Subject Of Rights Research Articles

Теоретико-методологічні аспекти дослідження поняття правової обізнаності

The article presents a thorough analysis of a number of concepts related to the possession of legal knowledge. Legal awareness is necessary for everyone given the presumption of knowledge of the law. Semantic, etymological, elemental, formallogical analysis of the terms has been carried out, the criteria for their distinction and the characteristic features have been highlighted.It has been demonstrated that legal education is mostly aimed at theoretical familiarization with legal reality, that is, it is primarily a way of spreading and transferring basic legal knowledge to subjects. Legal nurture is distinguished by a significantly deepened influence on value aspects, humanistic legal ideas, an effort to form respect for law. Legal awareness is characterized by the «ability to act», the ability and willingness to exercise or protect one’s rights. The authors note that Ukraine is at a difficult stage of transition to a new formation which is no longer based on subjective rights and declarative slogans but on real values such as human dignity and the rule of law. And their rooting in social and individual legal consciousness is possible only through awareness as possession and constant access to legal information its analysis through synthesis as critical productive thinking and legal capacity as a conscious ability to achieve the necessary legal result. Critical thinking is inherent in a level of freedom that recognizes the prominent place of the individual in society as well as an ideal that is gradually expanding in a globalized world where, despite real latent social inequality, there is a great legal and political awareness of the importance of ensuring the free realization of the individual, which promotes the expansion of critical thinking.

D.M. Genkin, discussion about absolute rights outside legal relations and some classification issues subjective civil rights

This is an attempt of theoretical reconstruction of the prominent Russian private law scholar D.M. Genkin’s concept of absolute subjective right. The context and ramifications of this very peculiar concept have been analysed. The concept triggered a lively discussion and was considered to be of a mixed blessing within the Russian private law doctrine. Nevertheless, as demonstrated in the piece, it was quite plausible, when appeared, and remains of some relevance today.

In search of the last abstraction of civil law

This publication was intended to be a regular review of an extremely informative book written by S.V. Tretyakov. Nonetheless, since the book poses important ontological and legal issues, the author focuses in this essay on methods of scientific research that are inherent to legal philosophy, particularly legal ontology. S.V. Tretyakov, in his quest to find “the last abstraction of private law” (A. von Tuhr), discovered what can be designated as universal categories of private law, including a subjective private right, which is at the heart of a will theory perspective on subjective rights. The article argues in solidarity with the book’s author that civil law methodology needs to be supplemented by the methods of knowledge intrinsic to the ontology of private law. A legal philosophy in this context should be considered a collection of mainly artificial, imaginary, and sometimes fictional ideas denoted by the polysemantic and inclusive Latin word “ars” (jus est ars...). A combination of private law ontology and a will theory, exemplified by Hegel’s aphoristic statement that lawyers think in terms of will, led the author to conclude that the ultimate abstraction of civil law is free will, which implies both dignity and autonomy of the owner of a right.

ЕВОЛЮЦІЯ ЦИВІЛІСТИКИ: ДОГМА ТА МЕТАФІЗИКА

The article considers the influence of the doctrine of dogmatism on the development of Civil Law Science. Problems of reviving the metaphysical approach and metaphysical principles in civil doctrine are raised. Aspects of pragmatic improvement of modern civil legislation in Ukraine are touched upon. The appeal to the theoretical problems of methodology in civil law is caused by the desire to see in which direction modern Civil Law Science is developing, and to understand how dogma and metaphysics can affect modern civil law relations. Having a significant arsenal of modern methods of scientific knowledge of civil studies, scientists often overlook the metaphysical basis of social relations. With regard to jurisprudence, we emphasize the methodology, in its deep and broad sense, which helps not only in finding criteria for distinguishing areas of objective law and definition, subjective rights of participants in relevant social relations, but also in shaping our knowledge of holistic pictures of the phenomenon of law and its future. The question of the relationship between dogmatic and positivist theories in civil doctrine is revealed; it is about the interaction of metaphysical and empirical principles in the context of understanding the fact as a certain experience. It is noted that none of the legal sciences is as close to the concept of dogma as civil law. Using the historical method indicates the temporal change of legal institutions and their dogmatic analysis on the example of Roman law and its reception. The article notes that jurisprudence as a humanity in the current conditions of society remains relevant. With the use of a broad professional conceptual apparatus, it is able to create ideal opportunities to promote common ideas and hypotheses related to the development of legal order. Keywords: dogmatism, thing, possession, methodology, morality, positivism, legal institution, private law, fact.

Evolution of the public assembly law in Russia

In Russia, from the end of the 19th century to the present day, the public assembly law, which regulates the implementation of the constitutional right to freedom of peaceful assembly, is in the process of constant development. The author conducts a historical and legal analysis of domestic legislation, as well as constitutional and legal ideas in the field of the public assembly law. Based on the analyses, the author came to conclusion that the first constitutional ideas regarding formal fixation of the subjective right of citizens to freedom of peaceful assembly were expressed by the Decembrists in their program documents. The author comes to the conclusion that in the time of Russian revolutions of 1905-1917 the process of the real elaboration of constitutional norms regulating the right of public assembly has been started; exactly at that time based on the idea of the constitutional state the Russian legal scholars have prepared the domestic doctrine of the public assembly law, which was elaborated based on comparative research (for example, the Russian legal scholars have analyzed and applied the German legal doctrice of Versammlungsrecht). The article provides a periodization of the development of the public assembly law in Russia. It is also noted that the constitutional and legal tradition of pre-revolutionary lawyers, according to which the public assembly law has been defined in domestic public law, was then interrupted in the Soviet era, when the freedom of peaceful assembly has had merely a declarative character. The general conclusion is that at present moment in the Russian legal system there is a process of the gradual formation of the public assembly law, which combines the norms of the Constitution of Russia, federal laws, as well as the practice of the Constitutional Court of Russia and courts of general jurisdiction. The author considers that today the Russian Federation is making a slow and associated with a significant number of problems ascent to the law — the arduous climb to the public assembly law.

Legal nature of monetary reward under surrogacy agreement

The article is devoted to the consideration of the current problem of insufficient regulatory regulation of relations in the field of surrogacy in relation to the monetary reward of a surrogate mother. It should be noted that the action of the legislator largely lag behind the needs of practice, which causes many legal disputes over the nature of the surrogacy contract, subjective rights and obligations of the parties, the consequences of improper fulfillment of obligations taking into account the specifics of legal relations. The purpose of this article is to identify the gaps in legislation that the parties to the surrogacy agreement face when it is executed when disputes arise over the monetary remuneration of the surrogate mother. Legal status of the parties to the contract, features of payment for surrogate mother services under various circumstances taking into account the booming practice depend on the legal nature of the surrogacy contract.

Отдельные аспекты обеспечения законнных интересов подозреваемого в процессе уголовного преследования

The article considers the essence of a person's suspicion of committing a crime, as the basis for granting him the status of a suspect. The concept of procedural and legal guarantees is considered, which are legal means used to protect and protect the subjective rights and interests of the suspect. Considered the stages of the legal mechanism aimed at ensuring the rights of the suspect. Examples from judicial practice are given; the importance of the preventive measures necessary to ensure the observance of the rights and freedoms of the suspect, the role of the defender in this procedural procedure are considered; the basic rights of the suspect and topical issues of the implementation of these rights in the framework of criminal proceedings are analyzed. Methods and ways of solving existing, in connection with this gap in the law and difficulties in law enforcement practice are determined.

Преторская формула как инструмент понятийного юридического мышления в римском частном праве предклассического и классического периодов

The article discusses the formula, which is a means of fixing the claim in Roman private law of the pre -classical and classical periods. The nature and essence of the formula are quite little studied in the special legal literature. At the same time, most authors are limited to the general characteristic of the structure of the formulas, indicating that in the formulary process the documentary formula had the same meaning that in the legis actio were legitimate claims declared orally. According to the authors, the study of the formula should be based on the general laws of the evolution of Roman private law. The work proves that the emergence of the formula is an indicator of the transformation of associative-shaped legal thinking into a conceptual thinking, and the formula itself is an important tool for conceptual thinking used to construct subjective rights, as well as giving them formal certainty and legal force.

Prawnokanoniczna ochrona osoby zawiadamiającej o zaniedbaniach biskupa Kościoła łacińskiego zgodnie z motu proprio VELM

This article answers the question of what is the legal protection of a person reporting the negligence of a bishop of the Latin Church. The Apostolic Letter Motu Proprio of Pope Francis Vos estis lux mundi considers it a crime for an ecclesiastical superior to obstruct investigations against a clergyman accused of a contra sextum cum minoribus crime, which is why it is important for the creation of a uniform law protecting minors. Unfortunately, people reporting a crime may face a lack of understanding, or even abuse of power on the part of those receiving information. It is therefore necessary to examine which subjective rights fall within the scope of the legal protection of the person reporting negligence. The author suggests refining the existing provisions strengthening legal protection.

Particular issues of legal regulation of non-contractual liability in maritime transport

A distinctive feature of non-contractual liability as a legal concept is the existence of noncontractual liability for parties that are not in a contractual relationship with each other. The damage caused in this case will be recognized as a consequence of actions not related to the violation of contractual obligations. In this situation, the tortfeasor violates the general absolute obligation not to encroach on other people’s subjective rights. It should be noted that non-contractual liability is often equated with delictual liability arising from harm. Delictual liability is the most common among non-contractual liability. However, the concept of non-contractual liability is much deeper and subject to expanded interpretation, that is, it includes various cases of liability in the absence of contracts besides delictual liability. Problematic issues related to non-contractual liability in maritime transport are an urgent problem in contemporary legislation. Resolving the given issues will be useful for law enforcement. The author investigates problematic issues of the application of non-contractual liability in maritime transport, and proposes to clarify and supplement the legislation in the field under consideration.

ОСОБЛИВОСТІ СТАТУСУ ПУБЛІЧНОГО СЛУЖБОВЦЯ

The special status of an employee is a system of rights, freedoms, duties, responsibilities enshrined in regulations and guaranteed by the state, according to which the individual as a subject of law coordinates his behavior in society. Legal status is the legal status of a citizen. However, it is due to the peculiarities of its social status, which exists at this time in the development of society and the state. Thus, the social status of a person depends on the essence of the social structure of society in which it is formed and operates. It is influenced by many factors. The main ones are the place of work and the property available to the subject. A person does not automatically become a subject of law. It is recognized as such by the laws of the state and, above all, by its constitution. Legal status is characterized by stability and certainty, provides for equal rights and responsibilities of citizens, their equality before the law and is the basis for the acquisition of specific subjective rights, responsibilities and accountability. Individual is the status of a person as an individual, which is personalized rights and responsibilities in their specific, natural and acquired abilities and characteristics (gender, age, marital status, health, religious beliefs, etc.), is mobile, ie varies according to those changes in human life. The special status of a public person who is professionally engaged in the practical implementation of tasks and functions of the state is determined in Ukraine by the law "On Civil Service". According to this law, a civil servant is a citizen of Ukraine who holds a position in the civil service, public authorities, or other state body, its staff, receives a salary from the state budget and exercises the powers established for this position, directly related to performance of tasks and functions of such state body, and also adheres to the principles of civil service. This Law applies to civil servants.

ПРАВОВЕ РЕГУЛЮВАННЯ ШТУЧНОГО ПЕРЕРИВАННЯ ВАГІТНОСТІ: МІЖНАРОДНИЙ ТА ВІТЧИЗНЯНИЙ ДОСВІД

The article analyzes the legislative acts of a number of countries, which contain norms aimed at protecting human life, even before its actual birth. Attention is drawn to the fact that similar provisions are enshrined in some international acts. As a consequence, such legislative provisions are interpreted differently by scholars, some of whom try to absolutize the right to life and on this basis justify the unconditional right to birth and thus consider the prohibition of abortion as infringing on an inalienable natural subjective right. It is noted that the overwhelming majority of scholars proceed from the fact that this approach unreasonably restricts the reproductive rights of women who, at their own discretion, have the right to decide on the birth of a child and therefore have the right to resort to induced abortion. It is pointed out that this problem is solved differently in the legislation of different countries of the world: some of them practically prohibit artificial termination of pregnancy, others allow such an operation only in exceptional cases. It is proved that the consequence of such prohibitions is the spread of so- called "criminal abortions", which threaten the life and health of a woman, and in some cases lead to her death. It is noted that the vast majority of countries enshrine in their legislation the right of a woman to artificial termination of pregnancy (right to abortion), based on the fact that it is her natural and inalienable right. This is how this issue is resolved in the legislation of Ukraine, which finds its expression in the provisions of the Constitution of Ukraine, the Civil and Criminal Codes, the "Fundamentals of Legislation of Ukraine on Health Care", resolutions of the Cabinet of Ministers of Ukraine and orders of the Ministry of Health of Ukraine. In support of the position of those countries that legislatively enshrine the right of women to abortion, numerous decisions of the European Court of Human Rights are cited, which uphold the right of women to reproductive choice and emphasize that the right to abortion does not contradict the human right to life. It is concluded that reproductive rights do not contradict natural human rights and it is noted that the state should not prohibit artificial termination of pregnancy by law, but should take appropriate preventive measures in order to reduce the number of abortions.

QUESTIONS OF LIMITS OF LIMITATION OF SUBJECTIVE RIGHTS IN ABSOLUTE LEGAL RELATIONS: AN INTERSECTORAL APPROACH

Abstract: the presented article is devoted to the problems of determining the criteria for restrictions of subjective rights realized in absolute legal relations. The author positions the need to search for the “core” of absolute subjective law, defined as an indicator of the inadmissibility of any further restriction of it, through specific legal relations. In this connection, he applies an intersectoral approach to the analysis of the problems of the implementation of absolute legal relations: the branches of family, civil, and constitutional law are studied. The author notes the doctrinal and practical conflict-of-laws aspects of the sanctioned nature of restrictions on the realized paternity rights, patent rights, as well as inalienable constitutional rights in the conditions of an extraordinary regime of legal regulation. In the course of the analysis, relevant materials of domestic judicial practice are used. According to the author, the need for an authorized restriction is a prerequisite for changing the internal nature of a passive legal obligation on the part of obligated subjects in absolute legal relations. The obligation is mediated by state goal-setting and expediency, which cancels the unconditional classical nature of the absolute legal relationship.

Сравнительный анализ законодательных предпосылок гражданско-правовой ответственности в России и Китае

The paper compares the legislative regulation of property liability in the form of compensation for losses in the Russian Federation and in a state with the largest economy, rapid development rates, and a giant population neighboring the Siberian region of our country - China. The logic of historical evolution predetermined a detailed consideration of each other's experience in state building and the implementation of long-term development plans. In the legal field, both legal systems are based on the concept of codified law and are being improved through the adoption of normative acts. The institution of forfeit and recovery of damages for non-fulfillment of obligations, violation of subjective rights, permitted unilateral termination of an agreement in cases specially specified in the rules is contained in the civil codes of Russia and China and has significant conceptual differences. Its comparative analysis has not been carried out in detail for the last 20 years and is the novelty of this study. Its relevance can be determined by the development and complication of economic ties in the Siberian region, which is characterized by an extensive Chinese economic presence. Inevitable disputes and peculiarities of the applicable law, in this case both Russian and foreign, create applied interest in the comparative analysis of not only legislative material, but also judicial and arbitration practice. Knowledge of Chinese approaches is necessary not only in litigation in foreign courts, but also when a dispute is resolved on the basis of Chinese law in domestic jurisdictions or arbitration tribunals. The degree of elaboration of this topic. The timeliness of this study is confirmed by the fact that little attention has been paid in legal science to comparing the concepts of compensation for losses in Russia and China, despite their doctrinal significance, a close connection with the notions of liability, causality, guilt and negligence of creditors. The aim of the study is to develop a theoretical model of legal regulation of relations regarding compensation for damages corresponding to the modern conditions of the market economy of the Russian Federation, which could become a methodological basis for improving the norms and practice of their application, protecting the legitimate interests of participants in these legal relations. The subject of the analysis is the norms that directly regulate the procedure for compensation for losses in Russian and Chinese civil law, as well as materials of domestic and Chinese foreign doctrine on the legal nature of this institution. The research is based on private scientific (special legal, comparative legal, historical) and general scientific (problem-theoretic, teleological and systemic) methods. In the process of studying and understanding specific legal issues, general logical methods were used (abstraction, analysis, synthesis, analogy, generalization, and so on). The author declares no conflicts of interests.

Judicial reporting as a guarantor of the rule of law

Purpose: is to show judicial reporting in relation to the rule of law. The text focuses on the considerations and analysis of the relativity of judicial reporting to the rule of law as a kind of values and subjective rights of civil society. An additional assumption is to indicate the essence of the issue in an interdisciplinary perspective, drawing attention to its importance, multidimensionality, connection and social significance, leaving room for own research. Design/methodology/approach: The research method used in the article is the analysis of scientific studies, supplemented by the author's observations and experience. The research procedure included a review of Polish and foreign literature, an analysis of legal acts and court decisions, a case study and deductive reasoning. The above text evokes, in the author's opinion, a separate understanding and application, more and more commonly, also by journalists, of the concepts of justice, the rule of law and law. Findings: A high level of influence of judicial reporting on the rule of law has been demonstrated. Great demand for this type of message and its values, which should be implemented by the rule of law – judgments of common courts, to be considered the most desirable form of the system. Social development in the face of values as an interdisciplinary concept in terms of direction and field allows you to maintain what is with what should happen in the future. It is important not only what intentions people have, but also what competences they have and according to what values they operate. The conducted analysis shows that the correctness of the message and the understanding of the meaning of the rule of law in the area of law are important and vice versa. An autocratically governed society can be fully governed by law, the courts can issue judgments and the court rapporteurs publicly present them, which does not necessarily mean that we are dealing with the rule of law and the rule of law. Research limitations/implications: Limitations of the obtained results may result from a limited text sample, small text size. Originality/value: The presented research and conclusions provide practical tips not only to people of science, but above all to average citizens, mainly those who are not aware that the world of values surrounds people, but depends on them, what values they pay attention to and to which he remains indifferent. Man has the freedom to choose what suits him best, but is rarely able to use it rationally and in an appropriate form and time. Among values, man does not have to do anything and can do much. The less complex and understandable the forensic message, the closer to the concept of simple principles of human life and action. Every aspect of judicial reporting contributes to strengthening the rule of law in the spirit of a democratic rule of law. Like the world to the world, there were processes and comments, and what resulted from them socially (...).

PROCEDURAL BASIS FOR THE APPLICATION OF MEASURES OF LEGAL INFLUENCE, THEIR NECESSITY AND PLACE IN THE SYSTEM OF PROCEDURAL MEANS

This article discusses the procedural basis for the application of legal sanctions, the need for a legal sanction and its role in the system of procedural means, its application by the court, the application of legal sanctions against legal entities and citizens, as well as legal norms and principles, law enforcement acts, agreements, legal facts, subjective rights and legal obligations, prohibitions, privileges, incentives and penalties, documents on the exercise of rights and obligations, etc. The article also analyzes such issues as financial and legal sanctions, suspension of operations on bank accounts, transfer of offenses to the state revenue, certain types economic activities of the licensing authority, the liquidation of a business entity.

“Athos” Course of Lord Bulwer-Lytton: about the History of British-Russian Diplomatic Relations in the Balkans in the 1860s

The article discusses the goals and objectives of the British diplomats on the “Athos” track in the context of the diplomatic confrontation between Great Britain and Russia which relied extensively on the Church contacts in their Balkan politics. It explores such a little-studied aspect of the Athos problem as the role of Russian and British diplomats in addressing the issue of the Athos monasteries’ properties sequestrated by Alexandru Cuza, prince of the United Principalities of Moldavia and Wallachia, through the lens of the activities of Sir George Bulwer-Lytton, ambassador to Constantinople, in the 1860s. It uses Lord Bulwer's participation in the work of European commissions and conferences, to illustrate the methods and practices of British diplomats aimed at forcing Russia out of the Balkan region (and even out of the Middle East): such as erosion of the credibility of the Russian Empire, defamation of its representatives in Greek communities and their displacement from principle foreign-policy objectives, and indoctrination into endless conflicts in the multinational environment of Orthodox monasticism on the Holy Mount. It shows that from the mid-19th century one of the primary instruments of British politics not only on Mount Athos, but also in the Orthodox East, as a whole, was the right of British subjects (Ionian Greeks in the case of Athos) to official support and protection of British diplomats, while Russian Athonites were deprived of that right due to the lack of official Russian patronage over Russian subjects in the Ottoman Empire. The confrontation between Great Britain and Russia in the Balkans and the Eastern Mediterranean played a prominent role in the development of Russian-Greek relations and the occurrence of such a phenomenon as “Russian Athos”.

How the GDPR protects personal data in the digital age

Recent data scandals like Cambridge Analytica have heightened the need for good data protection frameworks. To address this need, the European Union adopted the General Data Protection (in short GDPR) with the aim to protect the personal data, fundamental rights and freedoms of European citizens. This article explores the ways in which the GDPR has improved the standard of data protection and ensures that data privacy issues are adequately addressed these days. Moreover, it will assess the principle of the GDPR and examine the rights of data subjects.

"REFLECTIONS ON PERSONAL DATA PROCESSING THAT IS NECESSARY FOR THE ENTERING OR PERFORMANCE OF A CONTRACT"

Even in pandemic times everyday life involves the conclusion of contracts written on paper, which in turn involves the processing of personal data not only for the performance of the contracts to which a data subject is party, but also in order to take steps at the request of the data subject prior to entering into a contract. In this regard Article 6 (1) (b) of the General Data Protection Regulation provides the legal basis that ensures the lawfulness of processing. This short article examines the limits of using this legal basis for personal data processing in the context of the controllers' obligations and the rights of the data subjects. The primary conclusion is that, although any contract can ensure the legality of personal data processing, not all personal data may be necessary for the performance of the contract, in which case another ground of processing must be used for the rest of the personal data processed, which in turn requires a thorough understanding of Regulation (EU) 2016/679 for an implementation of its provisions in their spirit and letter, the more so as an implementation of the General Data Protection Regulation limited to the preparation of documentation on the conformity of processing has no other effect than to turn it into a dead letter.

The Pivotal Role of DPAs in Digital Privacy Protection

With the widespread use of the Internet in both personal and professional life, data protection has become a critical aspect of privacy protection. The mechanisms developed in administrative law are the main tools for personal data protection in modern societies. Within the European integration process, the Republic of Serbia has established an independent data protection authority (DPA) that supervises and ensures the implementation of data protection rules, conducts inspections, acts on complaints of persons to whom the data relates, and determines whether there has been a violation of the law. This paper commences with an analysis of international legal instruments imposing a duty to establish an independent data protection supervisory authority. It goes on to further analyze the main characteristics of the national data protection system, the personal, territorial, and material scope of its application, as well as specific rights of data subjects. The efficient protection of digital privacy primarily depends on the investigative powers of the independent supervisory authority, which are also analyzed in detail. Given the global character of the Internet, the protection of personal data also depends on efficient cooperation among DPAs, the extraterritorial application of data protection rules, and adequate regulation of international transfer of personal data.