Enforcement Problems Research Articles

Methods of protection and discretionary powers in administrative jurisdiction: problems of law enforcement

The article is devoted to the problems of the court’s discretionary powers in selected defenses that do not inform the law and are more effective. The article analyzes the peculiarities of the court going beyond the legal requirements and choosing other methods of protection than those requested by the requester. The purpose of the article is to explain the content and inter- judicial discretion in the context of the principle of the rule of law when deciding on the court’s choice of other ways of protecting rights and interests that are not legally binding and that are more effective.
 The article draws attention to the fact that the actual issue of judicial practice remains the problem of choosing methods of protection other than those requested by the person whose right has been violated. At the same time, it should be noted that the CAS of Ukraine and other legislation do not establish such limits. It is noted that when going beyond the limits of claims and choosing other methods of protection, the court must comply with the principles and international standards of judicial proceedings, the requirements of material and procedural law, the specifics of a specific case, put forward claims and their justification, administrative-legal status and powers of response, position the plaintiff , moral norms and other factors. At the same time, the administrative court must be guided by the principle of the rule of law, proceed from the goals and objectives of administrative proceedings, use judicial practice, reflect the analogy of the law or the analogy of the law. To conclude that the methods of protection of the subjective rights and interests of individuals in administrative proceedings are differentiated in the material- legal (consolidation in the law) and procedural component (judicial discretion). At the same time, applying judicial discretion and making discretionary decisions of the judge, guided by the rule of law, his reasoned choice between alternative types of ways to protect the violated subjective right or interest.

«Trading in influence» or «abuse of influence» is a problem of qualification

The article analyzes the legislative tools designed to combat corruption, Art. 369-2 of the Criminal Code of Ukraine «Abuse of influence» occupies a special place. On the one hand, this prohibition is actively demanded in practice, on the other hand, its inclusion in the Criminal Code increased the casuistic nature of the latter, partially created an excess of legislative description of criminal behavior related to corruption, and due to non-compliance in this case with the principle of legal certainty, seriously complicated the application of Criminal Law of Ukraine in practice.
 The criminal offense provided for in Art. 369-2 «Abuse of influence» of the Criminal Code of Ukraine is quite difficult to understand and apply. In addition, there are certain problems with the proper criminal-legal qualification of criminal behavior at the junction of such corruption components of criminal offenses as Art. 369-2 and Art. 368 «Acceptance of an offer, promise or receipt of an illegal benefit by an official», Art. 368-3 «Bribery of an official of a legal entity of private law, regardless of the organizational and legal form», Art. 368-4 «Bribery of a person providing public services» of the Criminal Code of Ukraine.
 The norm of Article 369-2 of the Criminal Code of Ukraine is the result of the implementation of Article 12 of the Criminal Convention of the Council of Europe on the fight against corruption and Art. 18 of the UN Convention against Corruption. However, this implementation is far from perfect, which always creates problems for law enforcement.
 The origin of the concept of «abuse of influence» is interesting. Most likely, it is the fruit of creativity of the Ukrainian legislator. After all, the concept of «trading in influence» is used in international acts, which in translation means trading in influence, but not abuse.
 Thus, the specified composition of the criminal offense was permanently problematic in qualification and, accordingly, in understanding. For a long time, difficulties arose with the application of the note, which has lost its validity, and, accordingly, with the definition of the person authorized to perform the functions of the state. And although this problem was later settled by the legislator, the question of the nature of the influence still remains debatable: whether it must necessarily be connected with the official position or whether it is possible to use friendly, family and other ties - the appropriateness of fixing as a separate qualifying sign of extortion, as well as the type of subjects of the specified crime.

Rules or capacity for the EU’s fiscal future? From Werner and McDougall to the present

PurposeThe COVID19 crisis has thrown wide open the debate on Europe’s Economic and Monetary Union’s (EMU) future. Next Generation EU (NGEU) has broken the stalemate over a central fiscal capacity. The open question is whether NGEU is a one-off or a first step. The suspension of the Stability and Growth Pact has given new urgency to the debate on reforming EMU’s fiscal rules.Design/methodology/approachThere is no debate as yet about how these two prospects relate to each other. This paper argues that a permanent fiscal capacity and revised rules should be seen as alternatives.FindingsThis study makes two claims: first, a fiscal capacity renders a reformed pact unnecessary and second, that is an optimal solution politically. A fiscal capacity would provide an efficient asymmetric shock absorber and therefore reduce the need for pre-emptive action against negative cross-border externalities. It would also provide an abundant supply of an EU-wide safe asset around which to structure the EU’s financial system, thus rendering unnecessary the backstopping of member states' debts.Originality/valueThis would restore democratic accountability while eliminating moral hazard and enforcement problems.

Regulatory Models in E-Sports

The paper provides an analysis of regulatory models in e-sports with the purposeof identifying regulatory gaps and ways to address them. The methodology of thestudy embraces the general philosophical method (analysis, synthesis, logical andsystemic methods) and specifically legal methods (including formal legal analysis).The study comprises two stages: firstly, examination of regulatory gaps in e-sportsfrom the doctrinal perspective; secondly, case studies arising in the course of and/orin connection with e-sporting events and causing enforcement problems. The authorsidentify the following doctrinal gaps: nature of relationship between the concepts ofcomputer sports and e-sports, and other related concepts involved in virtual realitycontests; delimitation of the public and private spheres in the legal regulation ofe-sport; feasibility of e-sports law as a complex branch of sports and digital law; tworegulatory approaches/models: self-regulation of e-sports by approving gamingrules, gaming codes of conduct etc. versus external regulation, with the existing legalinstitutions and legal provisions applicable to disputes at the nexus of virtual andactual reality; rules and methods of applying real law to virtual reality; limits of applyingsports provisions and rules to relations in e-sports.The authors identify the followingenforcement gaps: legal status of e-athletes from the perspective of labour and civillaw; taxation of the income gained in the course of or in connection with an e-sportingevent; legal status of computer games as an object of civil law; legal regulation ofgame streaming; legal status of book-makers in the e-sports market. Based on thefindings, the authors conclude the explosive growth of the computer game marketargues in favor of detailed regulation of legal relations in e-sports.

Personal Data in the Mechanism of Criminal Law Protection

Relevance. Ensuring the effective protection of an individual's personal data is of high and enduring importance. Despite the efforts made, in Russia the situation in this regard is deteriorating every year more and more incidents with the leakage of personal data of millions of citizens occur. All this not only generates distrust in the efforts of the state to build a digital economy and e-government, but also acts as a powerful determinant of a number of other crimes (primarily against property).The purpose is to obtain new scientific knowledge about the features, problems and prospects of the criminal law protection of personal data of an individual.The objectives of the study is to identify the problems of implementing the mechanism of criminal law protection of personal data of citizens.Methodology. The methodological base of the research is made up of general scientific and particular scientific methods of cognition of reality, such as analysis, synthesis, induction, formal-legal, abstract-logical and others.Results. In the course of the study, statistical data on the dynamics of infringement on personal data in Russia, law enforcement practice available in the public domain, doctrinal sources and analytical materials were analyzed, interviews were conducted with specialists. Taken together, this made it possible to formulate original provisions that develop the domestic theory of criminal law, to develop recommendations aimed at overcoming the problems of law enforcement in cases of infringement of personal data.Conclusions. Digitalization has led to an increase in social tolerance for violations in the field of inviolability of personal data and privacy. It seems promising to implement a model of differentiation of criminal liability depending on the number of victims of the disclosure of personal data. The mechanism of criminal law protection requires improvement in terms of the development of biometric data technologies. The significance of such personal information requires a differentiated approach to establishing responsibility for illegal actions in relation to biometrics.

Criminalization as an element of criminal law policy in the field of fair competition protection

The object of the study is the criminal law policy in the field of protection of fair competition, namely the criminalization of violations of antimonopoly legislation as its element. The subject of the study is normative legal acts providing for the protection of fair competition, legal acts justifying the priority directions of modern criminal law policy in the field of competition protection, principles of criminalization, statistical data of the antimonopoly authority and the Supreme Court of the Russian Federation, as well as scientific research, including dissertations, scientific publications on criminal law policy in general, issues criminalization, general theoretical criminal law phenomena, criminal liability for certain types of crimes. The purpose of the work is to study the criminalization of violations of antimonopoly legislation, taking into account the principles of criminalization developed in science in order to justify the introduction of a criminal law ban on their commission. The research methodology is based on general scientific and private scientific methods: system analysis, logical, comparative, formal dogmatic, historical methods, classification method. The novelty of the study lies in the fact that the analysis of the set of criminalization principles made it possible to establish the validity of criminalization of anticompetitive acts, on the basis of an economic approach, to conclude about the ratio of public danger of types of anticompetitive acts, potentially identical risks that they carry for the economic security of the country; by analyzing the practice of applying criminal law norms in the activities of law enforcement agencies, it was possible to identify the problems of law-making and law enforcement, which had not previously been carried out in the science of criminal law. The findings can be especially useful in legislative, scientific and educational activities. The result of the work is a conclusion about the validity of criminalization of anti–competitive acts, the need to improve the Criminal Code of the Russian Federation, taking into account the prohibitions of a special law - the Federal Law "On Protection of Competition". At the same time, it was concluded that there are problems both in lawmaking and in law enforcement, which requires changing the relevant provisions of the Criminal Code of the Russian Federation in order to increase the effectiveness of countering anti-competitive crimes.

Prohibition of the glorification of the crimes condemned by the verdict of the International Military Tribunal of the European Axis Countries: problems of interpretation and law enforcement

The subject of this study is the criminal law prohibition of the approval of crimes condemned by the verdict of the International Military Tribunal of the European Axis countries. This act of glorifying of such crimes is an element of the objective side of the corpus delicti provided for in Article 354.1 of the Criminal Code of the Russian Federation. The methodology of the research consists of such methods as formal-legal, logical, systematic, as well as the method of analysis. The author emphasizes the importance of considering the aspects of the qualification of this act in the context of the development of the information society, since due to the active processes of digitalization, the present crime is often committed in the Internet environment. Special attention is paid to such a feature of the subjective side of the crime as its goal: the author argues about the need to consolidate the goal as a constructive feature of the subjective side of the considered corpus delicti. The novelty of this study lies in the fact that this norm is analyzed in relation to the constitutional principle of freedom of speech. The author comes to the conclusion that in this matter it is advisable to be guided by part 3 of Article 55 of the Constitution of the Russian Federation, according to which constitutional rights and freedoms can be restricted only to the extent necessary to protect the constitutional foundations and ensure the security of the state.

Legal bases of self-protection of labor rights by employees

The article examines the place of self-protection of labor rights by employees in Russian labor law. Particular attention is paid to the isolation of the institute of self- protection from the basic principles of labor law, which entails a number of law enforcement problems. In this regard, proposals are being put forward for the harmonization and development of this method of protecting employees’ labor rights.

On the Problems of Counteracting Insurance Fraud

Insurance fraud is a wide-spread crime in Russia. This type of publicly dangerous behavior is characterized by a variety of methods, forces and means. The specialists of the Financial University under the Government of the Russian Federation conducted research aimed at identifying gaps in the normative legal regulation and other factors contributing to unlawful practices in the insurance market, and at developing countermeasures. The research made it possible to determine the most common ways of performing insurance fraud, to highlight modern trends of using cutting-edge technologies, a trend for the organized forms of committing criminal actions, and to identify key factors responsible for the insufficiently effective policy of counteracting insurance fraud. The latter include: problems of law enforcement, including those connected with the limited opportunities for the insurance companies to obtain necessary information; discrepancy between the time limit set for the government bodies to provide information at the request of an insurance company and the established time limit of making a decision regarding an insured event; factual lack of interest from the law enforcement bodies in either accepting documents for further examination and making a decision on the initiation of a criminal case, or in collecting the evidentiary basis through their own efforts; lenient legislation against insurance fraudsters, and an opportunity to terminate criminal prosecution at the stages of inquiry, investigation or court proceedings provided by it. The research results allowed the authors to formulate some suggestions on amendments to the legislation of the Russian Federation aimed at suppressing fraudulent actions at the insurance market, as well as other initiatives of organizational, institutional, information character.

Problematika Penegakan Qanun Jinayat di Aceh

After the enactment of Qanun No. 6 Year 2014 on (Qanun Jinayat), several problems arose, both internal and external. After the enactment of Qanun No. 6 of 2014 on (Qanun Jinayat), several problems arose, both internal and external problems. Internal problems arise with a variety of problems, facilities and infrastructure are not yet complete, the emergence of polemics about the place of execution of flogging, socialization is still considered insufficient, uneven resolution of Qanun Jinayah enforcement problems in each district / city, the emergence of differences in interpretation in Jinayat cases resolved by Jinayat law and Qanun fostering customary law, between one gampong and another gampong differ in the type of customary sanctions on khalwat, varied in the type of sanctions and law enforcement. More specifically, the internal problems faced in the implementation of Qanun Jinayat in Aceh are from the law enforcement apparatus itself (Wilayatul Hisbah, Police, Attorney General's Office, and Syar`iyah Court) and traditional leaders who have different perceptions of Qanun Jinayat. This not only leads to variations in application, but also often obscures the legal certainty desired by a regulation. The author conducts this research using empirical juridical research method which is a legal research method that uses empirical facts taken directly from the object of research in this case including the Community, University, and Islamic Shari'at Office of Aceh Province either by conducting interviews or direct observation. and with conceptual and statutory approaches using normative juridical methods. The data source used is data obtained indirectly through literature study. The legal materials obtained are then analyzed using descriptive-qualitative analysis to obtain conclusions that can be scientifically accounted for. Keywords: Law, Enforcement, Aceh.

Replacing the Unserved Part of the Punishment with a Milder Type of Punishment: The Practice of Application and Ways to Improve

Replacing the unserved part of the sentence with a milder type of punishment as a type of early release from further serving a sentence is relevant in the context of the humanization of domestic criminal and penitentiary policy, as well as in demand by modern judicial practice. This institution performs a number of important tasks to correct and stimulate the law-abiding behavior of convicts, which causes interest in the identified problems of law enforcement of its norms and the search for ways to solve them. The article uses the results of a sociological study conducted by the author from January to May 2023. The aim of the work is to study the practice of applying the replacement of the unserved part of the punishment with a milder type of punishment and to determine ways to improve it. The methodological basis of the study was the empirical method, the statistical method, the comparative legal method, the method of interpretation of legal norms, the methods of formal and dialectical logic. Based on the analysis of scientific literature, the doctrinal positions of scientists, the current regulatory framework, the criminal legislation of foreign countries, statistical data, materials of judicial practice, the results of a sociological study conducted by the author, specific ways are proposed to improve the replacement of the unserved part of the punishment with a milder type of punishment, including additions and amendments to Art. 80 of the Criminal Code of the Russian Federation.

MASALAH EKSEKUSI PUTUSAN HAKIM PENGADILAN TATA USAHA NEGARA

Indonesia as a democracy has a constitutional system that divides power into three parts, namely the legislative, executive and judicial branches to fulfill the principle of checks and balances. The form of control possessed by the judiciary is through a judicial institution which is empowered to provide legal protection and certainty. The State Administrative Court was established as a judicial institution based on Law Number 5 of 1986 with the aim of carrying out a prosperous, safe, peaceful and orderly state life, ensuring the position of citizens before the law and being able to maintain harmony. Balance and Harmony between State Administration Apparatus and Citizens. This research uses normative legal research which is carried out with descriptive analysis methods and uses a qualitative approach. The implementation of judicial proceedings has systematic problems related to the implementation of judicial decisions. Regarding the decisions of the PTUN judges, the problems faced are the enforcement of executions by revoking the KTUN, enforcement problems with forced money, administrative sanctions and problems sending decisions, which are social networks. announced. Currently, the implementation of the Administrative Court judge's decision faces several obstacles, which arise because the implementation of the decision is in the hands of the TUN officials. Some of the problems that arise are not clearly regulated and have a clear legal framework.

Seizure of the property as a measure to ensure the fulfillment of civil law obligations

The subject of this article is the consideration of the seizure of property as a measure applied by the authorized body to ensure the fulfillment of the debtor's civil obligations. The purpose of the research is to study the legal institution of property seizure as a measure to ensure the fulfillment of the debtor's obligations, to identify legal problems in the law enforcement of this instrument, and to propose ways to resolve them. To achieve this goal, the author analyzes the normative legal acts of the Russian Federation regulating the procedure for the application of seizure, explores the legal essence of seizure in civil law relations, identifies the signs of arrest and the differences between arrest and the prohibition of registration actions, considers the legal problems arising from its application. In the research, the author uses such methods as analysis, synthesis, deduction and comparison. The relevance of the article lies in the fact that the use of arrest as a measure to ensure the fulfillment of the debtor's obligations entails restrictions in the exercise of property rights. The unjustified application of property seizure that does not belong to the debtor, creates legal difficulties for a bona fide acquirer in the exercise of property rights, which entails an appeal to the court for the protection of the violated right. Despite the widespread use of seizure as a measure aimed at ensuring the fulfillment of the debtor's obligations, there is no legal concept of this type of security in the legislation of the Russian Federation. The consequence of this circumstance is the application under the guise of seizure of other measures related to the limitation of the of property rights, entailing the incorrect application of the norms of substantive and procedural law. Based on the results of the study, the author forms the doctrinal concept of seizure as a measure to ensure the fulfillment of obligations and makes proposals to protect the rights of bona fide property owners.

EVALUATING PUBLIC COMPLIANCE WITH WILDLIFE CONSERVATION LAW IN WUHAN, CHINA

As a result of the outbreak of COVID-19 in mainland China, the governments expedite the legislation of the Wildlife Protection Law (WPL) by proposing a comprehensive prohibition on wildlife eating and trading in the latest WPL due to the potential association between the outbreak and wildlife. However, the prohibition could affect the current social-economic system, leading to a void of legislation due to the disobedience of laws in society. Public readiness toward the law has a strong relationship with expected obedience to it. Therefore, the objectives of this study are to assess the two components of the readiness knowledge about the law and the readiness toward the actions potentially contradicting the latest WPL. Another objective is to collect participants' opinions and reasons on whether they think the latest WPL is difficult to enforce. By selecting the epicenter Wuhan as a study site, voluntary response sampling was used to distribute the questionnaire online. The data obtained from 410 respondents show that the citizens in Wuhan have average knowledge about the latest WPL but are unaware of the definition of wildlife. Based on the Mann-Whitney test, the study found no significance between gender and knowledge, but it exists in all other comparisons. Moreover, the significance only exists between readiness scale and age groups. The difficulty in enforcing the latest WPL underlines the problems in enforcement, awareness, demand, and society aspect, while on the opposite, respondents highlight the lesson from the pandemic and belief in the governments. In conclusion, citizens in Wuhan show a medium readiness toward the latest WPL, which is vital to design optimal legislation.

Solution of Disputes in Civil Relations Involving a Foreign Element: Law Enforcement Problems

Solution of Disputes in Civil Relations Involving a Foreign Element: Law Enforcement Problems

Всероссийская научно-практическая конференция «Введение пробации в Российской Федерации: взаимодействие государственных органов и общественных организаций» (10 марта 2023 года)

On March 10, 2023, the All-Russian Scientific and Practical Conference “Introduction of Probation in the Russian Federation: Interaction of state bodies and public organizations” was held on the basis of the Main Directorate of the Ministry of Justice of the Russian Federation in St. Petersburg and the Leningrad Region. It was dedicated to the Federal Law «On Probation in the Russian Federation», adopted on February 6, 2023. The Academy of the Federal Penitentiary Service of Russia and the St. Petersburg Theological Academy also co-organized this event. A feature of the event was a wide range of analyzed law enforcement, legal and theoretical problems that already take place depending on the specifics of various regions of our country, and will also arise in the near future in the interaction of state bodies and public organizations in the context of the use of all types of probation (penitentiary, executive and post-penitentiary).

Involvement of Prosecution Authorities in the Judicial Review of Cases on Challenging of Acts of Prosecutor's Response: Problems of Law Enforcement in Terms of Determination of the Fact of Interference of the Prosecutor's Office with Business Activities

Involvement of Prosecution Authorities in the Judicial Review of Cases on Challenging of Acts of Prosecutor's Response: Problems of Law Enforcement in Terms of Determination of the Fact of Interference of the Prosecutor's Office with Business Activities

An Individual as a Foreign Agent: The Legal Regulation

Foreign interference in Russia’s internal political processes is almost always disguised as the constitutional right of citizens to ideological diversity, forming public opinion, provoking panic, as well as influencing the attitude of society towards governmental authorities. The influence of individuals who form public opinion on the basis of their recognition and pseudo-authority has significantly increased. A large-scale spread of social networks has caused a dramatic increase in the popularity of artists, musicians, public figures, whose statements can encourage society to make certain decisions. The study is conducted in order to identify signs of foreign influence, as well as criteria for classifying individuals as foreign agents. Based on a comparative analysis of the legislation on foreign agents in Russia and the United States, the authors establish the conditions for the need to restrict the constitutional rights of citizens in order to maintain a balance of private and public interests. In the preparation of the article, formal and logical methods were used, as a result of which the authors analyze socio-legal phenomena that allowed to identify the relationship between increased foreign influence and consolidation of domestic legislation on foreign agents as a response. The authors come to the conclusion that in order for an individual to be acknowledged as a foreign agent under Russian law, three elements are needed: the presence of foreign influence, the participation of an individual in political activity and direct or indirect influence on state bodies or state policy. At the same time, the main problem of law enforcement is the distinction between real foreign agents and unpatriotic citizens who actively oppose the policy of the state, which can be used «blindly». In this regard, a wide application of the provisions of the Law on Foreign Agents is justified, and the assignment of the status of a foreign agent is subject to individualization.

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.

Difficulties and Optimization Paths of the Application of "Cross-default" Clause in Chinese Real Estate Corporate Bonds

Since the second half of 2021, the collapse of the Chinese real estate market has resulted in a large number of bond defaults by real estate companies. Among many constraint clauses, the "cross-default" clause has caused considerable problems in triggering and enforcement due to its late introduction in China and the lack of guidance on its application. This paper analyzes the difficulties in the application of the real estate "cross-default" clause and proposes optimization paths based on the differences and similarities of regulations between domestic and foreign markets. This will help Chinese real estate companies to use the "cross-default" clause more effectively and protect the interests of bond issuers and holders. The paper adopts the method of legal regulation analysis and case analysis, focusing on the actual application of the "cross-default" clause in the Chinese market including unclear triggering conditions and a lack of effective enforcement methods. The paper proposes optimization plans including strengthening government supervision, improving laws and regulations, optimizing bond issuance mechanisms, and enhancing credit ratings of bond issuers. The significance of the research lies in providing practical recommendations and measures to improve the operation mechanism of the Chinese bond market, and to provide reference and guidance for Chinese real estate companies in risk management.