Legal Position Research Articles

Review of Criminal Law Against Illegal Broadcasting Actions on Paid Football Shows

This study aims to analyze criminal law arrangements in handling illegal broadcasting of paid football shows and to analyze the legal position of illegal broadcast service providers on paid football shows based on criminal law provisions. This type of research that is used normative juridical method by examining the application of positive legal norms. Which consists of normative legal research by using methods of obtaining and analyzing secondary data and empirical legal research methods, namely by obtaining and analyzing primary data by conducting interviews with relevant sources. Then analyzed qualitatively and arranged systematically. The results of this study show that, 1) criminal law arrangements in handling illegal broadcasting of paid football broadcasts have been regulated in statutory provisions, including Law no. 28 of 2014 concerning Copyright, Law No. 19 of 2016 concerning Amendments to Law No. 11 of 2008 concerning Information and Electronic Transactions, as well as the values ​​contained in Law no. 32 of 2002 concerning Broadcasting. Even though it has been regulated, there are still many violations that occur.

Classification of creditors in bankruptcy case

The article is devoted to the study of the classification of creditors in the case of bankruptcy. Creditors are one of the main participants in the bankruptcy case, because the satisfaction of their monetary claims against the debtor is one of the goals of the bankruptcy process. At the same time, the legal status of creditors in a bankruptcy case is not homogeneous, but depends on many factors – the moment of filing claims against the debtor, the time of obligations, the security of their monetary claims, etc. In this regard, it is urgent to carry out the classification of creditors in the case of bankruptcy. The purpose of the article is to classify creditors in a bankruptcy case in order to determine the peculiarities of the legal position of each group of creditors. Creditors provided for by the Code of Ukraine on Bankruptcy Procedures are divided into: secured and unsecured creditors based on the availability of collateral; at the moment of the requirements – competitive and current. The peculiarities of the legal position of the initiating creditor in the case of bankruptcy of a legal entity are disclosed. It is emphasized that the initiating creditor bears an additional burden regarding the payment of the court fee (which, by the way, the debtor does not pay when applying to the court with a similar statement) and regarding the advance payment of the arbitration manager’s fee. At the same time, even after paying these funds, the initiating creditor does not always receive a result in the form of the opening of proceedings in the case. Since the debtor’s disagreement with the creditor’s demands may indicate a dispute about the right, and this is a reason for refusing to open proceedings. According to the results of the research, the author emphasized that the opening of bankruptcy proceedings significantly affects the debtor, his property, and his creditors. It is proposed to single out such a group of creditors as overdue creditors who have had their claims extended. These creditors belong to forced late creditors, however, unlike other late creditors, they enjoy the rights of those creditors who declared their claims on time.

The Concept of Digital Property in the Context of Doctrinal Disputes

The article analyzes in detail the points of view expressed in the doctrine on the legal nature of digital financial assets, digital currency, as well as critical comments regarding the category of “digital property” proposed by the author, which the author substantiated in a number of his other works. In the work, the author argues the legal position that digital financial assets and digital currency are independent objects of civil law, included in the group called “digital property.” The opponents’ arguments that digital financial assets cannot be considered as an independent object of civil law, since they are digitized securities — an object long known to civil law — are examined in detail. The author proves that the tokenization of “paper rights” has seriously changed their legal regime, which gives grounds for the conclusion that tokens for virtual securities (digital financial assets) are currently an independent object of civil law. Digital currency and digital financial assets are part of digital property. Digital property can become the subject of relative and absolute digital rights.

The Application of Dayak Customary Law In West Kalimantan Towards Fulfilling A Sense of Justice For Victims (Case Study of Indecent Acts)

The position of customary law in the legal system in Indonesia has the same constitutional position as the legal position in general that applies in the life of the state in Indonesia. However, it must be emphasized that there is a difference between customary law and applicable law in general, namely the aspect of its enactment and formation. The applicability of customary law only applies to Indonesians and from the aspect of its form, customary law is generally not written. The method in this research uses empirical legal research. Research approaches using an empirical legal approach include a legal sociology approach, a legal psychology approach and a legal anthropology approach. Techniques for collecting legal materials through identification, inventory of positive legal rules, literature, books, journals, other sources of legal materials. Legal material analysis techniques use legal interpretation (interpretation), grammatical interpretation, systematic interpretation and legal construction methods. The results of the research and discussion show that the application of Kalimantan Dayak customary punishment is carried out by bringing together the two parties who have a conflict, then these parties are seated with traditional heads, tribal chiefs and people who are considered to understand customary law. After being seated together, a discussion was held regarding the customary offense that had occurred, whether a customary offense had indeed occurred or not. If it is known and proven that a customary offense has occurred, then the contents of the victim's demands against the perpetrator will be discussed, hereinafter referred to as customary sanctions.

On judicial practice in the field of intellectual property

This article is devoted to the analysis of the legal positions of the Constitutional Court of the Russian Federation, formulated in its regular decisions in the field of intellectual property regarding the qualification of other forms of unfair competition, the administrative-judicial procedure for the protection of intellectual rights, the procedure for paying remuneration to authors of service objects of patent rights. It should be assumed that certain legal positions of the Court are not formulated quite correctly. In addition, it is concluded that certain legal positions contain rules of law, although of a temporary nature, the adoption of which is not within the competence of the Constitutional Court of the Russian Federation.

Chinese Professional Consumers at 30: The Rise and Impending Fall

Abstract This paper introduces a unique phenomenon with a distinctive Chinese regulatory approach. Since 1994, the Consumer Rights Protection Law has afforded consumers the right to seek punitive damages in instances of fraudulent practices. This has given rise to a special profession with Chinese characteristics: professional consumers. Their status as enigmatic figures is a consequence of the fluctuating stance of public authorities. Thirty years of consistent inconsistency has been a rarity in China’s legislative history. The year 2024 marks the 30th anniversary of the enactment of the CRPL, China’s Consumer Rights Protection Law and the birth of its implementing regulation. It is an opportune moment to reassess the regulatory system that enabled this group and reconstruct it for the future. This paper presents a comprehensive regulatory review of the emergence, growth, and projected decline of professional consumers. It examines the reasons for this long-standing regulatory inconsistency through a detailed investigation of China’s legal system. It concludes by projecting two upcoming legal positions. The first is the transformation under the state’s co-governance strategy. The second is the displacement by procuratorial public interest litigation. Although seemingly contradictory, these two positions exemplify a distinctive Chinese approach to the co-governance strategy, which is characterized by the preponderance of public authority.

Reconstruction of the Position and Authority of the Honorary Council of General Election Organizers (DKPP) as a QuasiEthical Court of Election Organizers

The Honorary Council of Election Organizers (DKPP) is an institution responsible for resolving ethical violations committed by election organizers, established under the law as part of Indonesia’s election system. As a state institution, the DKPP holds the authority to examine, summon, sanction, and adjudicate such violations through a court-like process, which includes witness examination, expert testimony, verification of evidence, and the issuance of rulings. Notably, DKPP decisions are final and materially binding. The quasi-judicial nature of its proceedings, combined with the finality of its decisions, places the DKPP in a unique legal position, often referred to as a "quasi-public court." In the Constitutional Court's interpretation, the DKPP functions as an integral part of the election administration alongside the General Election Commission (KPU) and the Election Supervisory Body (Bawaslu), forming a comprehensive election organizing body. This study explores the legal status and authority of the DKPP, particularly in its role as a quasi-public court. Through normative legal research with a descriptive and prescriptive approach, using legislative, conceptual, historical, and comparative methods, the study concludes that the DKPP, as an independent auxiliary state organ, functions similarly to a general court in enforcing the code of ethics for election organizers. The final and binding nature of its decisions has significant legal implications, reinforcing the DKPP's role in maintaining electoral integrity within Indonesia’s constitutional framework.

REPRESENTATION OF THE STATE’S INTERESTS IN COURT AS A FUNCTION OF THE PUBLIC PROSECUTOR’S OFFICE: FEATURES OF LEGISLATIVE REGULATIONS

The article highlights some features of the legislative regulation the representation of the state’s interests in court by the public prosecutor’s office, the peculiarity of which periodically become the objects of review by the Constitutional Court of Ukraine, initiated by interested parties, who in current conditions demand revision of such regulation for its compliance with the principles of the rule of law. The purpose of the article is to highlight the peculiarities of the legislative regulation of the representative function of the prosecutor’s office through the prism of establishing its compliance with European standards of the prosecutor’s office activities in the researched field, the method of legislative determination of the scope of the representation of the state’s interests by the prosecutor’s office, the legitimate purpose of adopting legislative provisions on prosecutorial representation, ensuring the implementation of the representation of state’s interests in court by the prosecutor’s office in exceptional cases, the expediency of introducing changes to the legally defined mechanism of implementation of the representative function by the prosecutor’s office regarding the substantiation by the prosecutor of the grounds for such activities, as well as highlighting one’s own vision regarding its further development. It is stated that the constitutional and legal regulation of the prosecutor’s office function of representing the interests of the State in court is characterized by a number of legal categories which are evaluative in nature, and which, given the lack of their legislative definition, are understood in the legal positions of the Constitutional Court of Ukraine and in the practice of the relevant entities applying law, mainly, judicial and prosecutorial practice. It is established that the updated constitutional and legal status of the prosecutor’s office in Ukraine in terms of determining the scope of its powers in activities outside the criminal justice sphere through the prism of the function of representing the State’s interests in court in exceptional cases and in accordance with the procedure established by law embodies the European standards of the prosecutor’s office, whose defining mission in this area is to represent general or public interests, protect human rights and fundamental freedoms, and ensure the rule of law, which corresponds to the legally defined purpose of public prosecutor’s office in Ukraine. It is proved that the method of constitutional definition of exceptional cases of the prosecutor’s office’s function of representation of the State’s interests in court indicates that the legislator does not intend to limit their legislative consolidation to the limits of a specific special law and does not exclude the possibility of their consolidation in the provisions of other laws, since the list of these cases cannot be determined in advance, but should be determined in accordance with the interests which require protection in a particular historical period. It is proposed to apply a balanced approach to introducing changes to the legislatively defined mechanism for exercising the representative function by the prosecutor’s office with due regard for the achievements of judicial and prosecutorial practice of its application, so as not to make it impossible to protect the interests of the State by means of prosecutorial representation.

Contested Grounds and Missing Sticks: Assessing the Legality of India’s Surgical Strikes in Pakistan

The article wades into the contested issue of the legality of India’s surgical strikes in Pakistan in the last decade. While legal scholars have deliberated on the legality of India’s actions, international relations (IR) have remained silent, thereby underlining the chasm between IR and international law when it comes to international issues. This article evaluates the competing claims made by legal scholars by engaging with developments in international law pertaining to the use of force as an ‘outsider’ approaching the issue from a fresh vantage point. It finds the argument regarding the weakness of India’s legal position to be more convincing. However,it does not fully subscribe to the reasons attributed for the weakness. Drawing on insights from IR, it highlights the salience of political considerations and incentive structures. The article argues that a comprehensive view that includes legal and political dimensions needs to be taken to appreciate India’s stand regarding the surgical strikes.

Exemption from serving a sentence with probation for pregnant women and women with children under the age of seven as a means of probation: specific problems of application practice

The article highlights certain problems of the judicial practice of applying the institution of exemption from serving a sentence with probation for pregnant women and women with children under the age of seven as a means of probation. It was established that, unlike the general rule on exemption from serving a sentence with probation (Article 75 of the CC of Ukraine), the provisions of Article 79 of the CC of Ukraine are mainly focused not on the possibility of correcting a person without isolating him from society, but first, on ensuring the interests of the child. Courts adhere to the same position when, releasing those specified in part 1 of Article 79 of the CC of Ukraine, persons from serving a sentence with probation, do not motivate the possibility of correction of the specified category without isolation from society. It was found that in many cases the courts also do not consider the interests of the child when deciding provided for in Article 79 of the CC of Ukraine. Based on the analysis of law enforcement practice, the author concluded that courts follow the trend of “automatic” appointment of the institute under investigation, given the fact that the guilty party is pregnant or has a dependent child under the age of seven. The correctness of the legal position of the Supreme Court is emphasized, according to which the “automatic” application by the courts of the norm of Article 79 of the CC of Ukraine on the basis of the offender belonging to the category of persons provided for by the specified norm, is inadmissible, since its application must be preceded by an assessment of the person of the offender, the possibility of her correction without isolation from society and ensuring the interests of the child. It has been established that by fixing the provisions regarding the probationary period, which is set for those released from serving a probationary sentence under Article 79 of the CC of Ukraine, the legislator did not specify its minimum duration, constructing the relevant norm in such a way that it could be individualized depending on the age of the convicted child. At the same time, the courts in their decisions do not always indicate the specific age of the child, which makes it impossible not only to correctly determine the time limits of the examination period, but also to apply the investigated institute in general. The author found that some courts incorrectly apply the norm of part 1 of Article 79 of the CC of Ukraine regarding the determination of the probationary period, as they establish a probationary period that exceeds the time during which a woman can be dismissed from work in connection with pregnancy, childbirth and before the child reaches the age of seven. It was concluded that the correct practice of applying the provisions of Article 79 of the CC of Ukraine, means of probation are not only the determination of the state of pregnancy or the presence of a minor child in the convicted person and the determination of the probation period until the latter reaches the age of seven, but also taking into account the circumstances of the committed criminal offense, the guilty party and the interests of the child.

Removing the arrests unlawfully seized by the state or private enforcement officer on the vehicle that belongs to one who is not a debtor under enforcement proceedings

To date, there is a legal problem in Ukraine, which is the result of a large number of illegal actions of state and private enforcement agents related to the seizure ofa vehicle that once belonged to the debtor in enforcement proceedings, but which at the time of the enforcement proceedings commencement or the imposition of the relevant arrest is the ownership of another person who is not a debtor under enforcement proceedings. Illegal actions of law-enforcement officers and the imperfection of the legislation of Ukraine violate the property rights of bona fide purchasers, do not allow them to take actions regarding the registration of the vehicle in the bodies of the Ministry of Internal Affairs of Ukraine, and force them to go to court to protect their rights. However, it should be noted that in most cases, legal ignorance and imperfect justification of the legal position become the basis for refusing to grant such a claim. In this regard, this article presents the results of a scientific and legal study of the issue, identifies the gaps in the legislation of Ukraine that led to this problem, and also provides recommendations for lawmakers to perform changes to the legislation of Ukraine that could address the issue. Additionally, the article provides legal conclusions on determining the ownership of a vehicle (in particular, the moment of transfer of ownership from the seller to the buyer), taking into account the peculiarities of vehicle registration in the bodies of the Ministry of Internal Affairs of Ukraine, as well as on determining the legal status of such a vehicle registration procedure means and determination of the legal status of the actions of state and private enforcement officers regarding the seizure of the transport property of a person who is not a debtor in enforcement proceedings. In addition, the paper provides legal conclusions regarding the existing options for applying to the courts with requests to remove the wrongful seizure from the vehicle.

The ground for necessary defence: analysis of legal positions of the Supreme Court

The article analyzes and summarizes the positions of the Supreme Court on the ground for necessary defence. It is noted that the Supreme Court has identified two elements of the ground for necessary defence (the commission of a socially dangerous trespass and the need to immediately avert or stop it) and has repeatedly referred to the interpretation of various aspects of each of them. The article mentions various definitions of “socially dangerous trespass” provided by the Supreme Court in its rulings. It is noted that the Supreme Court has not addressed the possibility of recognizing a socially dangerous act of an insane person or a person under the age of criminal liability as a socially dangerous trespass as a ground for necessary defence, but in one of its rulings it admitted that such a trespass was committed by a mentally ill victim. The author mentions the conclusion of the Supreme Court that the right to necessary defence cannot arise against lawful acts of another person, even if such acts cause damage to legally protected interests. It is mentioned that, in general, the Supreme Court does not recognize provoked violence as a trespass within the meaning of Article 36 of the Criminal Code of Ukraine, but the exception is when the degree of provoked violence is clearly higher than what a person could have predicted. It is noted that the Supreme Court identifies the objective reality of a socially dangerous trespass as its mandatory characteristic for necessary defence. The author quotes the Supreme Court’s explanation of when it is necessary to immediately avert or stop a socially dangerous trespass. The conclusions of the Supreme Court regarding the time limits of the right to necessary defence are analyzed. In particular, the Supreme Court identifies the initial and final moments of lawful defence. The ruling is mentioned, in which the Supreme Court reminds of the legal prohibition to take into account the possibility of a person to avoid a socially dangerous trespass or to request assistance of other persons or authorities when deciding on the existence or absence of a state of necessary defence.

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.

On the issue of maintaining a balance of private and public interests in satisfying creditors’ claims in bankruptcy proceedings

The article analyzes the problems of satisfying creditors’ claims in bankruptcy proceedings. In the context of a conflict of interests of creditors caused by insufficient property of an insolvent debtor, the search for an optimal model for satisfying their claims was carried out. Common conflict situations arising between pledgees and authorized bodies have been identified. For example, in cases of satisfaction of claims for mandatory payments secured by the seizure of a taxpayer’s property. The tax authorities, as current creditors, also file claims for payment of income tax, property tax and land tax. The legal positions of the Constitutional Court of the Russian Federation are analyzed. It is concluded that it is necessary to eliminate the imbalance of interests of collateral creditors and authorized bodies, and restoration of the security function of the pledge.

Диспозитивный и императивный методы правового регулирования: философско-правовой генезис и междисциплинарная экстраполяция

In this article, the concepts of “dispositivity” and “imperative” are considered as methods of legal regulation from philosophical and legal positions. The author draws parallels with the presence of free will in the individual in the philosophical paradigm, identifying this state of affairs with the dispositive principle in law, and, on the contrary, reflects on determinism as a kind of orderliness inherent in the imperative method. The author's view on the correlation of the use of the previously mentioned methods in the current reality, from the point of view of their essential features, seems to be the most curious. Additionally, the question of the viability of one method in the absence of another is raised, similar to such philosophical trends as compatibilism and incompatibilism in relation to human freedom of expression.

Akibat Hukum Adopsi terhadap Waris Menurut Kompilasi Hukum Islam

Children are the fruit of love that every married couple dreams of, but many couples experience challenges in having children. For many husbands and couples who have been married for a long time but have not been blessed with a child, adoption is the best alternative. However, many problems arise as a result of this implementation; One of the roots of the problem is that many people still do not know about the adoption process, how inheritance is distributed to adopted children, or how the rights of adopted children comply with the general description of Islamic inheritance law. Many problems occur in society because many people do not know about the rights of adopted children or how to submit a formal claim so that their rights are recognized by the state. In the Compilation of Islamic Law, it is stated that a child's lineage must be carried out by his adoptive parents when he marries and inherits. As a result, adopted children have difficulty understanding their legal position. This research uses normative jurisprudence, namely library research using existing books and references. The solution to problems involving adopted children and adoptive parents is for adoptive parents to understand the legal laws and children's rights as stated in the Compilation of Islamic Law which states that adopted children have the same rights as biological children, including knowing their life history, parents his birth, and the religion of his biological parents and that he was adopted by his adoptive parents.

Ownership in the 21st century: property law of digital assets

ABSTRACT ‘If buying isn’t owning, then piracy isn’t stealing,’ is a common refrain on the internet. With this in mind, the article delves into the landscape of property rights concerning digital assets, debunks common misconceptions and clarifies their legal position in the evolving economy. Through an analysis of their intangible nature, the article argues that digital assets are more akin to intellectual property than to tangible assets. Drawing on a spectrum of case law recognising digital assets as objects of property rights, it examines property law in various legal systems, ranging from common law jurisdictions such as the United States, the United Kingdom and New Zealand, to civil law systems such as Germany, China and Poland. It also explores the notion of digital assets as contractual claims and navigates the complexities of conflicts of laws, advocating for a universal framework to protect digital property and data ownership beyond the realm of Non-Fungible Tokens (NFTs).

Legal basis for providing legal aid to a detained person in the context of international standards and practice of the European Court of Human Rights

Based on the analysis of theoretical approaches to the essence of the institute of detention of a person, the article substantiates the position that detention is a procedural action which has a temporary restrictive nature of the rights of a person who was detained during the commission or attempted commission of a criminal offence, immediately after the commission of a criminal offence or during the continuous prosecution of a person suspected of a criminal offence, and which aims to ensure further pre-trial investigation, clarification of the circumstances of the event which occurred. Based on the generalisation of the provisions of international legal acts and taking into account the case law of the European Court of Human Rights, the author defines the standards for providing legal aid to a person detained on suspicion of committing a criminal offence. It is established that the special international standards, compliance with which is crucial for ensuring the rights of a detainee and which also guarantee the effectiveness of legal aid received by a detainee, include 1) the principle of confidentiality in the course of communication between a detainee and a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the rights of a detainee or their violation; 4) the principle of independent and free choice of one's legal position. The following are proposed to be the sectoral international standards, compliance with which is crucial for ensuring the rights of a detainee, and which also guarantee the effectiveness of legal aid received by a detainee 1) the principle of confidentiality in the course of a detainee’s communication with a defence lawyer; 2) the principle of verification of the legality of detention without delay; 3) the principle of appealing against the failure to ensure the detainee’s rights or their violation; 4) the principle of independent and free choice of one’s legal position. The emphasis is placed on the fact that the prospects for further research should be to determine the legal mechanisms for implementing the outlined standards into the national practice of law enforcement and judicial authorities.

Pravni položaj berzi plemenitih metala u uporednom zakonodavstvu

In the years of economic and geopolitical crises and global inflation, there is a noticeable trend of increasing demand for precious metals, which play an increasingly prominent role as an instrument for diversifying the investment portfolio and as a security means. Therefore, the starting point of this research is the analysis of the legal regime for the organization and operation of precious metal exchanges in comparative legislation. Using a comparative and normative method, the author will critically review the principal legal characteristics of precious metal exchanges, the legal position and organization of the world’s most important precious metal exchanges, their business rules and the activities of the regulatory authority that supervises the precious metals trading. Therefore, the objective of this paper is to consider the importance of organizing and operating precious metals exchanges, taking into account that unconscionable, dishonest and non-transparent operations on the precious metals market can cause negative consequences for both market participants and the economy and society as a whole in the case of significant market disruptions.

IN REGARDS TO IMPROVEMENT OF PAYMENT PROCEDURE FOR FORENSIC EXPERTISE IN CIVIL AND ARBITRATION PROCEDURES

The purpose of the research. The article deals with the actual problem of payment for expertise in civil and arbitration proceedings. Legal norms in terms of payment for expertise, their transformation, and influence on the legal position of a forensic expert are analysed. The purpose of the study is to identify the existing gaps of legal regulation affecting the mechanism of payment for expertise, as well as the author's proposals for their settlement by making appropriate changes in the legislation. This is necessary to improve the mechanism of payment for expertise in civil and arbitration proceedings. Results. As a result of the conducted research, the author concludes that recent changes in the civil procedural legislation, in terms of assigning a forensic examination only after depositing money to the court deposit, if there are no grounds to assign it at the expense of the budget, have significantly improved the position of the expert, but still a number of issues remain unresolved. Expert organizations often face the problem of receiving money from the court deposit without a reason and sufficient grounds for such delay. The author concludes that the problem of payment for expert examinations in civil and arbitration proceedings should be approached in a differentiated manner, supplementing the legislation with special mechanisms dedicated to the payment of remuneration to the expert.