Protection Of Subjective Rights Research Articles

ON THE PROBLEMS OF STATE FORMS OF PROTECTION OF SUBJECTIVE RIGHTS OF PARTICIPANTS IN BANKING LEGAL RELATIONS

The article is devoted to the study of forms of protection of subjective rights, their implementation at the national level in the framework of banking relations. The article analyzes the forms of protection of private and public rights, ways to protect civil rights, the functions of banking relations, the object and subject composition of banking relations, scientific, theoretical and practical recommendations for improving the application of law on banking relations.
 The authors draw attention to the imperfection of domestic government regulations in terms of forms of protection of subjective rights of participants in banking relationships. Based on the analysis of regulatory sources, it is concluded that the form of protection of subjective rights of participants in banking relations is a statutory procedure for protection of subjective rights in banking or banking operations (subjective law is aimed at public interest, sociocentric), its implementation takes place by one or another jurisdictional body depending on its nature, the content of which is both the activities of the state, its authorized bodies, public associations, and the ability of the person to exercise his right to protection in case of violation of subjective rights and legitimate interests, including, seek protection from the competent state authorities.
 There is a need for normative consolidation of the concept of forms of protection of subjective rights of participants in banking relations.

РЕФОРМА ГРАЖДАНСКО-ПРАВОВЫХ ОБЯЗАТЕЛЬСТВ В РФ И ЕЕ ВЛИЯНИЕ НА ИНСТИТУТ ВОЗМЕЩЕНИЯ ВРЕДА (УБЫТКОВ)

Introduction: of all the instruments of protection of subjective property rights, the fundamental role belongs to the institute of indemnification, whose regulatory framework needs to be clarified. The purpose of this paper is comparative description of the important legal aspects of the main type of property liability. In accordance with the purpose, the following objectives were set: to determine the extent to which legal provisions of general regulations on obligations laid down in the Civil Code of the Russian Federation should or can be applied to claims for damages; to formulate the proposals for improving the indemnification court practice. Methods: the methodological framework of the study consists of specific scholarly (special legal, comparative legal) and general scholarly (problem-theory, teleological, and system) methods of analysis. The main trends in the development of the institute of liability and the debatable aspects reflected in the Russian and foreign documents were studied with the use of the problem-theory and system analysis methods. Results: being a summary overview of the available knowledge and comparative regulatory material, this paper allowed us to articulate the ideas aimed at improving the fundamental principles of legal regulation of relations in the sphere of protection of subjective rights, in particular indemnification. Discussion: indemnification is a developing major institute of civil law, invariably attracting the attention of scholars around the world. Lately it has taken on special significance and some of its aspects have become a focus of a separate field of scholarly discussion. Many Russian scholars have written about indemnification in a comparative aspect: О. N. Sadikov, V. V. Baibak and others [2, 15]; this paper focuses on the reform of Russian law of obligations and the new provisions of the Civil Code of the Russian Federation of March 8, 2015 and reveals the consequences of the reform for the institute of damages, discussing this topic in detail as a separate standalone issue. Conclusion: we hope that this paper will contribute to further discussion in the civil law doctrine of the ideas and conclusions presented.

Likumības princips civilprocesā: formālas lietu vešanas kārtības pamats civillietās

Rakstā tiek apskatīts jautājums par likumības principa izpausmi un saturu civilprocesā. Pētījumā tiek aplūkoti likumības principa procesuālie un materiāli tiesiskie jautājumi. In the article, the author examines the matter of the expression and content of the principle of legality in civil procedure, more specifically focusing on the procedural and substantive problems of the principle of legality. Civil procedure is universal as a compulsory form of protection of subjective rights or, in other words, civil procedure is a procedure for compulsory exercise of civil rights, which is reduced to a set of norms that determine the type of actions of both existing legal protection institutions and persons who use this protection or are involved in it in any other way. Legality plays an important role in this regard. Legality means a state of life of the society which, firstly, has a legal framework, which is not logically contradictory and which generally meets the objective needs of this society and, secondly, natural and legal persons respect and follow the legal norms adopted. In civil procedure, this is not only a principle, but also one of the aims of legal proceedings. According to its content, the principle of legality includes, firstly, the requirement that the courts apply the norms of the substantive law correctly and carry out procedural actions in accordance with the legal norms; secondly, the requirement that other participants of the procedure comply with the procedural and substantive legal regulation when adjudicating and considering civil cases in court. Thus, the principle of legality includes procedural and substantive components. The aim of the article is, by analysing the moral-legal content of the principle of legality, to evaluate the aspects of its application. Material and methods used in the study for the empirical basis of the research include scientific works and collections of articles, publications in periodicals and primary sources, laws, internet resources, as well as other publicly available information. Analytical, inductive and deductive research methods have been used in the research.

Особенности защиты субъективных прав при конфискации имущества

The purpose of the research is a general theoretical examination of confiscation as an intersectoral category of law, as well as revealing and scientifically-based solving urgent problems that arise in the field of protection of subjective rights in the case of the compulsory seizure of illegally possessed property. The main research methods are the following: structural and systematic, formal and legal, comparative and legal methods, logical analysis and synthesis, as well as the collection of information through the study of monographs, textbooks, materials of judicial practice on the subject under study. The article examines the features of the confiscation of pledged property. The authors make a conclusion that it is inadmissible to use the institution of compulsory succession in the case of the seizure of illegally possessed property. The use of compulsory legal succession leads to the significant violation of the subjective rights of particular government bodies and the state in general. This is expressed in the impossibility of full compensation for harm caused by corruption crimes. The main results of the study can be formulated in the form of proposals aimed at changing the legislation and the practice of its application. First, it is proposed to secure the inadmissibility of confiscation in cases of illegal possession of seized property and to introduce the following amendments to the Criminal Code: Article 104.4 of the Criminal Code of the Russian Federation «Compulsory confiscation of property»: «1. Compulsory gratuitous withdrawal from illegal possession of a person by turning into state ownership on the basis of a conviction is not confiscation...» Secondly, it is proposed to reword Art. 104.1 of the Criminal Code of the Russian Federation as follows: «1. Confiscation is a compulsory gratuitous seizure of property from the owner and its conversion into state ownership on the basis of a conviction. The following property is subject to confiscation: ... «Thirdly, it is proposed to complement the Civil Code of the Russian Federation with Article 347.1 «Pledgee’s Guarantees upon Termination of Pledge».

Consequences of convergence of the private sector and public law in the field of protection of subjective rights

The Current state of protection of the rights and legitimate interests of citizens in the private legal sphere is characterized by a wide use of public legal methods of protection. Such phenomenon of interpenetration of private and public norms in legal science is designated as convergence of private and public law. Improving the effectiveness of the protection of the rights and legitimate interests of citizens is impossible without a balanced combination of private and public legal means of protection. The development of the theory of convergence of private and public law at the present stage is most fully manifested in the sphere of protection of subjective rights. It is within the framework of this theory that an optimal balance can be found between private law and public law methods of protecting the violated rights of citizens.

Jurisdictional Form of Protection of Family Rights and Interests

The article defines that the protection of family rights and legally protected interests is one of the most important guarantees of the existence of these rights and interests. It should be mentioned the rights and interests in any field of public life are not always carried out unchecked. The protection of subjective rights is exercised in the manner prescribed by law, that is, by the application of an appropriate form. The form of protection refers to a set of internally agreed organizational measures to protect subjective rights and legally protected interests. It has been proven that in the theory of law there are different approaches of scientists to highlight forms of protection of family rights. We are inclined to the point of view of existence, jurisdictional and non-jurisdictional forms of protection. It is proposed to highlight judicial and non-judicial forms of protection within the framework of the jurisdictional form of protection of family rights and interests. The essence of judicial protection is disclosed as the possibility of a person to apply for the protection of his or her violated, challenged or unrecognized family rights in court. In turn, by non-judicial form of protection, the author understands the possibility for a person to turn to competent authorities other than the court to defend his family rights. In case of non-judicial protection of family rights and interests, subjects apply to such institutions as guardianship and guardianship bodies, notaries, prosecutors, lawyers, etc. Within the framework of the article, it has been proved that the decision of the guardianship and guardianship authority is usually of a advisory nature. Notary bodies play an important role in the contractual regulation of legal relations between participants of family legal relations, namely in the conclusion of family legal contracts. Family law gives certain powers to the public prosecutor to protect family rights. In turn, the lawyer has a partial role in the protection of family rights. It is justified that the institution of mediation deserves attention in the study of the protection of family rights and interests.

Right to an Effective Remedy of Legal Protection: Practice of the European Court of Human Rights and the Norms of the National Legislation of Ukraine

The article investigates right to effective remedy in the practice of European Court of Human Rights and national courts of Ukraine. The attention is paid to absence in the state of certain discretion which comes down to possibility of selection of remedy for performance of their obligation. Attention is paid to comparison of provisions of legal acts of Ukraine, which determine material and legal remedies of civil rights with Article 13 of Convention and practice of European court. Practice of application by national courts of Ukraine of unnamed remedies of protection of subjective rights and legally protected interests has been researched.

NON-APPLICATION BY THE COURT OF AN ACT CONTRADICTING THE LAW: PROBLEM STATEMENT

This article deals with the specifi city of the non-use by the court of an act contrary to the law as a way of protection of civil rights. The main doctrinal positions on the nature of the right to protection and on methods of protection are set out. The article is particularly relevant because of the fact that so far no comprehensive studies have been carried out on the particularities of the non-application by the court of an act contrary to the law from the point of view of the institution of administrative justice and the protection of civil rights, on the one hand, and the principle of legality and independence of judges, on the other. This issue became particularly acute in view of the adoption by the Constitutional Court of the Russian Federation on December 6, 2017 of the Resolution № 37-P, the subject of which was the constitutionality of part 13 of the Article 12 of the Civil Code of the Russian Federation. On the example of judicial practice the author demonstrates the atypical nature of the considered method of protection as well as the procedural diffi culties arising in connection with the part 13 of Article 12 of the Civil Code of the Russian Federation. On the basis of theoretical and practical arguments, the author concludes that the non-use by the court of an act contrary to the law does not fi t into the traditional perspective of the protection of subjective rights and the institution of administrative justice.

CHARACTERISTIC OF THE SUBSTANTIVE LAW

The division of material and procedural law has its deep traditions both in the law and in the legal science. Until recently in the continental legal system had primacy substantive law and the procedural law was perceived as something secondary, as a technology whose task is to serve the substantive law. However, in recent years, more and more widespread is the understanding that both substantive and procedural law are equally important. There is no basis for the material right to be considered as primary and priority, and the process as secondary and subordinate. Substantive law is inextricably linked with procedural law. They can be considered as two sides of the legal category - legal regulation and procedural means for administrative and judicial protection of subjective rights in regulated public relations. In the substantive law, the legal norm determines what the rights and obligations of the legal entity are. The process law determines how these rights and obligations will be realized, that is, the procedure.

Right to an Effective Remedy of Legal Protection: Practice of the European Court of Human Rights and the Norms of the National Legislation of Ukraine

The article investigates right to effective remedy in the practice of European Court of Human Rights and national courts of Ukraine. The attention is paid to absence in the state of certain discretion which comes down to possibility of selection of remedy for performance of their obligation. Attention is paid to comparison of provisions of legal acts of Ukraine, which determine material and legal remedies of civil rights with Article 13 of Convention and practice of European court. Practice of application by national courts of Ukraine of unnamed remedies of protection of subjective rights and legally protected interests has been researched.

СТРОКИ ЗВЕРНЕННЯ ДО АДМІНІСТРАТИВНОГО СУДУ КРІЗЬ ПРИЗМУ ВПЛИВУ ВЕРХОВНОГО СУДУ

The article is devoted to the study of the peculiarities of regulating the recourse period to the administrative court from the point of view of due process. Clear up the issue to what extent the consolidation and regulation of the recourse period qualifies the requirements of the legal procedure, namely: clear legislative regulation; inadmissibility of violation of the rights, freedoms and interests of the parties; clear structuredness and regulation. The scientific work investigates the essence of the term circulation term and considers the feasibility of introducing it. An attempt was also made to compare the recourse period with the limitation, arguments are given why the introduction of the terms of appeal in administrative proceedings is not identical to the limitation in civil proceedings. Different positions are considered, referring to the practice of the Supreme Court and the opinions of scientists, why, on the one hand, the limitation cannot be introduced in the administrative process from the point of view of the principle of legal certainty, and on the other hand, how the recourse period violates the right to access to justice. The main attention is paid to the role of the Supreme Court in the formation of approaches to the application of limitations. The concept of contra legem, which is inherent in the countries of the Anglo-Saxon legal family, is considered and is used in cases where there is a need to deviate from the enshrined norm at the legislative level in order to avoid literal application of the law and not make an absurd or unfair decision. The thesis is emphasized, despite the fact that the Supreme Court sometimes deviates from the formally prescribed norms, however, this is the essence of the cassation proceedings: it is an additional guarantee of the protection of subjective rights by correcting judicial errors, as well as a kind of judicial control. The specific decisions of the Supreme Court are considered, in which the approaches to the practice of applying the recourse period have been changed. On the basis of the decisions of the Supreme Court, it was investigated how the Supreme Court by its decisions affects and changes the recourse period fixed at the legislative level, the key positions of the Supreme Court are highlighted, which today are guiding for the subjects of appeal to the administrative court.

Informationssicherheitsrecht. IT-Sicherheitsgesetz und NIS-Richtlinie als Bausteine eines Ordnungsrechts für die Informationsgesellschaft

<bold>Information Security Law</bold> <italic>Towards an Order of the Information Society</italic> Information security is widely considered to be one of the most pressing problems of our time. Since 2015, lawmakers have started to address the issue and have passed legislation in Germany (IT-Sicherheitsgesetz) and the European Union (NIS-Directive), which is supposed to improve information security for operators of essential and digital services. A look beyond the recent statutes reveals that there already exists a large body of rules governing the safety of information networks and data infrastructures. This article analyzes the main challenges faced by information security regulation. It explains why the previous legal regime failed to provide for an adequate level of information security – and why the recent approaches can be expected to be more effective. Especially, IT-Sicherheitsgesetz (ITSiG) and NIS-Directive mark a fundamental change in regulatory scope and strategy as well as a regulatory paradigm shift: So far, information security regulation has focused either on the protection of subjective rights or on the deterrence of and retaliation against deliberate attacks. ITSiG and NIS-Directive, on the contrary, attempt to strengthen the public and private IT infrastructure by creating or introducing institutions and instruments such as expert organizations, certification regimes, and information systems.

New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law

This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.

New Perspectives on Contractual Law in the Context of Real Contracts in the Systems of International Contemporary (Roman) Law

This scientific paper aims at exploring and establishing whether national legal gaps or possible issues within the differences in the international contractual law of the European Union’s member countries and non-EU member countries can result in possible difficulties. In case there are legal problems and difficulties or practical concerns in this field, should the functioning of the internal trade and legal function through its interpretation hinder the process between the contracting parties in the event of entering a contract of international and interstate character within the law of obligations, and in cases of entering a contract, during its interpretation, while determining the rights and obligations or during other legal issues which have to do with the implementation of international private law and European international private law. Viewed from this angle, we need to consider the national and international private contractual law in the aspect of harmonization of the contractual law which may result in inconsistencies on a European level and broader. This would present an obstacle which restricts the fundamental legal-private rights of citizens as an advantage of individuals. They consist of three parts: personal relations between citizens, property relations between persons entitled as property trustees, as well as the procedural law which regulates the protection of subjective rights of personal and ownership nature. In practice, these face more difficulties in the private international law and European private international law, for example in: rules on property, ownership, real rights on other people’s belongings, liabilities and heritage in international character and elements.

The Supervision of Self-Government Bodies’ Regulations in Hungary

The judicial and constitutional review processes of regulations of Hungarian autonomous bodies with self-government are analysed by our article. Firstly, the circle of the autonomous bodies with self-government and the definition and forms of regulations, general decisions of these organs are reviewed. Secondly, the judicial and constitutional review processes of the local self-government decrees are examined and it could be highlighted that the judicial protection of subjective rights and the execution of court decisions may be problematic. The same problems arise in connection with the supervision activity over professional bodies’ regulations as shown thirdly. The main question of the practical effectiveness of the new regulations are analysed fourthly in the article. Although the tools of legal supervision have been strengthened radically, the importance of these procedures has not changed significantly. As the result of the analysis de lege ferenda recommendations are set forward.

The current state of legal ensuring of subjective rights of the participants of horticultural society

Relationships involving horticultural society and its members occupy an important place in the system of civil legal relations, because they are aimed at ensuring and protection of the subjective rights and responsibilities of various social groups. In this work attention is paid to the fact that through the horticultural societies as legal entities, citizens have the opportunity to implement some public law rights. In particular, the right to receive their garden house address’ state registration. The author concludes that these rights are not central in ensuring the subjective civil rights and duties of participants of the horticultural society. It is observed that the question of ownership takes the leading position in the range of problems of these relations. At present, the mechanism of privatization of the land plots that belong to the participants of the horticultural society remains imperfect. On the legal level, the relations of property concerning the land plots, that are adjacent to the territory of these legal entities, are not solved. Without attention of legal regulation remain the issues concerning relations of ownership of the member fees within the legal person and the procedure of obligations for public services provided by the organizations and others. Based on the research of contemporary normative acts, which are aimed at ensuring and protection of subjective rights of the members of the horticultural society, including property rights, the author makes proposals for the improvement of the current civil law. The perspectives for further research are seen in the improvement of the mechanisms that provide legal relations involving horticultural societies, their members, and features of ensuring and protection of subjective rights of the members of these organizations.

Some Consequences of Markets’ Transnationalisation on the Protection of Subjective Rights

Abstract The changes in the sovereignty plane are caused also by technologic, economic or strategic modifications affecting today's international society. These changes are accompanied by a reassessment of the protection of subjective fundamental rights (also called human rights) and of sovereignty as value, fact that is unconditionally accepted but many a time contested from the perspective of the effectiveness of these rights and of sovereignty itself. It is important to understand two aspects: first, the way in which positive law (positivism and its exclusively normative analysis) may cover causes”that are external to the legal system sometimes leading to an almost absolute inefficiency of fundamental rights”. The second aspect regards the need for an inter-disciplinary approach (legal, political, economic) that may lead to a better understanding of the concrete causes and the phenomenon of inefficiency of these rights. In any field of human activity there are preoccupations regarding the dysfunctionalities that may occur inside it also and consequently one studies the causes, manner of occurrence, their manifestations and consequences. In the domain of guarantee of subjective rights – a legal domain par excellence, but with multiple implications in the other fields of the social sphere – this is much more obvious.

An Overview of the Administrative Court and of the Law of Its Establishment in the Republic of Albania

Administrative Adjudication is the guarantee of effective protection of subjective rights and legitimate interests of the people through a fair trial and within quick and reasonable terms. The establishment of Administrative Court in Albania was a necessity with the sole purpose of creating a more peaceful climate for the progress of the reports between Public Administration and Private Entities. The need for judicial control of the Administrative activity derives from the principle of the the Rule of Law, the latter led by the principle that the subjective rights of citizens should be protected, not only against other people, but also against the Public Administration. This paper addresses the necessity of establishing the Administrative Court and its role in the Republic of Albania, refered to the law for its creation. The activity of the Administrative Court, Administrative Law principles and innovations of this law are analysed here. An important part of this paper is the necessity of creating the Administrative Court referred to the efforts of the EU countries to unify the adoption of a law on Administrative Law. The establishment of this court has also been one of the conditions for the Integration in the European Community. In the context of reforms in the field of Justice and the Legal Administrative Reform in Albania suggested by the European Union conditions have been set for obtaining the Status of an EU candidate country. One of these conditions was also the establishment of the Administrative Court, as the Administrative Justice plays an important role for the economic development of a country. DOI: 10.5901/ajis.2014.v3n3p177

Philosophical, legal and general issues of legal liability

Traditionally idea of legal liability is limited with the past actions, so called negative liability. Even variety of ideas and tractates can be seen at the supporters of this approach. In the same time amount of studies of the positive liability is growing within recent decades. Even more – scientists have announced that the liability can be only positive and that the protection of subjective rights and legal interest is performed by means of state enforcement. In this article theory and conception found in scientific literature of the legal liability and that interprets it both positively and negatively is critically analysed as well as objective and psychologically – subjective base of legal liability is being researched and on such basis understanding of legal liability will be established. Specific indications will be separated; the totality and forms of implementation will be fortified.

Harmonization of European Civil Procedure - Policy Perspectives

European Civil Procedure is a rapidly growing field, judged by the numbers of directives and regulations churned out by the European Commission over the past decade. However, the practical impact of legislative acts passed under the powers of Art. 81 TFEU remains very limited. These measures of “horizontal harmonization” create uniform rules for disputes of any kind, yet they remain confined to cross-border cases. As the Commission moved beyond the issues of international jurisdiction and enforcement of foreign judgments, it placed European institutions alongside the national ones, which continued to govern domestic disputes. This results in duplicative sets of procedural rules which place a heavy burden on the judges who have to work with them. Another thread of European legislation does not bear the label of civil procedure at all, but purports to harmonize the domestic system of law enforcement and protection of subjective rights in selected substantive areas, such as intellectual property rights, competition law, and consumer law. Such measures of “vertical harmonization” remain confined to specific kinds of disputes, but they apply regardless of whether the dispute is international or domestic. In doing so, their practical impact is much greater than the one of horizontal measures. For European lawmakers, it is essential to keep in mind that the policies of law enforcement and protection of property rights deeply involve principles of civil procedure and that account must be made for this in drafting pertinent legislation.