The application of national law and composite procedures make it more difficult to distinguish, in practice, which courts should be responsible for evaluating the legality of the measures adopted. This article attempts to analyse the existence of a gap in the current system of legal protection, and suggests some proposals to continue to guarantee access to courts and a complete and coherent system of judicial remedies under EU law. A possible extension of the approach used by the Court of Justice in the Rimšēvičs case could be considered in areas where there is a less marked distinction between EU and national law, such as in the SSM. Following this principle, the Court should be able to directly annul any national act that contravenes EU law.

PROTECTING THE CHILD VICTIM IN SEXUAL OFFENCES: IS THERE A NEED FOR SEPARATE LEGAL REPRESENTATION?

The number of children being sexually violated on a daily basis continues to escalate against a backdrop of a dearth in the conviction rate of their attackers. This is notwithstanding global efforts being made to protect children from the harrowing experience of being sexually violated. Creative measures such as the introduction of innovative child legislation have been largely neutralized by the inability of the criminal justice system to complement the child’s healing process. The gulf between policy and practice has given rise to a lack of protection in respect of the rights of children. In this paper, we seek to highlight the gaps in the South African criminaljustice system when it comes to safeguarding the interests of the minor complainant during the criminal process. We analyse key legislative instruments which purport to protect the minor victim. The analysis is aimed at determining whether or not the specified key provisions are in conflict with the Constitution. The introduction of separate legal representatives for child complainants is evaluated as an option in improving the plight of young child victims. The paper then concludes on an optimistic note by boldly opining that in line with legal developments in other international jurisdictions, the South African criminal justice system can accommodate the legal novelty of introducing separate legal representation for child victims.

CURRENT TRENDS IN THE STUDY, DEVELOPMENT AND MANAGEMENT OF ETHNIC CONFLICTS

The purpose of this article is to try to identify and analyze problematic issues of the methodology and methodology for studying ethno-national conflict, to characterize political and legal novelties in the field of regulation of ethno-national conflict in Russia and to outline the boundaries and formulate the characteristic features and signs of a “new normality” in the course of the ongoing development of the coronavirus pandemic, will in the long term be a determining factor for the further evolution of ethno-national conflicts, their study and management. For this, a special methodology was formulated, which includes the principles of systemic, theoretical-cognitive, institutional, instrumental and interdisciplinary approaches, mediated by the accepted in social science ideas about the relationship and interaction of subjective and objective factors in social processes with the relative independence of the subject. She allowed to achieve the following results: With regard to the methodological problems of theoretical and applied study of the ethno-national, a complex paradigm for the study of ethno-national conflicts was formed and it was established that in the modern English-language discourse there is a transition from the study of conflicts as phenomena in the system of ethno-national relations to their qualification as inter-religious; political novelties in the system of national relations of the modern Russian state are analyzed and characteristics of the current law enforcement in the system of ethno-national relations in Russia are given; the characteristic of the “new normalcy”, which is forming today in the course of the development of the COVID-19 pandemic, is given, conclusions are drawn regarding the crisis and post-crisis transformation of ethno-national conflicts and approaches to their resolution in the post-pandemic era. The conclusions of the work are as follows: ethno-national conflicts are an objectively cognizable phenomenon; their scientific understanding and analysis require the formation of an integrated (polyparadigmatic) approach. Political novelties in the system of interethnic relations in modern Russia (National Security Strategy) indicate that the country's leadership pays great attention to these issues. At the same time, the law enforcement practice, being, on the one hand, established in the criminal and administrative spheres in the civil law sphere, shows us the ill-considered actions of some subjects. With regard to ethno-national conflicts in the course of a pandemic and post-pandemic new normalcy, it should be stated that they will not disappear anywhere and, on the contrary, may acquire new forms, which will have to be promptly and adequately responded to.

Nationalist Mobilization, Ethno-Religious Contention, and Legal Innovation in a Stateless Nation: Explaining Catalonia’s 2009 “Law on Centers of Worship”

This article analyzes the development and framing of Catalonia’s “Law on Centers of Worship”, an innovative law dedicated exclusively to the regulation of religious temples that was passed by the regional Parliament in 2009. The law was a legal novelty in Spain, as well as in Europe, where regulations pertaining to places of worship are typically folded into regional or municipal laws and ordinances dealing with zoning and construction. My analysis highlights how the law aimed not only to address the challenges generated by the proliferation of places of worship serving religious minorities, but also to legally reinforce and symbolically affirm Catalonia’s political autonomy and cultural distinctiveness vis-à-vis Spain. I place particular emphasis on how the temporal confluence of heightened nationalist mobilization, on the one hand, and tensions surrounding ethno-religious diversification, on the other, contributed to the development of a legal innovation that integrated the governance of religious diversity within the broader nation-building project. This article’s findings illustrate the role of historical timing and conjunctural causality in shaping the dynamic nexus between religion, law, and politics.

“We Refuse to be Silenced”: Writing a Fallist Politics into the Criminalization of Racist Hate Speech in South Africa

Recently, the South African Department of Justice and Constitutional Development opened the long-awaited Prevention and Combating of Hate Crimes and Hate Speech Bill up for public commentary. The Bill introduces, amongst other legal novelties, the criminalization of racist hate speech. While South Africa's civil society has been preoccupied with the Bill's potential “chilling” effect on the constitutional guarantee of freedom of expression, few have critiqued the Bill for its bypassing of the complex matrix between race, racism, and power in a post-apartheid South Africa that continues to wrestle coloniality, as has been articulated by the Fallist Student Movement. In this paper, I borrow from the Fallist movement's dense archive to offer a problematization of the Bill for failing to provide a useful response to racist hate speech. I argue that the Bill ignores the political, historical, and structural dimensions of racism in post-apartheid South Africa. In doing so, I hope to offer a challenge to the drafters of the Bill to desert its apolitical ahistorical and acontextual response to racist hate and to be bold enough to construct a version that is more in sync with contemporary calls for decolonization.

Роль товариществ собственников жилья и жилищных кооперативов в свете новаций законодательства

Роль товариществ собственников жилья и жилищных кооперативов в свете новаций законодательства