Doctrinal Positions Research Articles

Правовые особенности включения сведений в реестр недобросовестных поставщиков в ходе осуществления корпоративных закупок в условиях санкционной реальности

The author of the article analyzes the legal aspects of including information in the register of unscrupulous suppliers, especially as a result of the unilateral refusal of a corporate customer under the influence of foreign sanctions to fulfill the contract. Based on the analysis of the regulatory framework, law enforcement practice, doctrinal positions, as well as statistical data, the article attempts to analyze the mechanism of implementation of the introduced regulatory measures to protect the interests of customers under sanctions pressure. It is suggested that these mechanisms will be aimed at deterring and minimizing the negative effect of sanctions on corporate customers. At the same time, the author points out the shortcomings of the amendments made to the Procurement Law, including those expressed in the lack of awareness of the procurement participant about the existence of sanctions restrictions on the customer, as well as the lack of proportionality of the measure of responsibility applied to the supplier to the extent of harm caused to the customer.

The Law Applicable to Electronic Signatures Comparative Study

This study dealt with one of the most important legal subjects in private international law that relates to the topic of law applicable to electronic signature and is problematic by the lack of clear and explicit texts to determine the law required on the topic The main objective of the study was to reflect the legal regulation in private international law of such a problem, as well as to address some practical and applicable problems relating to the topic of the study, including the legal nature of an electronic signature, When preparing this study, the researcher relied on the inductive approach by extracting legal texts on the subject of the letter in accordance with Jordanian legislation. in addition to the analytical approach where the researcher analysed and described the legislative and doctrinal positions and international conventions associated with the subject matter of the letter, The prescriptive approach, through a statement of the legal nature of the electronic signature. The researcher produced a series of results, the most important of which was the absence of clear and explicit texts specifying the law applicable to the electronic signature. This result was reflected in the recommendations of this letter, which were the most important recommendation to the Jordanian legislature that legal rules should be drawn up to determine the law applicable to the subject matter of the study.

DIRECTIONS AND PROCEDURE FOR COORDINATION OF MATERIAL AND PROCEDURAL NORMS OF FINANCIAL LAW IN REGULATING THE BEHAVIOR OF SUBJECTS OF TAX RELATIONS

The article is devoted to the analysis and coordination of material and procedural norms of financial law in the context of regulating the behaviour of subjects of tax relations. The author examines the main directions and order of interaction of legislative acts, doctrinal positions aimed at regulating the financial aspects of taxation, with the aim of harmonizing these norms for effective control and ensuring compliance with their requirements. The article highlights the important aspects of the influence of material norms on the tax practice of subjects, defines the key aspects of legal personality in the taxation system and argues for the need to harmonize the material and procedural aspects of financial law. The article examines in detail the tools and mechanisms of coordination of material and procedural aspects of financial law to ensure the effective functioning of the taxation system and reduce the risks of violations. The author analyses the relationship between legal standards and real practice in the field of tax relations, taking into account economic and social factors affecting the behaviour of tax subjects.

Criminal liability for the commission of war crimes: analysis of the corpus delicti of unlawful encroachments

The need for a criminal law analysis of military-violent crime is substantiated given the ongoing armed conflict in Ukraine, the annexation of some of its territories and the open calls of the russian authorities to destroy the Ukrainian nation and incite hatred towards everything that identifies Ukraine as a sovereign independent state. The classification of war crimes in the context of the armed conflict in Ukraine is proposed depending on the category of victims Military violent crimes in the context of the armed conflict in Ukraine should be divided into two groups of offences depending on the category of victims. The first group of such unlawful encroachments includes war crimes against the civilian population (Article 433; parts 1 and 2 of Article 438 of the CCU – violation of the laws and customs of war regarding rape and sexual violence, enslavement and torture, forced displacement of civilians, intentional killing of civilians; Article 442 of the CCU). The second group of military-violent offences includes military-violent crimes against servicemen (Article 434 of the Criminal Code of Ukraine; Part 1 of Article 438 of the Criminal Code of Ukraine – violation of the laws and customs of war regarding the ill-treatment of POWs, including cases of use of prohibited means and methods of warfare, as a result of which a serviceman was recognised as a victim). The approaches to the interpretation of certain features of the objective and subjective sides of the corpus delicti of the relevant military-violent crimes in the course of law enforcement are analysed and clarified, and recommendations aimed at forming a unified law enforcement practice regarding their criminal law qualification are provided The emphasis is placed on the fact that for the purpose of qualification and distinction from other war crimes of violation of the laws and customs of war in various forms of the objective side of Part 1 of Article 438 of the CC of Ukraine, not only the features of the objective side, the disposition of which is of a blanket nature, are important, but also the features of the subject of this criminal encroachment, which is not limited to the fact that it can be only a combatant. The author offers recommendations on the qualification features of various types of military violent crimes and their distinction from crimes against humanity, taking into account the existing doctrinal positions.

CONDITIONALITY OF THE SUBJECT OF EVIDENCE IN A COURT WITH THE PARTICIPATION OF JURIES BY THE INDIVIDUAL PROPERTIES OF THE JURY TRIAL

The subject of proof in a jury trial has its own characteristic features. The analysis of doctrinal positions on the essence of the trial by jury allowed us to conclude that procedural and psychological elements are internal features of individual properties of the jury trial. Identified internal signs of individual properties of the jury trial, made it possible to outline the factors that determine the features of the subject of proof in a jury trial. To the procedural features the author attributes the factor of differentiation of the subject of proof. The study of evidence with the participation of jurors for the verdict (a question of fact) and the study of circumstances to be proved in the case after the verdict (a question of law). The factor of narrowing the subject of proof by excluding certain circumstances from the subject of proof in the form of the study of circumstances characterizing the defendant’s personality. Prohibitions to investigate “other data” that may cause prejudice to the jury against the defendant. The factor of expansion of the subject of proof by raising additional questions, inclusion of certain circumstances, depending on the position of the parties. To psychological signs the author includes the factor of differentiation of the subject of proof in the form of a difference in the perception of the juror and professional judge of the circumstances to be proved in the case. The factor of narrowing the subject of proof by excluding certain circumstances from the subject of proof, which entails distortion of the juror’s worldly legal consciousness.

Значение exceptio non adimpletu contractus при понуждении к исполнению встречного обязательства в натуре

The article addresses topical issues of regulation of counter-performance of obligations, formation of exceptio non adimpleti contractus in Roman private law in different periods, comparison of synallagmatic obligations with contractus innominati, burden of proof to seek specific performance under a mutual obligation, the formation of doctrinal positions of German scientists regarding the independence of each of the obligations that arise from the synallagmatic agreement. The court practice of applying paragraph 3 of Art. 328 of the Russian Civil Code and doctrinal positions on the substance of the requirements from the synallagmatic contract are studied. The author proposes a possible alternative model for regulating claims for the fulfilment of counter-obligation (de lege ferenda) and criticises the current model of the absence of claim before the fulfilment of one’s own obligation, which follows from a literal constriction reading of paragraph 3 of Art. 328.

Protection of consumer rights in the practice of the EU court

Introduction. The paper highlights the issues of implementation of consumer protection mechanisms at two hierarchically subordinate levels – international and national. It is given the generalization of separately analyzed cases illustrating the proper practical implementation of consumer protection at the level of the EU Court of Justice. It is provided a generalized view of how theoretical consolidation of the rules meets the requirements of the present. The purpose of the paper is to present the practical results of the analysis of the European consumer protection system at the supranational and national levels of the EU. To do so, the following tasks need to be accomplished: to define the legislative regulation of European consumer policy and its basic principles, to outline the procedure for legislative regulation of consumer issues by the EU supranational institutions, to analyze the case law of the EU Court of Justice and to identify further trends in legal regulation in this area. Results. It is emphasized that it is the European Union that serves as a priority for the national systems of its member states. It is found that the States clearly follow the principles enshrined in certain Directives, but often face difficulties in interpretation, since not all the rules have been implemented in accordance with the fluidity of the modernized world, and therefore there is a need to apply to the Court of Justice of the European Union for a broader explanation. Despite certain difficulties, new mechanisms are increasingly being introduced to ensure the effectiveness of consumer protection at the international level. In particular, the doctrinal positions of individual scholars play an important role, which, in turn, are implemented in practice. Conclusion. It is noted that it is important to harmonize the national legislation of the Member States and the European legislation, since only then can the consumer protection sphere be properly regulated. In general, it is noted that the issue of building and maintaining consumer confidence in the market is a key one for European consumer policy. It cannot be ensured in the presence of unfair, aggressive and openly fraudulent trade practices, so the system must have a sufficient range of effective tools, both state and non-state, to prevent them.

Проблематика характера взаимной связи налогов и специальных налоговых режимов: к вопросу определения правовой природы и сущности

The need to improve existing and develop new special tax regimes determines the need to study the issues of the legal nature and essence of such, their correlation and (or) connection with other tax and legal phenomena (primarily taxes). The aim of this article is to determine the nature of the mutual relationship between taxes and special tax regimes (including addressing the issue of the correctness and scientific permissibility of direct comparison of general, special, and preferential tax regimes). The research was conducted relying on the formal-legal method supplemented by the systemic method. The lack of unified normative and doctrinal positions highlights the pressing need for further scholarly inquiry into this subject matter. Moreover, the author’s assertion regarding the inadmissibility of equating taxes and special tax regimes is compellingly substantiated, emphasizing the distinctiveness of the latter as a tax and legal phenomenon of higher organizational complexity. Special tax regimes, as elucidated, transcend mere tax obligations or mandatory payments, warranting careful consideration and refinement in future tax policy and legal frameworks. This nuanced understanding is essential for fostering effective governance and equitable taxation practices in modern societies.

Criminal law assessment of robbery as a minor act: analysis of judicial practice

Subject of research: more than 20 judicial decisions on the termination of criminal cases and acquittals, as well as the legal positions of the Constitutional and Supreme Courts of the Russian Federation, were chosen as the subject of the study. Purpose of research: is to identify scientifically based criteria for the insignificance of robbery based on judicial practice. Methods and object of research: the study used methods of formal legal analysis, generalization and systematization of the regulatory framework and doctrinal positions. Main results of research: was the development of objective criteria for the insignificance of robbery, taking into account both legal and socio-economic aspects. The conclusions of the study suggest ways to improve law enforcement practice and can serve as a basis for adjusting legislation in the field of crime qualification.

"СОВРЕМЕННОЕ СОСТОЯНИЕ ЭНЕРГЕТИЧЕСКОГО ЗАКОНОДАТЕЛЬСТВА РЕСПУБЛИКИ УЗБЕКИСТАН И ПРАВОВЫЕ ВОПРОСЫ ЕГО СОВЕРШЕНСТВОВАНИЯ "

"This article analyzes the current state of energy legislation of the Republic of Uzbekistan and legal issues of its improvement. The main directions of state energy policy at the present stage and issues of further improvement of energy legislation are substantiated by scientific and legal conclusions. The author pays special attention to the definition of such concepts as “energy,” “alternative energy sources,” “solar energy,” “wind energy,” and “biofuels.” It is established that the characteristic feature of these relations is the transitional periodicity of legal possession of energy as an object of the legal sphere. Therefore, legal relations are regulated by a complex of legal norms related to ecology and energy. The conclusions of the article are based not only on the analysis of the legal framework of the Republic of Uzbekistan but also on the doctrinal positions of foreign experience. Taking into account the peculiarities of the regulation of legal relations related to energy in the Republic of Uzbekistan, the author emphasizes that the existing definitions in the practice of law application, based on the considered examples and terms, are not unique. Therefore, he draws attention to the need to unify the definition of the term “energy resources” in the legal norm for a unified understanding of this phenomenon. The article analyzes the general features of the energy legislation of the Republic of Uzbekistan and develops conclusions and recommendations that can be used in law enforcement and scientific activities to improve energy legislation. "

Controversy and Voluntarism Among the Elite: An Ethnographic Study of the Sufi Community in Cibingbin, Indonesia

This article explores the intricate dynamics among Sufi elites in Cibingbin, highlighting the significant tensions within this distinctive group. The Sufi community is deeply divided, engaging in intense debates and frequent confrontations with each other. Central to these disputes are issues surrounding the Nasab dialectics, an ideology associated with the habaib that stresses the concept of voluntarism among the Sufi elite. These internal debates are most intense between the habaib faction, known as Kanzus Sholawat Cibingbin, and the local religious authorities, referred to as Kyai Kampung. As each group digs in and solidifies their doctrinal positions, the struggle for dominance in the public sphere becomes more pronounced. This phenomenon, which aligns with Habermas's theories regarding the legitimacy of power in public spaces, has unexpectedly fueled the momentum of the Laskar Walisongo movement. Despite the apparent weakening of the habaib's defensive stance, both the habaib and the Kyai Kampung have maintained considerable local influence. The ongoing power struggle highlights the complex interplay between belief, influence and control within this segment of the Sufi community. Ultimately, they have made public spaces an arena not just for collective imagery, but also the most vital part of the organisation’s sustainability or spirit.

Doktrin Res Ipsa Loquitur Pada Perlindungan Konsumen

Economic growth in Indonesia can be encouraged by increasing consumer confidence. In the event of a violation of consumer rights, consumers have the right to claim compensation from business actors, but in fact, consumers and business actors have an unequal position. Consumers have difficulties in terms of civil evidence. An imbalance in the distribution of the burden of proof is an injustice for the disputing parties. The research was conducted using normative juridical research methods and comparative research methods, namely research methods carried out by studying secondary data and library materials and approaches to comparing the laws of one country with the laws of other countries. This research was conducted through library research and field research to enrich the sources. The results of further research are described in descriptive writing that relates the problem to legal theory in evaluating the practices carried out by research objects. There are 2 conclusions from the research results. First, that the position of the re ipsa loquitur doctrine in the principle of proof in consumer protection cases is closely related to the evidence imposed by judges on business actors as parties who have responsibility for the products consumed by consumers as well as those who suffer less losses to provide more justice for consumers. and in line with the principle of proof contained in UUPK and the second conclusion is that the res ipsa loquitur doctrine can be applied in cases of consumer protection if it fulfills the elements that are the requirements of the application of the re ipsa loquitur doctrine.

Mullā Ḳābıż & the Question of Prophetic Superiority

Abstract Ibn Kamāl Pāshā (d. 940/1534) played a key role in defending key doctrinal positions in his capacity as Ottoman Shaykh al-Islām, the most famous of which is undoubtedly his refutation of Mullā Qābiḍ (d. 933/1527). Qābiḍ (tr. Kabız), whose credentials are as unknown as Ibn Kamāl’s are known, is said to have propagated the superiority of Jesus over Muhammad, an obscure notion rarely found in the intellectual history of Islam. His ideas were eventually brought to the attention of scholarly circles, leading to him being tried before the Imperial Council by Caliph Suleymān I (d. 973/1566). Noting the inability of some scholars to defend the orthodox position regarding the superiority of Muhammad, Suleymān I called upon Ibn Kamāl to provide a robust defence on behalf of the Empire. Although unable to respond to Ibn Kamāl’s reasoning, Qābiḍ nevertheless maintained his position and thus sealed his fate for good. Only a handful of studies have been carried out on Qābiḍ. This article intends to contribute to the discussion he and his trial have sparked by translating a key epistle written by Ibn Kamāl after the trial and entitled: Risāla fī ʾAfḍaliyyat Muḥammad. Knowing that the details of the controversy between him and Mullā Qābiḍ escape us, this treatise by Ibn Kamāl gives an insight into his thinking on prophetology and his implementation of scriptural, canonical and exegetical sources. It also provides a convenient overview of the exchange he probably had with Qābiḍ.

On the admissibility of usucaption of a non-separated premises, as a new perspective on the institution of usucaption of premises

The purpose of the article is to consider the possibility of acquiring a separate ownership right to an undivided premise or a part of previously divided premise through adverse possession (usucaption). This subject demands a fresh perspective, given the consistent unified stance of both the judiciary and legal scholars, who have traditionally considered such adverse possession as inadmissible. The examination gains particular significance in light of the approaching 30th anniversary of the enactment of the Act of 24 June 1994 on the ownership of premises, as this may result in an increase in litigation related to adverse possession claims concerning entire premises or their parts. Contrary to the long-standing established position of both jurisprudence and legal doctrine, the article demonstrates that acquiring separate ownership rights to previously undivided premises, as well as to parts of previously divided premises (such as rooms, auxiliary spaces, or ancillary facilities), is indeed feasible through usucaption. In both cases, compliance with the requirement of independence as defined in Art. 2 sec. 2 of the Act on the ownership of premises is crucial since only independent premises may be the subject of separate ownership. The argument presented in the article strongly advocate for the possibility of providing legal protection to possessors of undivided premises or parts of divided premises and for regularizing long-standing factual situations that do not align with the current legal status, which is the fundamental essence of adverse possession.

The mechanism of the social state and the place of the pension system in it: theoretical and legal aspects

The article is devoted to the theoretical and legal study of the role and place of the pension system in the mechanism of the social state on the example of the modern Ukrainian legal experience. Based on the analysis of legislation, doctrinal positions and practice of the Constitutional Court of Ukraine, the author has formulated the own vision of the substantive and ontological core of pension provision. It is demonstrated that pension provision as a set of legal relations and a real legal phenomenon in the substantive and ontological dimension cannot be identified either with the process of providing an individual with a set of certain social and material services (procedural approach), or with a set of measures taken by the State to meet the needs of an individual for adequate material security upon reaching retirement age or due to adverse social circumstances which exclude their opportunities for active participation in economic and social life. According to the human-centred paradigm, the substantive and ontological essence of pension provision is not only the right (legal possibility) to demand from the state a certain level of pension payments in accordance with certain objective criteria, but also the real possibility to receive such payments in the amount that allows a person to maintain a decent existence, to ensure their key needs in life and social environment, avoiding poverty and social isolation.
 The importance of the State’s guarantee of the right to pension as a component of the constitutional right to social protection is substantiated. It has been revealed that the social state implements such a social policy which guarantees not only pension payments, but also their amount, frequency of receipt and indexation in accordance with the established procedure, which ensure that every person entitled to a pension has an adequate standard of living, the stability of the established standards of pension provision, the guarantee of this provision, the predictability of the legislative policy of pension provision (in accordance with the concept of legitimate expectations), and the appropriate law enforcement policy of pension provision. It has been proved that in the context of the social state concept, the problem of legislative fixation of the optimal model of pension provision (which would take into account the issues of determining the amount of pension provision, their ranking in various, including special, laws, methods and pace of pension indexation, etc.), taking into account the economic situation of the State and the compliance of such provision with the task of realisation of basic human needs for decent living conditions, requires careful consideration (in accordance with the concept of “space for consideration”). The article emphasises that compliance with the constitutional principles of the social state requires legislative regulation of pension provision on the basis of equity and proportionality, taking into account the State’s obligation to ensure decent living conditions for every citizen of Ukraine.

Акты реализации прокурором функции уголовного преследования в стадии возбуждения уголовного дела по нормам УПК Республики Таджикистан и УПК Российской Федерации

The subject of comparative legal analysis in this work is the ambiguous norms of the criminal procedure law of the Russian Federation and the Republic of Tajikistan regarding the procedural status and real powers of the prosecutor to carry out the function of criminal prosecution at the stage of initiation of a criminal case. Analyzing the norms of the law, the positions of the national doctrine and directly the patterns of activity carried out at this stage, the author discusses the main problems, conflicts of practice, gaps in the law, suggesting measures to remove contradictions and optimize practice.

Some Aspects of Understanding the Contract

The contract as a complex, multifaceted category is used not only in jurisprudence, but also in other doctrines, teachings, and in the direct practical activities of various subjects. At the same time, if viewed from a legal point of view, the contract (as a certain agreement that meets specific criteria) permeates almost all spheres of public relations under the influence of law. The contract occupies a significant place in the regulation of relations under the influence of private law norms. The concept of a contract is repeatedly disclosed by the legislator in various normative legal acts. However, even within the framework of one branch of law (for example, civil law), the mention of a contract may be disclosed in various senses. Doctrinal points of view also reveal a wide range of multiple approaches to understanding the treaty. This circumstance indicates the absence of a single clear understanding of the contract neither in the law nor in the doctrine, which causes some problems in the framework of law enforcement activities. The goals and objectives of the study are to identify legislatively defined and doctrinal positions regarding the concept of a contract (legal and individual). The study was conducted using a comparative legal method, which made it possible to study the position of the legislator regarding the concept of contract in such branches of law as civil, labor, family, etc. In addition, formal logical and systematic methods were used in the work. The result of the study is a brief comparative legal analysis of the provisions of legislation containing norms on the regulation of legal relations between the parties through a contract. The legislator has not clearly expressed his position on the legal nature of individual contracts (in particular, employment and marriage contracts), which gives rise to their ambiguous interpretation, causing difficulties in law enforcement.

Saskatchewan law as a solution to the problem of informal wills in European countries?

Abstract This article is a presentation of the possible future of the law on the testamentary formalities, particularly in countries that adhere to very strict formal requirements. The authors present the positions of doctrine to date and conclude that the Canadian legislation in the province of Saskatchewan may offer a remedy to the problem of preparation of wills in contravention of the rules in the form of wills. In their opinion, the Canadian solution is a ready-made solution for many European legislators who would like to make their succession laws more flexible. The authors propose the wording of a provision that could be incorporated into the various legislations of European countries for this purpose.

Как не следует пояснять и тем более исчислять уголовно-процессуальные сроки

The subject of the review is rules for correct calculation of criminal procedure terms as a special type of procedural guarantees established to support and institute in general criminal proceedings of Russia, interests and rights of private stakeholders that are process participants. The author studies positions of the criminal procedure doctrine on this matter, gaps in the applicable laws and regularities of the judicial and investigative practice and gives specific examples to show serious conflicts that may arise as a result of incorrect understanding and calculation of a certain variation of terms in the current criminal procedure.

К вопросу о некоторых аспектах примирения с потерпевшим как основания для освобождения от уголовной ответственности

The article examines topical issues of legislation, theory and practice related to the regulation and implementa-tion of the institution of exemption from criminal liability on the example of reconciliation and compensation for harm caused as a result of committing a crime. Analysis of the current state, certain problems and prospects of this institution through the prism of correlation of reconciliation and compensation for the harm caused among themselves and with other conditions of exemption from criminal liability, the current law enforcement practice and existing doctrinal positions in this area are considered. The work uses dialectical, systemic, analytical, comparative legal and other methods. Based on the conducted research, the author suggests and substantiates specific directions for solving the identified problems, aimed at improving the effectiveness of the institution of exemption from criminal liability in general and its conditions such as reconciliation and compensation for harm, in particular.