Legal Qualification Research Articles

Towards a legal qualification of digital intimidation against environmental defenders: navigating core components and characteristics

ABSTRACT Digital technologies are becoming increasingly important for environmental defenders. Such technologies offer them possibilities to speak out and/or take action, but also increase the (digital) risks they face as a result of their (online) involvement. Recently, significant concerns have been raised about the use of various forms of online and technology-facilitated forms of harassment or ‘digital intimidation’ against environmental defenders. This raises the question of whether environmental defenders are adequately protected by the current legal framework. To assess this, it is essential to first understand the phenomenon of digital intimidation. This paper therefore aims to identify the ‘core’ components and characteristics relevant to digital intimidation to enable further legal qualification and analysis. As such, we propose a digital intimidation navigation tool that can facilitate a more sophisticated understanding of the different tactics used, as well as a fine-grained analysis of the existing legal framework.

ANTI-HYBRID MISMATCH PROVISIONS OF THE FOREIGN TAX LEGISLATIONS AND THEIR COMPLIANCE WITH THE TAX CERTAINTY PRINCIPLE

Hybrid mismatch arrangements are means of structuring cross-border transactions which result into double taxation or double nontaxation due to differences in the legal qualification of the taxpayer’s status or the legal qualification of the type of income. Hybrid mismatches arise due to imperfection of legislative techniques and are often accidental, but in some cases hybrid mismatch arrangements act as a way of committing tax offenses, leading to base erosion and profit shifting. The key provisions against the intentional use of hybrid mechanisms aimed at tax avoidance are being specified at the level of national legislations. One of the problems arising out of such norms’ adoption is concluded in providing them with compliance to tax certainty principle, which acts as a guarantee of tax legislation application in accordance with the content of public interest laid down into them, and as the means of protecting the taxpayers’ reasonable expectations at the stage of law enforcement. This article analyzes the existing antihybrid mismatch provisions of the certain foreign tax legislations (on the examples of the United States of America, of the United Kingdom and of the members of the European Union) for their compliance with the tax certainty principle.

Differentiation of grounds for disciplinary liability of judges

The article focuses on the distinction between the grounds for disciplinary liability of judges. It is noted that the main reason for different qualification of similar violations of judges is a large number of evaluative concepts among the grounds for disciplinary liability. The corpus delicti of judicial misconduct have a large number of similar features in terms of content, and therefore the practice of their application is complex and controversial. The issue of distinguishing between the elements of disciplinary misconduct requires special attention, since the severity of the type of penalty chosen by a judge depends on the accuracy of the disciplinary and legal qualification. The author emphasizes that the reasons for the problem of distinguishing the grounds for disciplinary liability of judges are their broad formulations at the legislative level, a large number of evaluative concepts and an increase in the number of related corpus delicti over the past decades. Examples from disciplinary practice show that there are no uniform approaches to the qualification of disciplinary offenses related to procedural violations of judges in the administration of justice. In some cases, similar procedural violations are qualified only on one ground, in some cases – on another ground, and in others – on several grounds. Different disciplinary and legal qualifications of similar judicial misconduct lead to different disciplinary sanctions. The author emphasizes that it is important not only to identify consistent legal positions on the disciplinary and legal qualification of judicial misconduct, but also to offer future disciplinary inspectors a certain standard algorithm of actions and methodology for qualifying judicial misconduct during an inspection. In order to avoid criticism and accusations of double standards, it is important to develop and put them into practice. Key words: disciplinary liability of judges, grounds for disciplinary liability, disciplinary offenses, disciplinary sanctions, qualification of violations..

Criminal and legal qualification of the victim of the crime of enticing a minor into committing acts endangering his life (Article 151² of the Criminal Code of the Russian Federation)

This article explores the intricate landscape of criminal-legal relations pertaining to the definition of characteristics of victims, particularly minors, within the framework of Article 151² of the Criminal Code of the Russian Federation. The author unravels the psychological, social, and legal foundations underpinning the inclusion of "minor" as a distinct category characterizing crime victims. Emphasizing modern perspectives on human development and the determination of the age of majority, the study delves into the nuanced legal status of minors as both subjects and victims of criminal acts. Employing general scientific methods, formal-legal interpretation, and critical-legal analysis, the author scrutinizes the existing legal norms, shedding light on their shortcomings. Special attention is dedicated to unique categories of juvenile victims, such as emancipated individuals and those with social and mental development peculiarities. The research marks a contribution by offering the first comprehensive analysis of victim characteristics governed by Article 151². Key findings underscore the necessity of recognizing minors as a distinctive victim category, driven by inherent psychological traits, the demand for specialized legal protection, and their limited legal status. The study highlights specific temporal constraints related to the minor age of victims and minimizes the relevance of personal characteristics and moral qualities in cases involving crimes committed by minors. Proposing legislative improvements, the article enhances understanding and discourse in this complex intersection of criminal law and juvenile victimology.

Surrogacy Contract: Legal Qualification And Individual Content Elements

As part of the study, the author proposed the concept of a surrogacy contract — this is an agreement that is a substantive element of the contract for the provision of a comprehensive medical service aimed at overcoming the reproductive dysfunction of the parents (customer) through non-invasive replacement of unhealthy reproductive organs of the parents (customer) with healthy reproductive organs of the reproductive donor assistance of medical support of a specialized medical institution accredited to carry out the relevant procedures. Taking into account the subject of this agreement, the position is argued that its regulation should relate exclusively to the civil law plane as a kind of contract for the provision of services for compensation. The essential conditions of such an agreement are indicated: the subject matter, the irrevocable consent of the reproductive donor to record the customer as parents, as well as the amount of monetary compensation equivalent to the temporary loss of health of the reproductive donor in connection with the fulfillment of the obligations assumed under the contract. The author points out that this method of infertility treatment is a kind of donation that has certain specific features, in particular, it does not require the removal and transfer of reproductive donor organs to persons suffering from reproductive dysfunction. This also determines the essence of the role performed by the reproductive donor — the temporary provision of a healthy reproductive system for carrying an implanted embryo.

The United Nations Convention on Genocide and How It Can Be Implemented in Criminal Codes of State Parties

The issue of developing effective mechanisms to prevent and punish the crime of genocide remains relevant in the modern world. Over the years, the UN has been trying to fulfil the mandate to ensure international security through the prevention of crimes against humanity. In this context, the study of the mechanisms of legal qualification and prosecution for these acts is of particular relevance. At present, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide remains the main instrument regulating the responsibility for crimes that can be qualified as genocide. The purpose of this study is to analyze the practice of incorporating the provisions of the 1948 Genocide Convention and the problems of their criminal law regulation and modernization. The results are made up of interconnected target, procedural, and evaluation elements, which are based on the method of legal analysis of the legislative practice of countries with different approaches to the issue of genocide. All the examples given in the work show that the process of introducing effective mechanisms of prosecution for genocide by states, among which national courts can be named first, is ongoing, but it is happening very slowly.

The European Union in Global Competition of Jurisdictions

International legal regimes are a factor in regulating relationships between subjects of international relations, constructive interaction, policy coordination and resolution of contradictions. When conflicts arise, the interaction of the legal systems of states, regional associations and international organizations can be both complementary and competitive in nature, affecting the legal qualification of the parties’ actions. Competitiveness manifests itself in the interpretation of the actions of the same entities within different jurisdictions. The conflict of interests of the parties, as confirmed by examples from the contractual legal practice of relations between the EU and the USA, Canada and a number of other countries, is quite surmountable. The cluster of contradictions characterizing the current situation on the European continent gives an existential character to the search by all parties for a rational strategy for resolving the crisis. The purpose of international law is to put contradictions into the legal plane in order to avoid escalation of tension in relations between the warring parties. An objective assessment of the positions of the world centers of power and the basic legal principles that guide them in the strategy of global presence requires taking into account the problems that gave rise to the replacement of the previous attitude towards «integration of integrations» by a direct clash of the parties. A critical analysis of the key areas of the EU’s implementation of external competencies, including sanctions (implemented with varying degrees of effectiveness in recent years), is important for understanding the strategy that Brussels is implementing. The current crisis is a serious test of the EU’s resistance to stress, and of the Union’s value system for resilience in unfavorable external conditions. The subject of this paper is the real possibilities of the European Union to offer an alternative to the confrontational scenario.

Сhanging the legal qualification of the facts of a person’s disappearance: a practical aspect

The article is devoted to the study of the peculiarities of legal qualification of criminal offences entered into the Unified Register of Pre-trial Investigations on the facts of disappearance of a person under the conditions of temporary occupation and force majeure circumstances in the period from 20.02.2014 to the present. The actions of an investigator at various stages of pre-trial investigation of such criminal offences have been analysed, taking into account investigative situations directly related to premeditated murder as a result of violation of the laws and customs of war. The grounds for changing the legal qualification in criminal proceedings on the facts of missing persons have been proposed.
 The variability of legal qualifications in criminal proceedings based on the facts of the missing person under special circumstances that occurred in the temporarily occupied territory, due to the influence of force majeure, forced migration of the population, the lack of a unified approach of investigative units, the prosecutor's office and the court to this issue at various stages of the pre-trial investigation is a problem that affects the assignment of a fair punishment to persons whose guilt has been proven by the court in the commission of criminal offenses of a violent nature, the consequence of which is first the disappearance of a person, and then the establishment of the fact of his/her death or violent death, extrajudicial execution.
 The objectivity of the pre-trial investigation in criminal proceedings on the facts of intentional murders resulting from violations of the laws and customs of war that preceded the disappearance of a person is ensured by establishing reliable and confirmed data on the circumstances of the crime, absolutely all the facts that have preceded it, all information characterising the missing person, his or her lifestyle, connections, political preferences.
 Under special conditions and the force majeure factor, investigative situations of missing persons at the initial stage of the pre-trial investigation are almost typical. However, high-quality documentation of such criminal offences and bringing the perpetrators to justice is ensured through the proper organisation of interaction between the investigative and operational units of the National Police and other law enforcement agencies with the military, forensic experts and volunteer search organisations. Currently, the military aggression continues.

Polski model prowadzenia śledztw w sprawach oszustw podatkowych popełnianych metodą karuzelową

This article is devoted to an analysis of the Polish model of conducting an investigation in cases of tax fraud committed with the carousel method, clearly indicating the superiority of the offensive (dynamic) type over the static (conservative) type. It concerns the economic evolution of an organized crime and discusses the carousel mechanism, raising the issue of carousel crimes and their legal qualification. The article presents the main features of a dynamic and static model through the prism of specific goals facing investigators in this type of case. Finally, it presents selected methodological guidelines aimed at the most extensive possible implementation of the model of conducting an investigation preferred due to the level of activity in cases of tax carousel fraud.

Proceedings in Courts on Cases of Administrative Offenses as an Integral Part of Administrative Proceedings

Introduction. The consideration by the courts of cases of administrative offenses is an essential part of the administrative judicial process and acts as one of the means of combating these offenses, as well as ensuring the legality of bringing individuals and legal entities to administrative responsibility. Meanwhile, the procedural and legal nature of the resolution by the courts of cases involving individuals and legal entities to administrative responsibility and cases of challenging decisions and decisions made in cases of administrative offenses (administrative proceedings or administrative jurisdiction) has not yet been clearly defined. In the context of the inconsistency of the current regulatory and legal regulation of the activities of courts of general jurisdiction and arbitration courts for the resolution of cases of administrative offenses referred to their competence, the question of the procedural and legal qualification of this activity becomes particularly relevant. Theoretical Basis. Methods. The theoretical basis of the research was the works of Russian legal scholars on the theory of justice, administrative proceedings, proceedings on administrative offenses, as well as normative material contained in the le¬gislation on administrative responsibility and administrative proceedings that were in force earlier and in force now. The main research methods used were the method of formal-legal analysis of normative legal acts and the historical-legal method. Results. It is stated that the institution of judicial review of cases of offenses (misdemeanors) that are not recognized as crimes originated in the Russian state in the XVIII century and then evolved throughout the XIX and XX centuries. It is shown that historically two forms of court resolution of cases of administrative offenses have been formed: consideration of cases on bringing individuals and legal entities to administrative responsibility and consideration of cases on appeal (challenging) decisions and decisions made by administrative bodies or lower courts in cases of administrative offenses. The absence of uniform approaches to understanding the legal nature of judicial acti¬vity in resolving cases of administrative offenses in the domestic procedural and legal science has been revealed. It is established that this activity is considered from two positions: as the administration of justice in the form of administrative proceedings and as the implementation, together with administrative bodies, of a separate independent complex administrative and jurisdictional proceedings. The inconsistency of the fe¬deral legislative acts currently in force regulating the consideration by courts of cases arising from administrative legal relations in terms of the procedural and legal qualification of judicial proceedings in cases of administrative offenses is noted. Discussion and Conclusion. As a result of the conducted research, conclusions are formulated that the proceedings in cases of administrative offenses in all courts that are part of the judicial system of the Russian Federation represent the administration of justice in the form of administrative proceedings and are subject to regulatory se¬paration from extrajudicial (administrative) proceedings in these cases.

Evolution and current status of the legal qualification of the consideration for local public services

En este trabajo se analiza la evolución de la calificación jurídica de las contraprestaciones exigidas por los servicios públicos locales. Se expone tanto la evolución de la jurisprudencia (especialmente la del Tribunal Supremo y la del Tribunal Constitucional), como las reformas normativas que se han sucedido. Por último, se ofrece un estudio crítico de las nuevas prestaciones patrimoniales de carácter público no tributario en el ámbito local.

Wynagrodzenie według stawek godzinowych – wytyczne dla radców prawnych świadczących pomoc prawną konsumentom na kanwie wyroku Trybunału Sprawiedliwości z dnia 12 stycznia 2023 r. (C-395/21)

The article addresses the issue of the legal qualification of various defects in contractual provisions concerning remuneration for the provision of legal assistance to consumers. The impetus for bringing this issue closer is the recent judgment of the Court of Justice of the European Union of January 12, 2023, (case file no. C-395/21) which took interest in the area of rules for the exercise of legal professional activity. This is because, from the perspective of the EU law, it contains an assessment of the legal consequences of the lack of transparency of provisions shaping contractual remuneration based on hourly rates for services provided to consumers by the Lithuanian attorneys. The purpose of this article is not only to present the assumptions of this ruling, but also, taking them into account, to formulate conclusions that, in light of the Polish law, should be addressed at attorneys-at-law and other Polish service providers, both operating in the regulated and unregulated legal services market.

LEGAL REGULATION OF ACCESS TO TECHNOLOGICAL INFRASTRUCTURE IN THE FUEL AND ENERGY SECTOR

The article analyzes the doctrinal foundations of technological connection as an institution of energy legislation, as well as its main features and problems of law enforcement. At the same time, the multidimensional nature of this institution is emphasized, in particular, including technological, economic and legal aspects. The expediency of legislative consolidation of the right of access to energy infrastructure for consumers of energy and energy resources, which must be distinguished from factual (technological) actions aimed at its implementation, is shown. The possible cases of denial of access to technological infrastructure and their consequences are analyzed, the need for regulation of such consequences for network and resource transportation organizations is shown. From the doctrinal and law enforcement positions, the question of the legal nature of the technological connection agreement is investigated, while the impossibility of its legal qualification as a sui generis contract is shown. The legal qualification of the contract for technological connection is related to the issue of the customer’s right to unilaterally refuse to execute the contract for technological connection, which is an important element of its legal status. When studying the issue of alienation of the right to the connected capacity, it is concluded that its alienation is permissible, provided that mechanisms are created to prevent abuse of the right in this area.

CONSENT TO HARM IN THE SYSTEM OF LEGAL FACTS: GERMAN DOCTRINE AND CASE LAW

The article is devoted to the development of approaches to the legal qualification of the consent to harm in German doctrine and case law. The author explores the problems of the transactional theory of consent, based on the provisions of the German Civil Code and dogmatically formulated in the work of E. Zitelmann. The article describes the early case law of the German high courts on the consent to harm. The author generalizes critique of the transactional theory of consent in the doctrine and describes a departure from it in the case law of the mid-20th century in Germany. The author dwells in detail on various non-transactional approaches to the qualification of consent presented in the works of K. Larentz, E. Schenke, O. Bucher and W. Münzberg. The article describes a modern approach to consent based on the teleological reduction of some rules on transactions. The author comes to the conclusion that the development of doctrinal views on consent to harm in Germany proceeded dialectically: from the transactional qualification of consent through non-transactional approaches to the limited application of certain rules on transactions. The author suggests to qualify consent to harm as a transaction with some reservations.

Legal Aspects of Virtual Assets Regulation in Ukraine

Abstract Virtual assets are a concept that has made its way into the modern financial and legal lexicon in recent years. Markets are formed around them, transactions are conducted with them, they are the object of increased interest in the field of investment activities. The need for legal regulation of new types of social relations transiting to the virtual plane stimulates lawmakers to take active measures concerning the formation of a legislative basis in this area. This study intends to consider the challenges facing the Ukrainian legislator in the light of the adoption of this law based on existing foreign practices. The study suggests that such obstacles now include not only terminological differences, but also issues of legal qualification of illegal actions with cryptoassets, issues of theoretical and legal understanding of the new legal relations.

Legal Aspects of the Circulation of Digital Currencies

The appearance in practice of “cryptocurrencies”, “digital currencies”, “electronic currencies” makes lawyers to give a legal qualification to this phenomenon. To answer the question about its legality. In recent years, Russian legislation has been amended in order to regulate relations in this area. This confirms the relevance and novelty of the study. Using general scientific and special-legal methods of scientific knowledge, which is based on analysis, synthesis and deduction and induction, the work assesses prospects of development and degradation of social relations related to the circulation of digital currency. A critical analysis of the Russian legislation regulating relations in the field of creation and circulation of digital currency and electronic money, which in practice is called cryptocurrency, is made. Foreign experience in this area is reviewed. The style of the Russian legislator is criticized, in which any new law regulating similar legal relations synthesizes new terms, which creates difficulties in their joint application in practice. The problems of using various forms of money in practice are identified and illustrated. It is predicted that the creation by the legislator of a new specific form of money will lead to a difference in the economic fate of these various forms. The legal capacity and economic potential of these assets to perform the functions of money are assessed.

War crimes and crimes against humanity in Ukraine: Legal qualification and features of documentation

This scientific article is devoted to the interpretation of war crimes and crimes against humanity, peculiarities of regulation of these illegal acts and organization of their investigation in Ukraine. Using the dialectical method, it emphasizes the necessity of using the resources of the International Criminal Court ICC in Ukraine and establishing a Special International Tribunal to hold personally responsible for the commission of crimes of aggression the actors involved. The expediency of creating a special state institute for interaction with the ICC with the appointment of national coordinators is argued. The components of the concept of investigation of war crimes and crimes against humanity are determined as a holistic, comprehensive and interdisciplinary theoretical system for activities under special conditions. In the conclusions of the case, the need to ensure clear management and coordination of the international investigation team under the auspices and control of the International Criminal Court and the Eurasian Agency in order to collect, execute, systematize and preserve the factual evidence base, in accordance with the rules of the international protocol, is pointed out.

Проблеми визначення поняття «кримінально-правова кваліфікація»

The issue of defining the concept of "criminal legal qualification" was considered. It is noted that in order to regulate the most important social relations, the state adopts laws that establish generally accepted rules of behavior. The law on criminal liability is one of the important means of protecting life, health, honor, dignity, inviolability and security of a person as the highest social value, the state system of Ukraine, its political and economic systems, property and the entire legal order from criminal encroachments and a means of combating them. Only the law on criminal responsibility contains criminal law norms that determine the general provisions of criminal law, which establishes the principles and grounds of criminal responsibility, criminality and punishment of acts, grounds for exemption from criminal responsibility and punishment. Therefore, the practice of applying the criminal law is of great importance. One of the most important issues in the application of the criminal law is the issue of criminal legal qualifications. It is emphasized that many works are devoted to the issue of qualification in criminal law. In each scientific work, in which the question of the criminal-legal qualification of a criminal offense was considered, each scientist gave its concept. However, in the middle of the last century, we spoke more narrowly about the qualification of crimes, in the future, the study of this issue was approached more broadly, and today we are talking about the criminal-legal qualification. The views of scientists on the definition of the concept of "qualification of crimes" and "criminal legal qualification" are disclosed. It is noted that V.Navrotskyi's scientific works dealt more deeply with the issue of criminal-legal qualifications. It has been established that the concepts of criminal law qualifications in Ukraine are defined by scientists, as a rule, in scientific works, textbooks on criminal law, relevant monographs, manuals. The law does not contain this concept, which is a gap in the legislation. It is noted that a working group on the development of criminal law has been created in Ukraine, which proposed a draft of the Criminal Code of Ukraine, which provides the concept of criminal-legal qualification. Yes, the criminal legal qualification is the definition of an article (its part, clause) of this Code that provides for the committed act and defines it as a criminal offense (including articles that provide for signs that change the degree of severity of the crime, the presence of preparation for a crime or an attempt to commit a crime , type of accomplice and form of complicity) or as an act that is not a criminal offense. It was concluded that the concept of criminal-legal qualification given in the Draft Criminal Code of Ukraine is clear and reflects the essence of qualification as a process and result of a certain direction of law enforcement activity. Enshrining criminal legal concepts in the legislation contributes to the improvement of criminal legislation, the elimination of gaps in the previous law and will help law enforcement officers in the application of criminal legal norms.

Creative vision as a legal category: concept, legal nature, correlation with related categories

The article considers the main views set out in the scientific literature, as well as in judicial practice, regarding the interpretation of the creative component in the creation of objects of intellectual activity. The meaning of creative work in the creation of such objects is analyzed — from pre-revolutionary lawyers to the modern understanding. The author distinguishes between mechanically created objects and creative objects, identifies two criteria that are necessary to recognize the object created by creative way: objective and subjective. The understanding and correlation of such categories as “creativity”, “creative work”, “creative vision”, “single creative idea”, “creative conception” is analyzed. It is the use of such categories that allows the court to establish the protectability of objects of exclusive rights, to distinguish complex and composite objects, as well as objects of independent creation and repetition of someone else’s work. The author of the article comes to the conclusion that for the definition of creativity as one of the components of the legal qualification necessary for the protectability of the object the most comprehensive is the concept of “creative vision”.

Problems of subjects and legal personality in family law

In family legislation, unlike civil legislation, the subjects of legal relations are not directly named. In addition to the disparity of norms concerning subjects of family legal relations, the mobility of the composition of such persons, due to the evolution of society and law, is a problem. A comparative analysis of the norms of law and doctrinal positions is carried out, as a result of which various classifications of subjects of family legal relations are identified, the inclusion of organizations and public legal entities, the family as a quasi-legal entity, is justified. As a result of the introduction of the institution of the foster family, new special subjects of family legal relations appeared — foster children and foster parents. In connection with the development of assisted reproductive technologies, the issue of qualification of potential parents, sperm donor and surrogate mother as subjects of family legal relations has been raised. There is a problem of legal qualification of the embryo. The problems associated with the legal personality of participants in family legal relations are revealed: the mixing of marital and family legal personality, the absence of separate norms on family legal capacity and legal capacity, etc. It is proved that the scope of family legal personality varies depending on age, a number of other legal facts, including other sectoral nature; it is associated with the goal-setting of the exercise of rights and performance of duties.