Doctrinal Positions Research Articles

Доктринальные и современные взгляды на вопрос о происхождении государстваиправа

. The article attempts to combine the doctrinal ideas of Russian legal science about the origin of the state and law, based on the Marxist postulate of class struggle, with a modern view of the causes of the origin and interrelation of these institutions. In the first part of the work, the author outlines the doctrinal positions on the issue of the emergence of the state, concludes about the key role of social stratification and the formation of the military estate in this process. In the second part, the concepts of modern domestic scientists on the problem of the origin of law are proposed for consideration, based on the analysis of which the reasons for the appearance of this social institution are established, it is shown that law has a longer evolutionary period and its formation began much earlier than the origin of the institution of the state. At the same time, the author does not deny the key importance of law for the resolution of social conflicts in the course of further historical development of mankind.

Понятия и проблемы классификации животных как объектов права собственности

Animals are considered as objects of property rights in civil law. The necessity of legal differentiation of all animals into two categories is justified: the animal world and animals in captivity. The legislative definition of “animal world” is investigated, its unique essential features are highlighted. A study of the category “other animals” is being conducted. Starting from the analysis of doctrinal positions on this issue, the author comes to the conclusion that it is necessary to legislate the category of«animals in captivity», by which it is proposed to understand individually defined animals that are under human control and satisfy his psychoemotional, property, protective, entertainment or other needs. The introduction of this term into the legal field of Russia will allow us to distinguish a category of animals that have their own specific legal regime, different from the animal world, where the latter can be exclusively owned by the state. The essential signs of animals in captivity are revealed. The author proposes to classify all types of animals in captivity on a functional basis into the following groups: domestic; agricultural; service; intended for cultural and entertainment purposes; laboratory. The legal regime of these natural objects as objects of property rights has its own peculiarities associated with additional requirements for the maintenance and proper treatment of these animals, indicating their practical significance for civil legislation.

ПРИНЦИПИ ЗДІЙСНЕННЯ ГРОМАДСЬКОГО КОНТРОЛЮ ЗА ДІЯЛЬНІСТЮ ПУБЛІЧНОЇ АДМІНІСТРАЦІЇ В ЗАКОНОДАВСТВІ УКРАЇНИ

The article analyzes the legal relations of the realization of the rights of natural persons united in public associations to exercise public control over the activities of state authorities and local self-government bodies, their officials and officials as subjects of public administration. The doctrinal positions of individual domestic scientists regarding the peculiarities of legal regulation of public control relations in our country are characterized. It has been established that the state policy in the field of organization and implementation of public control over objects of public control represents the state's reaction to specific issues of socio-political relations, which is designed to reconcile the interests of all layers of society, to find a consensus necessary for the stability of Ukrainian society and the maintenance of interstate social - political balance of relations. The concept of the author's definition of "state behavior" is proposed as the exact and unwavering observance by the objects of public control of the rules of behavior, activity, relations, and official duties established by law, as well as the timely and full performance of state tasks and obligations by them. As a result of the study of the identified issues, the introduction of changes and additions to the Law of Ukraine "On Public Associations" of the following content is substantiated. In particular, article 3 is proposed to be called "Principles of the formation of public associations and the procedure for their control activities according to the statesmanlike behavior of public servants" and to be supplemented with the principles of democracy and legal pluralism. Section III ("Rights and activities of public associations" should be supplemented with the article "Grounds for the exercise of public control over the state behavior of public servants" and include the author's list of the specified grounds. The author's generalizations on the issues of the research were formed and the prospects for further scientific investigations regarding the improvement of tasks were determined, functions and powers of public associations as independent subjects of implementation of state policy regarding the transparency and legality of activities of subjects of public administration.

LEGAL CHARACTERISTICS OF PHARMACEUTICAL ACTIVITY UNDER THE EMERGENCY CONDITIONS: PANDEMIC AND WAR.

The aim: Study of the system of pharmaceutical activity legal support in emergency conditions, namely, the period of epidemics outbreak and during the war. Materials and methods: In the mentioned study, we analyze the state of the governmental pharmaceutical policy during the pandemic and the war in Ukraine. Legal norms and doctrinal positions of scientists regarding the above-mentioned issue are studied. The work analyzes the information presented by specialists in various scientific publications, and also uses scientific methods from a medical and legal point of view. This material is based on dialectical, comparative, analytical, synthetic, and complex research methods. This study analyzes the activities of pharmaceutical enterprises in the emergency state and the problem of ensuring patients' rights to medical care and epidemic safety. As part of the above-mentioned methods, we investigated the problems of pharmacies utilizing questionnaires. A survey of representatives of pharmacy chains, managers of purchasing pharmaceutical products and their pricing, in the cities of Kharkiv, Poltava, Kyiv, Mykolaiv and Lviv in the number of 460 specialists, shows negative trends in price gouging. This is a violation of patients' rights to affordable pharmaceutical products. Conclusions: The pharmaceutical industry of Ukraine was not prepared in advance for extraordinary events, such as a pandemic and martial law, as well as for other natural disasters and foreseeable emergencies. This negatively affected and continues to affect the health of patients.

The Five Characters at Essay’s End: Re-examining Anscombe’s “Modern Moral Philosophy”

Anscombe ends her seminal 1958 essay “Modern Moral Philosophy” with a presentation of five characters, each answering an ancient (and contemporary) question as to “whether one might ever need to commit injustice, or whether it won’t be the best thing to do?” Her fifth character is the execrated consequentialist who “shows a corrupt mind.” But who are the first four characters? Do they “show a mind”? And what precisely is the significance (if any) of her presenting those five just then? In this paper, we interpret Anscombe’s essay with an eye to making sense of her character presentation. We argue that the first four characters can be seen to embody the chief negative and positive doctrines of the essay and to thereby represent and charter a pluralistic school of anti-consequentialist ethics. The upshot is something exegetically interesting yet of broader philosophical importance.

A Positive Doctrine of Tyranny? The Rule of Law Vs. The Rule of a Tyrant in Archaic and Classical Greece

AbstractThe origins and definition of tyranny in ancient Greece have been debated in scholarship for well over three quarters of a century. Recently, it has been argued that tyranny as a political idea was not anathematised until late and that in the fifth century BCE and before, tyranny comported no negative judgment. While correct to point out that the distinction between ‘king’ and ‘tyrant’ in literature predating Aristotle was not clearly delineated, scholars have often failed to ask the more fundamental question of why that distinction was essential for Aristotle. This essay argues that Aristotle drew upon a much older intellectual tradition which saw tyranny as hateful and contrary to the rule of law. Though tyrants in many cases ruled lawfully, a distinction must be drawn between ‘lawful’ rule, which some but not all tyrants practised, and the rule of law, which anathematised tyranny.

The Author's Handwritten Miscellany of the End of 19th Century of the Old Believer Monk Cyprian (Sozonov)

The publication contains information about the Old Believer scribe of Phedoseevtzy congregation of the second half of 19th century monk Cyprian and a description of the author's miscellany compiled by him. The content of the manuscript, entitled "Katolog" by the monk, is interesting both in terms of the volume of sources involved and in terms of topics. The collection reflects the doctrinal position of Cyprian, which manifested itself in the activities of the sketes at the Moscow outpost in St. Petersburg and on Ilyushkin Island, which were headed by a monk.

To the Characteristics of Person Occupyting the Highest Position in the Criminal Hierarchy: Criminalistic and Criminal Procedure Aspects

The authors use the analysis of investigation-court practice and doctrinal positions of researchers to raise the issue of determining the subject of the crime under Art. 210.1 of the Criminal Code of the Russian Federation. The authors describe a number of problems regarding the possibility of establishing and proving the guilt of a person who went through the criminal world’s ritual of “coronation” and thus acquired the status of a “thief in law”. The authors also present their own opinion on the fallacy of the lawmakers’ decision that occupying the highest position in the criminal hierarchy is an independent corpus delicti as it does not meet the obligatory criterion of public danger and, consequently, cannot be called a crime. The authors also believe that the abovementioned corpus delicti is, in essence, neither the action nor the inaction, but is an (actual) state, thus it cannot be called a deed and, correspondingly, a crime.

THE RELATIONSHIP OF PHILOSOPHY WITH MATHEMATICS IN MODERN ERA -THE CASE OF DESCARTES-‎

The modern era witnessed a remarkable development of many sciences, the first ‎of which was mathematics, a fact that directly affected the development of ‎philosophy at that time. This was evident with the rationalist doctrine of ‎Descartes and his followers who made mathematics science their highest scientific ‎ideal that philosophy should emulate by adopting its method and its method of ‎inference as well as some of its concepts. In fact, the impact of mathematics was ‎not limited to philosophy alone, but extended to all branches of knowledge, such ‎as physics, psychology, sociology, economics, ethics, Yet, its impact on ‎philosophy was very strong and distinctive. The reason for this is that the great ‎philosophers of the modern era like Descartes and Leibniz were also great ‎mathematicians. ‎ Thus, the present paper is devoted to Descartes, considering that he was one of ‎the philosophers most influenced by mathematics and geometry in particular. He ‎was greatly upset by the decline of philosophy in his time, its immerson in ‎ambiguity and turmoil, and its fall into endless sterile, debates,‎‏ ‏in contrast to the ‎development of mathematics, and its clarity, objectivity and accuracy. ‎Accordingly, he aspired for philosophy to become a clear, objective, accurate and ‎certain science like mathematics itself through the application of the mathematical ‎method. The clarification of this idea is the objective of this research paper‎.

APOTEOZA SOCIJALNE DRŽAVE: IMPERATIVNI ZAHTJEV OSTVARENJA SOCIJALNE PRAVDE U REPUBLICI HRVATSKOJ

By deliberate choice of the Croatian constitution-makers, the Constitution of the Republic of Croatia protects all economic, social and cultural rights guaranteed by constitutions of developed European democracies and by the International Covenant on Economic, Social and Cultural Rights to which Croatia is a party. This creates a dual (constitutional and international) obligation for the Croatian legislature to establish a socially just order. Although the constitutional text places both of the human rights generations within the same title, the constitutional jurisprudence adopted a position, whereby socioeconomic rights are excluded from the sphere of organic laws used to elaborate the constitutionally guaranteed fundamental rights and freedoms. This development notwithstanding, the potential of their protection before the Constitutional Court has not been reduced, as the Court has developed an impressive list of doctrinal positions on the nature of social rights, committing to the concept of social state as a foundational element of European constitutionalism. Still, we would be remiss if we did not emphasize the Constitutional Court's passive stance towards the political branches of the government regarding the social rights and must therefore plead for a more active approach in that regard.

Application by Court of the Closest Connection Principle as General Gapfilling Conflict of Laws Rule

Problem Statement. Addition of new conflict of laws rules to the section VI of the Civil Code of the Russian Federation and exclusion of corresponding relations from the closest connection principle domain in 2013 raise the issue of this principle regulative potential in the modern context. Goals and Tasks of the Research. The main goal of the research is to substantiate relevance for application by court of the closest connection principle as general gap-filling conflict of laws rule. The indicated goal presupposes two tasks: firstly, on the basis of legal doctrine and judicial acts analysis to reveal legal relations for which there is no conflict of laws rule at the moment; and, secondly, to make analysis of specific case where multinational foreign elements do not permit to solve conflict of laws. Methods. Methods of the research embrace general scientific and particular scientific. The first are the general tools of logic, including analysis, synthesis, induction, deduction and analogy, as well as systemic approach according to which the native conflict of laws is considered as integrated system. The key role among the second plays the comparative legal method which allows to compare positions of legal doctrine and various judicial acts regarding application of the closest connection principle. Results, Brief Conclusion. Thesis is substantiated that the closest connection principle as general gap-filling conflict of laws rule will be relevant as far as social relations are evolving and its new forms require legal, including conflict of laws, regulation. The author makes conclusion that the closest connection principle under para. 2 art. 1186 of the Civil Code of the Russian Federation should be applied by court, firstly, when conflict of laws (on the level of international treaty, national legislation and custom) has no rule for private legal relation of international character; and, secondly, when coexistence of several multinational elements, all relevant from the point of view of the applicable conflict of laws rule, does not permit to solve the conflict of laws.

Alternative tools for the valuation of transactions between related parties

The objective of this research work is to analyze the advantages of using the information contained in transfer pricing studies for the valuation of goods at customs in operations agreed by entities with common economic interests, known as related parties.
 The process of estimating the value of goods at customs poses problems for both importers and customs authorities, since establishing a system that is equitable, uniform and neutral for all parties involved is complicated within a context of disparity of interests.
 International trade operations carried out between related parties give rise to quite peculiar situations since they lead to the incorporation of additional considerations into the customs valuation process, since, when carried out by entities that share the same economic interest, the price agreed between they could be artificially manipulated in order to produce an undue benefit to the detriment of the collection of taxes and duties.
 At present, transfer price studies constitute a control element that is very helpful to the tax authority, so that´s why they have been gaining relevance, since it eases the supervision of operations that involve two or more companies that are part of a same business group, in order to verify that their prices adhere to reality and are not simple speculations to achieve economic benefits, without there really being a business reason.
 Although the Transfer Pricing Studies were designed to prevent the erosion of the tax base in the determination of Income Tax, through the qualitative analysis of the various doctrinal positions on customs valuation, it is concluded that the information contained in them, it constitutes a valuable resource in determining prices in foreign trade operations

IN SEARCH OF THE OPTIMAL MODEL OF CRIMINAL ANLEGAL COUNTERACTION TO ILLEGAL GAMING BUSINESS IN UKRAINE

The article discusses the problems of improving criminal liability for illegal activities in the organization or conduct of gambling, lotteries. The doctrinal positions on this issue, as well as the corresponding foreign experience, are analyzed. It is concluded that: 1) The Criminal Code of Ukraine should be supplemented by a general rule that will provide for criminal liability for all the most socially dangerous manifestations of violations of the established procedure for engaging in economic activities. Theoretically, such a projected prohibition could cover, among other things, unlicensed or other illegal activities related to the organization and conduct of gambling or lotteries, which, accordingly, would eliminate the need for the existence of a corresponding special rule; 2) however, the question of the inexpediency of the existence of a special criminal law norm dedicated to gambling and lotteries can be put on the agenda only when, based on the results of the corresponding painstaking expert developments, the following is formed: – firstly, a well-grounded and, which is no less important, a more or less stable circle of sublicensed types of economic activity, violation of the order of occupation of which should result in criminal liability; – secondly, an improved version of the corresponding general rule, the instructions of which should be correlated with the provisions of the regulatory legislation and within which there will be no room for those controversial aspects that were characteristic of the previously existing Articles 202 and 203 of the Criminal Code of Ukraine; 3) therefore, today the optimal way of criminal-legal counteraction to illegal activities in the organization or conduct of gambling or lotteries is the presence of an appropriate special norm (Article 203–2 of the Criminal Code of Ukraine).

The Holy Sinful Church: Towards a More Realistic Catholic Ecclesiology

Abstract This article demonstrates that in Roman Catholic ecclesiology, it would be more justifiable and realistic to fully accept the concept of the sinfulness of the Church as a whole, not only that of its individual members. The piece begins with a short review and commentary on the doctrinal position of the Second Vatican Council (1962–1965) that provides a doctrinal basis for adopting and developing the notion of a ‘sinful Church’. Then, two contemporary activities of the Roman Catholic Church are analysed in which the notion of the ‘sinful Church’ has played an important role: the Great Jubilee act of confession, with the related explanations and commentaries, and the ecumenical dialogue with Lutherans. The final section attempts to formulate some suggestions for a more realistic Catholic ecclesiology involving a ‘relativisation’ of the Church’s salvific mission and a wider use of the Chalcedonian Christological paradigm in ecclesiology.

Jhon Austin's Positivism Legal Policy: Convergence of Natural Law

Legal positivism is influenced by natural law from Ancient Greece, natural law comes from God to regulate human life. Humans were created by reason by God to make rules, John Austin stated that to make a rule sourced from orders or policies in the field of law by the king or parliament as the highest authority. This influenced the thinking of Hans Klesen with a pure legal theory that complies with hierarchical rules and sanctions, Hart's legal positivism explains that law comes from morals that regulate one's behavior. This paper is in the form of legal research in literature studies in the form of books and journals that discuss positivism legal policy, which is legal research, then analyzed using the John Austin doctrine. The advantage of the influence of natural law on legal positivism according to Austin is that it divides the law into two forms, namely the law from God for humans (the divine law), the law created by God for His creatures. Laws are compiled and made by humans, which consist of: Laws that are actually positive laws (properly so called), and laws that are not actually laws (improperly so called). 2. The doctrine of legal positivism, state power must be limited and controlled by law, the state must be constructed as a state of law and not a state of power. Every citizen is considered to have the same position, law enforcers to think and act legally formalistically, by placing legal justice as the goal of law.

Judicial procedural issues of choosing an effective method of legal protection in civil cases

Keywords: civil procedural protection, court effective way of protection, civilprocess
 The article is devoted to the study of Civil Procedureaspects of the court's application of a proper and effective method of protecting aviolated right within the frame of its own judicial discretion. Attention is paid to thestudy of the legal nature of civil protection, existing doctrinal positions, as well as thelegal and regulatory environment. The features of the exercise of discretionary powersby the court regarding the use of an effective method of protecting violated privatelaw have been established. It is indicated that the court is empowered to choose an effectivemethod of legal protection exclusively within the limits of the statement ofclaim — claims are detailed. It is emphasized that when choosing an effective methodof protection, the principle of the rule of law must be observed, in accordance with theprovisions of Article 10 of the Civil Procedural Code of Ukraine (“CPCU”). This meansthat an effective method of legal protection must be correlated with the provisions ofthe Convention for the protection of human rights and fundamental freedoms and thecase law of the European Court of Human Rights. This universal provision applies toall cases of claim proceedings, namely the claim, which are decided by the rules ofcivil procedure. The peculiarity of the court's use of an effective method of protectionin civil cases is that it can choose an effective method of legal protection only in courtcases in which the claim is considered, as well as when the law or agreements do notdetermine the effective method of legal protection. On the basis of the conducted scientificresearch, the author has developed own gradation of legal criteria of choice bycourt of an effective way of legal protection at consideration of civil cases. Such a gradationis universal for all cases considered by the court under the rules of civil procedure.Exceptions to the above regarding the application of a specific method of protectionare cases related to compensation for damage caused to an individual as a resultof withdrawal of an insolvent bank from the market or liquidation of the bank.

Quantum Legacies: Dispatches from an Uncertain World

Quantum Legacies: Dispatches from an Uncertain World

International Legal Protection of Animals: Problems and Prospects

INTRODUCTION. The purpose of this work is to identify the main problems of modern international legal protection of animals and the theoretical justification of the need to change their legal status (regime). The main task of the research is to study modern concepts that have already become the basis of international legal acts for the protection of various categories of animals, as well as ideas that have sufficient potential to lay the foundation for a more conscious attitude to other biological species. Furthermore, the research highlights significant shortcomings of the global legal policy on animal protection, which hinder the achievement of the main goals of international cooperation in this area. The research also suggests new approaches that can solve both ethical and environmental problems of human-animal relationships in the very near future. In addition, this scientific work provides various philosophical and legal arguments that confirm the need to assign a special legal status to animals.MATERIALS AND METHODS. The research examines the doctrinal positions of mainly foreign researchers and legal experts dealing with the problems of international legal protection of animals. This study uses the norms of some international legal agreements of a global and regional nature, as well as the provisions of recommendation documents. The research used general theoretical (analysis, synthesis, comparison, induction, deduction, abstraction, generalization, idealization, analogy, modeling, concretization, logical, systematic and comparative approaches) and special legal methods (historical-legal, formal-legal and the method of legal forecasting).RESEARCH RESULTS. Based on the results of the study, the author identifies the main problems of international legal regulation of relations on the conservation of biodiversity in the framework of the implementation of the concepts of environmental protection and sustainable development. In addition, the study highlights the most important achievements and significant gaps in the EU's legal policy on animal welfare. Through the synthesis and generalization of the main provisions of the concept of well-being and the concept of animal rights, this scientific work forms an idea of the most successful model of international legal protection of animals. Based on the obtained result, the study predicts the inevitable change in their legal status (regime) and the revision of the existing anthropocentric paradigm of modern legal science.DISCUSSION AND CONCLUSIONS. The vast majority of existing international legal agreements on the protection and use of animals protect the secondary interests of modern consumer society, where animals have a rank based on their usefulness, without taking into account their immanent value. If the trends of recent decades continue, the environmental goals set by international environmental law will remain unattainable. In order to solve a layer of ethical and environmental problems, it is necessary to abandon the anthropocentric approach, which permeates the entire system of international law, in favor of a more perfect organization of human relations with nature (for example, in favor of anthropocosmocentrism, cosmocentrism, biocentrism, etc.). In addition, the identification of animals with property does not correspond to modern ideas about them as sentient beings. It is unacceptable to treat them as «things» within the framework of national legal systems and international law. Regardless of whether they will have legal capacity or will lead a new, specific category of persons, animals must have a certain set of international legal guarantees.

THE RIGHT TO APPEAL AS A FUNDAMENTAL RIGHT IN CHILEAN CIVIL PROCESSES, IN THE LIGHT OF CASE-LAW

El objetivo principal de este artículo es examinar si el derecho a recurso constituye un derecho fundamental en los procesos civiles. El método empleado ha sido verificar la normativa vigente; recoger los argumentos de las posiciones doctrinales al respecto y analizarlos a la luz de la Jurisprudencia, principalmente, de la Corte Interamericana de Derechos Humanos y del Tribunal Constitucional. Para estos efectos, se recogieron 14 sentencias de la CIDH, en las cuales los juristas reposan sus argumentos. Asimismo, se realizó un barrido de las sentencias dictadas por el TC, desde el año 2003 a julio del 2019, ascendiendo la revisión en un total de 5963 sentencias, de las cuales 71 de ellas, se relacionaron con el “derecho a recurso”, de forma específica. El resultado ha sido la constatación de que, en el derecho chileno, el derecho a recurrir no constituye un derecho fundamental en los procesos civiles.

Middle East and African Student (MEAS) perceptions of Islam and Islamic moderation: a case study

Islamic Moderation is such a fundamental concept that without it understanding faith is inadequate at best. Muslims are required by definition of the term ‘Muslim’ to remain on the middle path in everything pertaining to the life ways. They must not overstep the bounds (tafrit) and become trapped in the extremist quagmire (ifrat). As an Islamic doctrine par excellence, moderation inherently finds solutions for injustice and the violation of human rights. Nonetheless, some schools of Islamic thought (madhhabs) attend extremist ideology, particularly those of Middle East and African savour. These have spread a frightful spirit of intolerance throughout the world that has indelibly blackened Islam’s image by choosing to deny Islam’s characteristic spirit of moderation. In so doing, they marginalize any proper implementation of authentic Islam and block all corrective political discourse. Militant radicals clearly neglect moderation as a doctrinal position that is traditionally essential to the creed. This paper presents a broad exposure to Islam’s middle path with a focus on 192 respondents in a survey taken by Middle Eastern and African students (MEAS) studying in Malaysia. Qualitative and quantitative approaches were used to achieve four significant findings indicating these students do not understand the nature of being a good Muslim.