Substantive Law Research Articles

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.

Classification of Typical Tasks of Forensic Linguistics

The main problem in forensic linguistic theory is the lack of an agreeable classification of expert tasks. Since the concept of expert task precedes concepts of method and methodology, it is clear that without regularizing tasks, further theoretical understanding of this subject area is impossible.
 The purpose of our article is a theoretical revision of this topic. Definitions of the term "expert task" are specified, and bases for classifying tasks common to all kinds and types of forensic examination are listed. We've checked classification options found in modern methodological and teaching publications on forensic linguistics in Russian ("Semantic Research in Forensic Linguistic Expertise" by RFCFS of the Russian Ministry of Justice, textbook by prof. Elena Galyashina, manual by ECC of the Russian Ministry of Internal Affairs). We've evaluated their logical correctness and compliance with the criminalistic and philological scientific basis. The conclusion is made about the suitability of some and unsuitability of other options: it is better to use the classification proposed by ECC of the Russian Ministry of Internal Affairs (tasks on denotative, evaluative, illocutionary, and extralinguistic components of a speech object). We've also concluded that it is unproductive to classify forensic linguistic tasks on a substantive law basis (tasks in cases of extremism, cases of libel, cases of corruption crimes, etc.). Such an understanding of expert tasks leads to systematic work outside of expert competence, in the field of law: an expert linguist plays the role of a competent investigation officer.

현행 군형사법 체계의 합리적 개선방안

As a basic law that regulates the system and composition of military justice, the Military Court Act has undergone numerous revisions based on the Military Courts Act enacted in 1962, and when viewed from a larger perspective, changes in practical meaning are still lacking. Although this was discovered, it is also true that relatively recent revisions have brought about significant changes. Unlike the Military Court Act, which has gone through about 40 revisions starting from the Military Court Act enacted on January 20, 1962, the Military Criminal Act, which is a substantive law, has been relatively revised in terms of frequency and content of revision even though it was enacted at the same time. It has gone through a gradual change. This difference can be seen as a natural result of the nature of procedural law and substantive law, but despite various controversies, including the unconstitutionality of the military criminal law's requirements, the actual revisions are too passive and insufficient to give practical meaning. many.
 In this way, unlike the Military Court Act, the Military Criminal Act does not show any significant changes in reality, but considering the social distrust of military justice and the resulting need for change, the immediate task is to explore the necessity and direction of change in the Military Criminal Act, which is the substantive law. It has been done. The purpose of this article is to examine whether there are any problems or need for improvement in the Military Criminal Act in connection with the revisions to the Military Court Act, and based on this, to present alternatives to improve the problems of the Military Criminal Act. In conclusion, we cannot support the position of the Ministry of National Defense, which has consistently argued that it is premature based on arguments that cannot be agreed upon, and emphasized that it is time to move forward with drastic reform of the military criminal justice system. And the starting point should be found in the temporary legalization of the military criminal law, which is a substantive law, and the subsequent abolition of peacetime military courts, through which it was believed that the ultimate liquidation of the peacetime military criminal law system would be possible.

Criminal proceedings

Offences that break the rules in the area of criminal law will lead to conflicts in criminal law, and to this end, the judiciary must resolve criminal proceedings. Criminal conduct can be reviewed and analysed from the perspective of substantive, substantive law, procedural law and formal law. With the adoption and promulgation of criminal law, a criminal legal relationship was formed. Defending social values and imposing certain behaviors, on the other hand are individuals. Laws or laws covered by the provisions of the Criminal Code. The state has the right to prosecute without observing the rules of criminal law, which is an important part of criminal proceedings. When committing a crime, the judicial department exercises its right to defend social values by promoting criminal behavior, so virtual laws have been substantially transformed and are becoming active, and criminal proceedings have begun to restore law and order. Criminal procedure is a right, from a procedural perspective, it is an abstraction and it is a lever to exercise this right. In criminal law governing criminal acts, the prosecution of conflicts caused by violations of criminal law is implicitly institutionalized to prosecute those who commit such acts. Criminal disputes, as a legal means of transmitting conflict reports to court, already exist in the legal norms of criminal law, but have become a specific means and can be used. The consequence of committing an unlawful act is the use (exercise) of the act. Until the moment when the illegal act is committed, the act conferred by the legal norms practically exists as a legal power of creation. From that moment on, the act can be exercised, that is, a power with real effect.

Judicial Boundaries: Understanding the Scope of Military Courts in the Pakistani Legal Framework

In this article, we will analyze the criminal justice system of Pakistan. This article will provide insight into the system, what guarantees are provided by it, and what are the shortcomings of the system. Furthermore, we will see the role of Anti-Terrorism Courts in convicting the terrorists. In Pakistan's criminal justice system, there are several instruments to deal with terrorism. The criminal procedure code is the basic procedural law that is applied to almost all criminal proceedings. Pakistan penal code is the basic substantive law that contains the definition of the offenses and then also prescribes punishments for them. Since Pakistan has been facing the sedition of terrorism for a long time, it has developed a specific instrument for terrorism that supplements the criminal procedure code and Pakistan penal code. The Anti-terrorism Act of 1997 and the special courts formed under this Act are the specific instruments developed for counting terrorism. Further, the Protection of Pakistan Act and the 21st Constitutional Amendment are all the measures taken in the same regard to eliminate and eradicate terrorism. Before establishing military courts, Pakistan already had a proper judicial system to try the terrorists. Although questions can be raised regarding the performance of the courts, it cannot be denied that proper laws and courts were there before.

Вопросы судебного доказывания по гражданским делам о защите чести и достоинства граждан, а также деловой репутации граждан и юридических лиц

Development of scientific problems of judicial evidence in civil cases on the protection of honor and dignity of citizens, as well as business reputation of citizens and legal entities has been and continues to be relevant, since judicial protection of these intangible goods is the main form of their protection. The aim of the study is determined by the objectively urgent need to find constructive approaches to judicial proof in civil cases on the protection of honor and dignity of citizens, as well as business reputation of citizens and legal entities. Conclu-sions dwells upon the fact that, given the principle of adversarial nature of civilized process, judicial proof is one of its key elements, which is an inter-branch procedural-legal institute. The evidence in civil cases for the protection of honor, dignity and business reputation has different features from other categories of cases, in-cluding the determination of the necessary scope of evidence and its sufficiency. It is precisely this circum-stance that prompted the preparation of this article. The article analyzes features of the subject of proof, duties of proof, means of proof, gathering verification and evaluation of evidence, as well as the standard for defama-tion disputes. Applied to the research topic, both norms of procedural law and substantive civil law are ana-lyzed. The following methods are used: dialectical, formal-logical and other general scientific methods of re-search; special-legal methods: comparative-legal and formal-legal.

The Void Ab Initio Theory in Comparative Perspective: J Marshall, H Kelsen, and Beyond

Abstract The void ab initio theory is traditionally associated with the retroactive effect of the unconstitutionality of a statute, in diffused systems of judicial review; as opposed to the prospective effect of unconstitutionality, in Austria, the archetype of centralized judicial review. The paper argues that the void ab initio theory goes far beyond the time-factor of judicial review, having two complementary aspects: 1) The void ab initio theory is tied to a robust theory of negative liberty; and substantive criminal law is its privileged field of application. The void ab initio theory goes back to Marbury v Madison (1803). 2) The void ab initio theory was strongly criticized by Kelsen, whose criticism is accurate, when the theory is unduly extended to the unconstitutionality of laws curtailing positive rights of the welfare state, eg, salaries and pensions, as happened recently in Greece. The act which abolishes the unconstitutional statute retroactively, has ‘the character of a legislative act.’ Indeed, the void ab initio theory in the field of positive social rights encroaches on legislative competence. The paper cocludes that the void ab initio theory is a strong expression of the ethos of legality; The void ab initio is most adequate for (cases involving) legal sanctions, on legal grounds, over adjudicative facts.

An elephant in the room—EU policy gaps in the regulation of moderating illegal sexual content on video-sharing platforms

Abstract With the availability of broadband internet and a significant increase in storage capacity, people are sharing a dynamically growing amount of multimedia content on video-sharing platforms, including sexually explicit content. While sexual content on the internet is not illegal per se and remains in the domain of economic services, there are certain forms of sexually explicit content that are criminally unlawful, such as child pornography or non-consensual pornography. This article explores why the current business-oriented regulatory environment fails to provide effective tools to combat illegal sexual content: first, from the perspective of content moderation on video-sharing platforms, and then from the perspective of substantive criminal law. After mapping the gaps in policy at all levels of content regulation, the article offers recommendations to address these issues, open up a policy debate and influence policy makers.

East African Community (eac) – Inspiring Constitutional Change by Promoting Constitutionalism?

Abstract The East African Community (eac) is considered to be one of the most successful international organizations in Africa. Due to the founding Treaty’s commitment to democracy, human rights, rule of law and to achieving of a political federation, one may think that the eac has a potential to promote the ideas of transformative African constitutionalism in the participating states. However, the history of regional integration in East Africa, the eac’s current institutional set-up and its substantive law tell a different story. The organization’s elitist legacy and an integration model depending on the goodwill of the heads of state do not fully deliver on the principles which the Treaty pronounces. It is the pro-active stance taken by the East African Court of Justice (eacj) and to some extent also by the East African Legislative Assembly (eala) that keeps the constitutionalism and the hopes of East Africans alive.

The Balance in Consumer Protection Between Substantive Law and Enforcement

Traditionally, consumer law has suffered from underenforcement in many countries. Reasons are, in particular, insufficient incentives or means for individual enforcement, the lack of effective collective remedies and/or insufficient resources or the lack of interest of public authorities and/or consumer organizations. Thus, even where strict rules on substantive consumer protection exist, authors diagnosed an incentive not to comply with the law. Quite recently, the picture has changed, at least in certain sectors of business. This is mainly due to technological advancement. The use of digital technology, commonly referred to as ‘legal technology’ or ‘legal tech’, allows the legal profession to drastically increase the efficiency in handling claims. Legal tech claims management companies have been particularly successful in the area of air passengers’ rights but the use of legal tech has also facilitated the mass handling of similar claims, for example, resulting from the Volkswagen diesel scandal. This latter development led to a debate about „overenforcement“. It has been argued that a massive increase in enforcement of existing consumer law may necessitate the relaxation of the substantive law standard. This article discusses the relationship between substantive consumer law and its enforcement, thereby using examples from recent case law and from the current political debate.

The concept and nature of the occurrence of doctrinal legal errors

The concept and nature of the occurrence of doctrinal legal errors

The Catholic Church and a Person’s Right to Privacy and Protection of His Good Reputation

In the Roman Catholic Church, a person’s right to privacy and to the protection of a good reputation are regulated in can. 220 CIC (cf. c. 23 CCEO). Unfortunately, the scope of the rights protected under this canon has not been given a uniform definition either in the legislation or in the doctrine, which means that the Christian faithful often encounter problems in the enjoyment of their rights.
 In view of this, I embarked on an attempt to define the scope of the right to privacy and protection of one’s good reputation, both from the vantage point of substantive law as well as from the perspective of persons vindicating this right. The second aim of the research conducted for this publication was to determine whether the nature of these rights is absolute, or whether they may be subject to restriction, and if so, on what grounds.

Operationalisation of legislation and the will of legislators in the judgments of international courts of war crimes and post-war recovery

ABSTRACT If the substantive truth, the actual situation in a war and post-war recovery based on the consequences of the war, is seemingly easy to determine in law, the judgments of international courts deciding on cases which occurred during the war do not attest to this. Substantive law is important, but procedural law is perhaps more significant with regard to rulings on war and post-war recovery. Only the highest degree of certainty is sufficient for a final and enforceable judgment. One of the key conditions for reaching a final and enforceable judgment is the consideration of the substantive and procedural conditions of proof, which is not possible without legal, relevant and legitimate evidence. This article argues that it should not be forgotten that in cases of legal proceedings against a certain military commander, the country whose armed forces they commanded is also always involved. If a member of a certain armed forces is legally convicted or acquitted, the country on whose behalf they acted as a military person in a military unit of that country is also legally convicted or acquitted. So, in international judicial proceedings, the implementation of procedural legislation and the will of legislators in war and post-war recovery has a different meaning from ‘ordinary’ criminality. War, as an extreme form of human violence which results in the biggest and most tragic events experienced by a country and its population, requires special forms of proving the consequences of war actions. The International Humanitarian Fact-Finding Commission should perhaps play a much greater role in this than it currently does.

Overlapping governmentalities and the cosmo-politics of Mongolian water- and miningscapes

Since transitioning to a market-based economy, Mongolia has experienced a mining boom that turned extractive industries into a key contributor to the country’s national budget. However, benefits from mining activities are allocated unevenly, with increasing rural poverty and degradation of water resources that threaten the livelihood and health of pastoralists, in particular. Regulatory efforts to improve the protection of water resources are confronted with severe implementation challenges as notions of what constitutes appropriate interpretations of the rules and appropriate ways of behaving diverge.Applying Foucault’s concept of governmentality and tying it to the literature on social imaginaries, I show how different rationalities overlap in Mongolian water- and miningscapes. They shape an extractive imaginary perpetuated by technical- managerial truth claims, an increasing monetization of social and social-environmental relationships, an imperative for industrial-economic development, and a state that performs sovereignty by enforcing procedures rather than substantive laws. However, an alternative, cosmo-political imaginary exists that derives its moral imperatives and individual incentive structures from an understanding that human land-use is contingent on the approval of spiritual entities that inhabit nature. As multiple governmentalities exercise power simultaneously, their interaction produces subjectivities that align with various and contradictory positions towards mining and that require negotiation. This challenges simplistic accounts of a homogeneous ‘state’ or ‘community’, as well as a priori assumptions about the interests and rationalities that motivate the behavior of stakeholders. It thus supports a call for environmental governance research and practice to give more attention to the cognitive-symbolic dimension of social-environmental interactions.

About some problems of law enforcement activities in the field of state social assistance and support to poor citizens in Russia

The subject of the study is the most common conflict situations that are resolved, mainly in court, in the field of providing state social assistance and support to the poor citizens. The author analyzes the existing, rather extensive judicial practice in this area, focusing on the most socially significant aspects of law enforcement that need further improvement. The methodological basis of the study was a set of general scientific methods of cognition, based on a dialectical general philosophical basis, and, in turn, determining the use of certain private scientific methods, primarily statistical methods in the law enforcement sphere. The article was prepared as part of the state assignment to the Financial University under the Government of the Russian Federation in 2023. The sphere of assistance to low-income citizens and families is extremely conflictual from the point of view of law enforcement. The most common categories include legal disputes related to: contradictions between federal legislation and regulatory acts of the regions of the Russian Federation; imperfection of federal and regional legislation; improper application of the norms of substantive and procedural law; violation of the terms of the social contract; recovery of funds unreasonably paid to recipients of social assistance; bringing to administrative responsibility for misuse budget funds; challenging the refusal to provide social services, in the form of vouchers for sanatorium treatment.

Study on the Compensation Problem of Transactional Depreciation Loss

Due to the lack of specific, substantive civil law regulating transactional depreciation damages of, and the increasing amount of related cases, the appeal of transactional depreciation compensation, including vehicle transactional depreciation compensation and housing transactional depreciation compensation,is booming. It is necessary to study its compensability and constitutive elements in detail. Trading depreciation is an objective damage. It is a direct loss and within the protection of tort law.

The Traditional Knowledge Bill, 2016: Biopiracy and Protection of Cultural Rights

Traditional knowledge is such knowledge which has been present and preserved by a traditional or indigenous community from time immemorial which has a market potential to be exploited commercially. The authors through this paper put forth the urgency of this critical legal issue which can be a huge monetization market for developing and culturally rich countries like India. The research has given a special focus on the historical background of various cases of biopiracy which can create a base in understanding this urgency both in terms of substantive and procedural law. As an apt description given under the Statement of Objects and Reasons of the Traditional Knowledge Bill, 2016[1], it is of urgent consideration to identify legal regulation over commercial misappropriation of Traditional Knowledge. Against this background, it would be pertinent to examine The United Nations’ Declaration on the Rights of Indigenous Peoples, 2007 (UNDRIP) with the central aim of understanding the scope and extent of protection of traditional knowledge owned by indigenous people.
 

Debunking the myth of instant harmonisation and embracing the iterative approach

Calls for federal harmonisation of legislation can result in a heated debate revolving around substantive law and an approach to achieve harmonisation. Some favour a bottom-up approach whereby the state and territory jurisdictions achieve uniform legislation without interference from the Commonwealth. Others favour a top-down approach whereby the Commonwealth achieves uniform legislation. This article argues that these two approaches create a false impression of instant harmonisation. Harmonisation of legislation cannot be treated as a short-term project in which uniformity has to be achieved by a specified deadline; rather, the exercise of harmonisation requires ongoing reforms based on consecutive waves. Therefore, policymakers, law reformers and legislative drafters must adopt a long-term view of harmonisation as an iterative process.

The questionable necessity of a new human right against being subject to automated decision-making

Abstract The development and interest in decision-making that is or can be automated have opened the doors of debate regarding the form and substance of related means of regulating its application. Part of this discourse involves proposals advocating for the creation of a new human right not to be subject to an automated decision. This article questions whether such a right is necessary in light of existing substantive rules under legal frameworks already applicable to automated decision-making, specifically data protection, non-discrimination and human rights. There are also procedural challenges requiring treatment if automated decision-making is to be adequately addressed by application of the law. Exploring these challenges helps appreciate the significance of ensuring that existing substantive law is better implemented for the purpose of protecting human beings in settings where automated decision-making poses risks to individuals and groups.

Why Prosecuting Aggression in Ukraine as a Crime Against Humanity Might Make Sense

Abstract The idea that aggression can and maybe should be prosecuted in some instances as a crime against humanity is a marginal one that has nonetheless been floated for a while. This article revisits the idea in the context of efforts to prosecute the leaders of the Russian aggression in Ukraine. It argues that the case that aggression is a crime against humanity has been framed along excessively reductionist lines focusing on ‘other inhumane acts’ as a predicate offence. Instead, the article suggests that there can be a deep overlap between the notion of an armed attack against a state as defining aggression, and the notion of a ‘widespread or systematic attack against a civilian population’ as the chapeau of crimes against humanity. Working at this intersection, it is suggested, makes sense of the special place of aggression as an offence generative of many others, as well as the particular sovereign deliberateness involved in launching an attack. The article explores some of the concerns that such a prosecution might trigger, including that it misses the opportunity to prosecute aggression as such, is in bad faith, or does not cover significant portions of what is rightly considered wrong about aggression. The article concludes in favor of an imaginative take on the substantive law resources that are there rather than the search for new jurisdictional solutions.