Romano-Germanic Legal Family Research Articles

Courts of First Instance in Criminal Cases of the Republic of Azerbaijan: Jurisdiction and Simplified Procedure

The UN by means of the international documents obliges the national legislator to pay to questions of jurisdiction special attention. The specified duties are concretized in paragraph 1 of article 14 of the Covenant on Civil and Political rights and in paragraph 1 of article 6 of the Convention on protection of human rights and fundamental freedoms. Providing guarantees of the rights for fair public consideration of the case by competent court without tightening is imputed an obligation of the states. Questions of jurisdiction, i.e. competence, courts on criminal cases in the territory of the Russian Federation are regulated by article 31 of the Code of Criminal Procedure of the Russian Federation. Rules of this article have the big importance. The close attention is given to questions of competence of the courts of the first instance also by the legislator of the Azerbaijan Republic. The legal system of this country enters into the Romano-German legal family, but with distinctive features. In our opinion, for simplification of office loading of courts of the first instance it is necessary to enter offenses into article 15 of the Criminal code of RA as an independent type of punishment. Besides, with the same purpose it is necessary to provide the simplified (total) procedure which is not, unfortunately, in the present legislation in the Code of Criminal Procedure of RA.

Sociological Jurisprudence and Legal Realism as a Basis for the Development of Judicial Law-Making

The aim of the present work is to study the role of sociological jurisprudence and legal realism for the development of judicial law making in the modern legal system. During the study, the author used general scientific methods, including historical, comparative, and logical ones. An analysis of legal documents was also performed, which allowed making conclusions about trends in the Russian legal system.
 The study showed that sociological jurisprudence and the realistic school of law of the United States were milestones of the development of the same socio-legal school. It was determined that the supporters of sociological trends could be attributed to the moderate direction of the American sociological legal school, and the legal realists – to the radical one. The basis of the socio-legal school is formed by the ideas of pragmatism, which are expressed in the functional and instrumental approach to the law. One of the basic tenets of the proponents of socio-legal school is the following: the law shall harmonize the interests, actually act and be implemented in the activities of the court. Views of sociologists of law contributed to the approval of the idea of judicial law making not only within the Anglo-American legal family but also in the legal systems of the Romano-Germanic legal family. They drew attention to the process of decision-making by the court, the process of setting up the rule of law by the court.
 The novelty of this research is that we have identified not only the influence of supporters of sociological school of law on the beginning of the new phase in the development of law, but also that the process was legitimate, and representatives of the scientific direction were able not only to recognize the pattern of ongoing legal development but also tried to steer the process in the right direction, so that the law would not lose its regulatory function and would not become a soulless mechanism in the hands of law enforcers.

Conflicts of Legal Ideas and Concepts: Constructive and Destructive Aspects

In the legal sphere, the conflict often begins with a conflict of legal ideas and concepts that can be defined as a contradiction within the legal system reflected in the opposition of one legal ideas and concepts to others. The influence of conflicts of legal ideas and concepts is particularly strong in societies that can be attributed to "ideocratic." The paper highlights the main characteristics of conflicts of legal ideas and concepts, the levels of such conflicts, their possible causes, and their constructive and destructive aspects. It is noted that some of the ideas and concepts can more or less successfully coexist, while others by their nature have to compete for the right to become dominant. As a typical example, the article discusses the conflict of legal ideas concerning the issue of which legal system should the post-Soviet countries be allocated to. The paper focuses on the competition between the following legal families in the post-Soviet space: the Romano-Germanic legal family, the Anglo-Saxon legal family, the Slavic legal family, the post-Soviet legal family, the legal family of Muslim Law, the Byzantine Legal Family, the Eurasian legal family. The author considers the competition between the legal paradigms as an example of the conflict of legal ideas and concepts at a fundamental scientific level. The paper provides the author's classification of legal paradigms into normativism and metanormativism, justifies the existance of a paradigmatic question, the answer to which determines the allocation of a certain legal idea or concept to a certain legal paradigm. In the light of the author's concept of legal paradigms and their competition, the paper elucidates the integrative concept of law. The paper provides two main ways of resolving conflicts between legal ideas and concepts, namely: either a concept that possesses the highest constructive potential may be chosen out of competing concepts or a new concept that combines the most positive features of all competing concepts may be developed. It is justified, in particular, that the concept of «progressive conservatism" or "retrofuturism" in a new way may consolidate the Russian society, reconcile the liberal and conservative vectors of its development. This ideology implies a comprehensive innovative development of the economy and modern technologies (as a "form" of social life), while maintaining a traditional, conservative approach to social and spiritual values (as an "essence" of social life).

LAND RIGHTS AND OTHER REAL ESTATE IN CIVIL LAW OF THE COUNTRIES OF ROMANO-GERMANIC LEGAL FAMILY: HISTORICAL ASPECTS

In the article historical aspects of legal regulation of the relations connected withland rights and other real estate are investigated. Evolution of legal regulation of separate aspects of civil circulation of the landplotsand other real estate objects in civil law of the countries of the Romano-Germanic legal family is investigated. Historical aspects of formation of the landrights’ concept and other real estate are reflected in the countries of the Romano-Germanic legal family.

Северная правовая семья и унификация законов

In the presented article the author analyses the particular and typical legal characteristics of the so-called Nordic Legal Family, which enable it to be rather specific and to be on the contrary to the Romano-Germanic legal family and the Anglo-Saxon legal families of Europe. The author emphasizes that these characteristics of Nordic legal family serve the cause of the harmonization of the laws and even legal systems of the States of Northern Europe included in this legal family. The author examines the ethnic, historical and cultural origins, the foundations of the origin of this legal family, and based on them factors that contribute to the harmonization of their laws. The specifics of the formation of legal systems of the States of this region were shown in present article. The author describes the traditional North-European countries forms and methods of legal unification through meetings and consultations of their representatives, through their joint activities, their activities in the Northern Council which is an international body of inter-parliamentary cooperation, and the Council of Ministers of Nordic Council member states whish is responsible for intergovernmental cooperation. There also were presented the examples of positive results of this unification. However, the author correlates the operation of the Nordic legal family and the negative influence of the European law.

ЦІННІСТЬ ТА ЗНАЧЕННЯ ПРАВОВОГО ПРЕЦЕДЕНТУ, ЙОГО ФУНКЦІОНУВАННЯ В УКРАЇНІ

The article is devoted to the coverage of one of the current problems of law-making activity of officials and public authorities regarding the value and significance of legal precedent in society. Legal precedent is the main source of law in the Anglo-Saxon legal system, but it is also reflected in the Romano-Germanic legal family. Judicial practice of foreign countries clearly demonstrates the effectiveness and value of judicial precedent in resolving legal cases. The peculiarity of the precedent is that the results of the interpretation of constitutional acts and ordinary laws provided by higher courts are binding on all lower levels of the judiciary. As a result of this approach, a relatively independent type of precedent is formed - the precedent of interpretation, recently the concept of precedent of interpretation is becoming increasingly relevant for Ukraine in connection with the practice of the Constitutional Court of Ukraine. According to the Constitution of Ukraine, the Constitutional Court of Ukraine has the exclusive right to provide an official interpretation of the Constitution and laws of Ukraine. Decisions of the Constitutional Court of Ukraine on official interpretation are binding on all individuals and legal entities, as well as public authorities and local governments in Ukraine. However, the Constitutional Court of Ukraine carries out interpretive activities not only within the framework of a special procedure, but also during decisions on compliance with the Constitution of Ukraine, laws and other legal acts specified by law. The motivating part of these decisions may contain legal interpretative provisions, which disclose the content of the relevant provisions of the Constitution of Ukraine and legal acts, the constitutionality of which has been verified. Judicial precedent has certain advantages in terms of the quality of justice, as it is characterized by special regulation of similar specific life situations, which reduces the level of arbitrariness of officials. However, there is another view of this issue, which denies the effectiveness and reliability of this mechanism, because the court precedent actually denies the individualization of the legal case.

The Influence of International Law on the Content and Development of the Legislation in the Sphere of Human and Civil Rights Protection

The article highlights the problem of improving the Russian legislation in the sphere of human rights protection under the influence of the norms of international law. It is noted that the preferred way to implement international standards in the Russian legal system is the ratification of conventions, covenants, etc. and their subsequent implementation (transformation). Such things make it possible to most fully reveal the essence of these norms and to develop an effective domestic set of measures for the protection of human rights. The focus also made on the fact that among the elements of international law affecting the maintenance and development of national legislation in the sphere of human rights protection, a special place is occupied by the final judgments of the European Court of human rights. Despite the fact that in Russia, as in other countries of the Romano-Germanic legal family, judicial precedents are not considered a source of law, the legal positions contained in the final decisions of the European Court of Human Rights, contribute to the in-depth implementation of the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms of1950 into the Russian legislation. However, to date there is no universal mechanism for the implementation of approved and almost general measures aimed at execution of the judgments of the European Court of Human Rights.

Система источников уголовно-процессуального права Швейцарии

The author considers the operating system of sources of criminal procedure law of Switzerland. The author studies the question of the international law influence on their development. The author analyzes such sources as the Constitution, the Message of the Federal Assembly on unification of criminal procedure law, the Code of penal procedure, the Federal law on organization of the Federation’s criminal trial bodies, the Federal law on the Federal court, the Federal law on Federal criminal court and some other enactments. The author briefly considers the criminal procedure law on the example of Zurich and St. Gallen cantonal sources. The author researches the role of the legal doctrine in application of Criminal Procedure Code rules. The author compares the Swiss and Russian systems of sources in the branch of law in question. The author comes to the conclusion that the systems of sources of criminal procedure of Switzerland and Russia have many common features, since both legal systems of the states belong to the Romano-Germanic legal family. Law and order of both states have the Criminal Procedure Code, based on the rules of international law and the constitution, as the main source of criminal procedure. At the same time, in spite of the fact that Constitutions of both countries refer the criminal procedure law to the exclusive competence of the federation, in the Swiss law and order there are numerous exceptions to this rule as many major questions relating to criminal procedure are settled at the cantonal level (structure of court, system of criminal trial bodies, etc.).

Principles of Law of Obligation (International And National Aspects)

Review. Forming market relations, a Russian legislator seeks to adapt previously developed of fulfillment of obligations to current conditions with account for international experience. This article considers provisions, typical for countries of the Romano-Germanic legal family, which include some general principles, that the legislator has not fleshed out in a positive norm, and Russian legislation based on judicial practice and enshrining principles of law, possessing the highest authority and being the criterion and measure of the legality of all legislative instruments. The authors research scientific standpoint on the essence and value of the of law coinciding with the position of German civil law scholars and practitioners. The authors also conduct a comparative analysis of the of performance of the obligation, the principle of good conduct of the subjects, peculiarities of limiting the principle of substantive performance of an obligation, withdrawal from an agreement (refusal to perform a contract) or from exercising the rights under the agreement, the principle of cooperation, the principle of parsimony, which, according to the authors, in conjunction with other principles, including the general principle of good faith in civil law, may provide guidance in the practical field. They define a significant place among the of fulfillment of obligations in the Russian law - the principle of inadmissibility of unilateral refusal to perform obligations and related to this controversial litigation. The article outlines features of enshrinement of the above mentioned by the CIS countries into the standards, and in the laws of foreign countries into the guidelines. It is also proposed to stipulate the definition of the terms and conditions of a standard contract adopted from the German experience in the Civil Code of the Russian Federation, which will ensure the balance between the interests of the parties to an agreement, as well as will become a means of protection against the abuse of freedom of a contract on the part of the economically stronger contractor.

Comparative legal analysis proceedings in criminal cases of private prosecution

The Constitution recognizes the supreme goal and value of society and the state of man, his rights, freedoms and guarantees of their implementation (Art. 2 of the Constitution of the Republic of Belarus). Said setting determines the tendency to expand and began private interests in criminal proceedings. Criminal proceedings of private accusation is the most striking example of those in the criminal procedural legal relationships. In this regard, it considered the legal institution deservedly attracts attention as practitioners and legal scholars. However, individual lawyers, including domestic, raising a question of urgency and the need to maintain within the public inherently criminal procedure institute private prosecution, which originated in ancient times. Is this legal phenomenon anachronistic and unnecessary process developed by modern system of criminal prosecution? The answer to this question is impossible without recourse to the experience of foreign countries Romano-Germanic legal family, because this type of production is not something specific, peculiar only to the domestic law. Subjecting analysis proceedings in criminal cases of private prosecution in a number of foreign countries, it is concluded that in one form or another, this institution is preserved in most countries, not only adjacent to each other and having a certain commonality of historical development and the location even different continents, look at the private prosecution as some throwback, a vestige of the criminal proceedings, left the law "in memory" seems wrong that confirms the international experience of the criminal procedure law to keep this Procedure Institute, which in turn highlights its value and relevance to the criminal proceedings.

COMPARATIVE LEGAL STUDIES: ROMANO-GERMANIC LEGAL SYSTEMS IN THE ASIA-PACIFIC STATES

The article analyzes the differences in the national legal doctrines of the Asia-Pacific countries included in the Romano-Germanic legal family of legal systems. The article shows that various Pacific Rim countries of the same legal family have substantial differences between national legal systems. The article also identifies main trends of comparative legal studies development in these countries.

Udgment of the European Court of Human Rights as a source of law in Ukraine

Problem setting. Problems of determining the place of the European Court of Human Rights in the system of sources of law in Ukraine. The problem remains relevant sources of law. Difficult to determine the sources of law related to the lack of clear criteria. Modern civil law countries are hundreds and thousands of decisions of courts of different instances. Therefore, jurisprudence is a source of rights of the Romano-Germanic legal family, particularly Ukraine. Any systematization of legislation can not provide the necessary level of detail of regulation. Right of modern continental Europe developed it as a precedent. Recent research and publications analysis. Until today, analyzed and spoken about the need to implement a judicial precedent for reforming the legal system of Ukraine, many scientists. In this area next scientists showed their interests: K. Andrianov, M. Buromenskiy, A. Bushchenko, Lutkovska V., V. Paliyuk, P. Rabinovich, N. Radanovych, D. Suprun, S. Fedyk, S. Shevchuk and others. On the need to implement judicial precedent for reforming the legal system of Ukraine also said other scientists: A. Selivanov, M.Koziubra, M. Miller, M. Gray, V. Nor, L. Lutz, W. Kotyuk, S. Shevchuk, V. Navrotskyi, G. Shmelev, B. Malyshev, A. Kuhnyuk, D. Kyrylyuk, V. Shishkin. Paper objective. The goal is to deepen scientific knowledge of the harmonization of Ukrainian legislation with the European legal systems; rethinking the relationship to legal precedent; the need to implement judicial precedent in the legal system of the country; the level of detail necessary legal regulation; the ability of the legal system to respond to the dynamic development of social and economic institutions. The object of study is the source of law governing social relations, in particular, the case law. Purpose of the study is the European Court of Human Rights as a source of law in Ukraine. Paper main body. Identify features of the European Court of Human Rights should be based primarily on the current legislation.Ukraine at the legislative level has recognized the compulsory jurisdiction of the European Court of Human Rights. Convention for the Protection of Human Rights in accordance with Art. 9 of the Constitution is part of the national legislation of Ukraine. Ukrainians are very actively traded in the European Court of Ukraine is one of the leaders of appeals last few years. Most often, the applicants complain about the violation of the right to a fair trial. Many complaints of torture and inadequate conditions of detention. The decision of the European Court can be considered as the official form of clarification of fundamental rights of every person, and enshrined in the Convention. This is part of national law and a source of legal regulation and enforcement in Ukraine. Implementation of the Convention and the decisions of the European Court as a source of law in Justice of Ukraine were developed in the course of judicial reform. The decision of the European Court concerning the official interpretation and application of the Convention and binding on the States – Parties to the Convention. Conclusions. The decision of the European Court must be ideological and legal basis for justice in Ukraine. Case law system is the most common in the world - it’s a well known fact. Is increasingly recognized in Ukraine and the importance of the role of jurisprudence of the European Court.

Influence of the Roman Law on Formation of the Romano-Germanic Legal Family

Any legal family or national legal system passes the period of its historical formation. The purpose of writing of the work is elaboration of scientific idea of influence of the Roman law on formation of the Romano-Germanic legal family. Such factors as the period of the great transmigration of peoples, rich heritage of the Roman law, city, local and canon laws, which put a tradition of the written law as the main source, development of university thought, full-scale codification influenced formation and development of the Romano-Germanic legal family. The goal is achieved by means of the solution of the following main objectives: -Revealing features and stages of formation of the Romano-Germanic legal family; -Revealing theoretical aspects of identification of the Roman law in the Romano-Germanic legal family.