Type Of Legal Regulation Research Articles

Саморегулівні організації: юридичні особи на межі приватного і публічного права

The article analyses the legal status of self-regulatory organisations (SROs). These organisations are formed among the actors of various types of professional and business activity (lawyers, doctors, auditors, accountants, etc.), but the notion ‘self-regulatory organization’ has started to be used in legislation only recently. The main function of these organisations is to carry out self-regulation, i.e. to regulate the activity of their own members by adopting rules of conduct and monitoring compliance with them. However, these organisations often acquire regulatory powers not only from their members, who voluntarily agree to be subject to their regulation, but also from the state, which delegates to them or recognizes their public regulatory powers. This creates a kind of paradox: on the one hand, SROs are established in a manner typical of private law entities. However, on the other hand, their activities acquire the features of administrative activity. This raises a number of issues in law enforcement practice. Firstly, there are difficulties with the type of legal regulation that should be applied to the activities of these organisations - general permissive or special permissive. Secondly, the issue of court jurisdiction is ambiguous as well, i.e. which courts (administrative or commercial) have competence to resolve disputes arising between self-regulatory organisations and their members. Thirdly, the issue of compulsory membership in self-regulatory organisations is also quite acute, as this may lead to a violation of the right to freedom of association. Finally, the question of whether SROs are liable in the event of damage caused by them when exercising public authority is also ambiguous. There is a question concerning the conditions of their liability: shoud these be general conditions (Articles 1166-1167 of the Civil Code of Ukraine) or special conditions according to the rule of ‘truncated’ composition, which is typical for the liability of public authorities (Article 1173 of the Civil Code of Ukraine). This article provides a detailed analysis of these and other issues and outlines the ways to resolve them

Понятие и содержание частноправового режима

Introduction. As an element of legal regulation, private legal regime is a legal category, the concept of which is regarded ambiguously in doctrine and depends on the general understanding of the category «legal regime». Socio-economic, political changes in society are accompanied by changes in the nature of social relations, requiring proper legal regulation in the area of private interest protection.
 Methods. On the basis of the analysis of definitions of legal regime formulated in the theory of law, a generalised approach to the understanding of private legal regime was developed. The application of formal legal method made it possible to reveal the concept and specific features of the private legal regime. The system-structural method was used to determine the significance of legal means (ways, methods, principles, types of legal regulation) in the structure of private legal regime. The application of modelling enabled to reveal the effectiveness of private legal regulation of public relations.
 Results. The concept and essential features of private legal regime are identified; the model of private legal regime as a variable combination of a complex of legal means determining the orientation of private legal regulation of property and personal non-property relations based on equality, autonomy of will and material independence of their participants is defined.

Legal Support of Private Interest

There is no single point of view in legal science regarding the criteria for distinguishing public and private law. Moreover, there is no theory that would be recognized by most researchers. The reason lies in the fact that scientists in their works analyze public and private law in various aspects, in this regard, they identify such criteria of differentiation that cannot be universal.The paper considers public and private law from the standpoint of instrumental theory and define it as a system of legal means designed to satisfy public or private interests, respectively. The undoubted advantage of this theory is that it is not focused on the search for universal criteria for distinguishing public law from private law, but suggests focusing on legal means aimed at creating the conditions necessary to meet the diverse legal interests of legal subjects. It is proved that public and private law are an integral part of legal support. Legal support, depending on the purpose (the type of interest being satisfied — public or private), is proposed to be divided into two types: public law and private law. It is established that support of interests in private law differs from that one in public law in the following. It allows for the possibility of choosing or changing behaviors provided for by regulatory legal means through the manifestation of legal initiative on the part of legal entities, and the form of implementation of such an initiative is self-regulation. Legal relations on the implementation of legal means arising within the framework of private law enforcement of interests arise between legally equal subjects. Private law support of interests is designed to mediate such a type of activity as legal (legal realization) activity. Private law support of interests is characterized by such a type of legal regulation as permissive.

Features of the institute of personal data as an element of the system of law

The purpose of this research is to analyze the institute of personal data in the Russian system of law, its position within the field of information law, to identify the features of the institute as a structural element of the system. The study reflects the main theoretical approaches in the definition and correlation of such concepts as “system of law”, “legal system”, “system of legislation”, “structure of the system of law”. The connection of the institute of personal data with such concepts as privacy, the secret of private life. The article notes about modern understanding of the branches of law, their elements, and the position of the institute of personal data in it. The institute also can be called as mixed or “interbranchial”, material and procedural at the same time, special, regulatory and protective and consisting of norms of various branches of law. The paper concludes about the theoretical possibility of applying methods and types of legal regulation from the civil law to the regulation of personal data, as well as the conclusion about the permissibility of the author's approach in structuring elements of new branches of law.

The manner, method and type of legal regulation in the context of the regulatory impact of the Convention for the protection of human rights and fundamental freedoms.

The manner, method and type of legal regulation in the context of the regulatory impact of the Convention for the protection of human rights and fundamental freedoms.

SELF-REGULATION IN THE HOUSING LEGAL REGULATION MECHANISM

The purpose of the research. The increased concern in the research community to various problems of the mechanism of legal regulation, taking into account the sectoral characteristics has predetermined the need to identify its specificity in relation to the housing sector and to clarify the role of self-regulation as an independent use by participants of law enforcement activities in the field of housing system of private law means of implementation of their housing rights. The article considers the correlation between self-regulation and the most significant elements of the mechanism of legal regulation of housing relations, it also traces the dynamics of their interaction and identifies sector-specific features of self-regulation in relation to the housing sector. The purpose of the study is to identify the specific features of self-regulation in the housing sector and to determine its role in the mechanism of legal regulation of housing relations. Results. The author concludes that the complex nature of the legal regulation of housing relations, which combines elements of both private law and public law regulation, arises from the heterogeneous nature of housing relations themselves. Differentiation of legal regulation of housing relations is based on differences in methods, ways and techniques of legal impact on relations in the housing sector, which ultimately determines the peculiarities of the mechanism of their legal regulation. The central role in the system of civil law legal means of regulating that part of housing relations, which are by their legal nature civil law relations, belongs to such key civil law instruments as civil law contract, legal entity, decisions of meetings. The discretionary nature of civil law regulation of housing relations gives its participants the possibility of choosing their own legal ways and means of satisfying their private interests, and therefore the possibility of self-regulation. Self-regulation in the mechanism of legal regulation of housing relations is the use of legal means directly by the participants of the relations regulated by housing law to structure their own behaviour, independent determination of their rights and duties within the law. Self-regulation in the housing sphere is closely interconnected with such elements of the mechanism of legal regulation of housing relations as norms and legal relations. The normative foundation of self-regulation in the housing sphere is primarily of dispositive norms. The significance of dispositive rules in the regulatory impact of housing law on the housing relations that constitute its subject matter lies in enabling the parties to exercise rights and fulfil duties in accordance with an individual pattern of behaviour agreed upon in the process of self-regulation. The most important legal means by which self-regulation is achieved is the category of «discretion», which gives subjects of housing legal relations the possibility of free choice of the optimum way of exercising subjective housing rights. The legal ground for self-regulation in the housing sector is provided by the norms-principles enshrined in the housing legislation - the principle of legal equality and the principle of economic freedom, the content of which is differentiated depending on the subject composition of enforcement. Self-regulation in the field of housing has sectoral specificity determined by the peculiarities of the subject composition of the regulated relations and the object about which these relations are formed. The diversity of housing rights and the particularities of their exercise imply a wide range of subjects exercising their rights, thus requiring a constant balancing act not only between private and public interests, but also between the set of private interests themselves. In this context, the limits to the exercise of housing rights, which have a significant impact on self-regulation, are of particular importance. The exercise of certain housing rights by virtue of the requirements of housing legislation is subject to the need for getting the approval or authorisation. The peculiarity of self-regulation in housing sector is also the fact that for the emergence of most legal relations, in which housing rights and duties are implemented, self-regulation alone is not enough, but individual-contractual regulation is required, which, compared to other types of legal regulation, is more dependent on the will of the subjects of contractual obligation, optimization of interaction between the subjects is achieved through self-regulation. The use of the contractual form of regulation makes it possible to coordinate the multiple interests of the participants in housing relationships.

Contract as a source of legal regulation of civil and family relations

In the scientific article, the author justifies that a person is an active participant in civil and family relations every day. The sphere of family life is an integral part of our existence. Civil legal relations expand the opportunities of their participants by satisfying personal non-property and property needs and interests. Along with other regulators of social relations, the role of the contract in influencing the studied legal relations is decisive.
 The formation of the contract as an independent source of law has a long history. Its role, along with such widespread sources of law as normative legal act, custom and others, is important. In general, scientific works in the field of civil and family law are enough to study the contract as a source of law, but not enough attention is paid to the issue of the contract as a source of legal regulation of family and civil relations.
 The contract is the main regulator of civil legal relations, we also note its important influence on the regulation of family relations.
 The author investigated the approaches of scientists in the theory of the state and law to the definition of the concept of "source of law", "form of law", "legal regulation". It has been established that the contract is both a source of law and a source of legal regulation. These concepts are not identical.
 The types of legal regulation are disclosed and it is determined that the contract is the source of individual regulation of civil and family relations.
 In the conclusions, the author defines the concept of a contract as a source of legal regulation of civil and family relations as an external form of expression of the rules of conduct established by the participants of relations to regulate civil and family relations that arise, change and terminate in connection with the conclusion of such a contract. The main features are also defined.

Typology of Legal Regulation of Value-Added Taxation in the BRICS States

Value-added taxation (VAT) is an essential component of the financial system of any modern state, which determines the attention of the legislator to the development of its legal regulation, as well as the subject of this article. The processes of transformation of VAT legal regulation systems that are observed in the BRICS countries (the People’s Republic of China, the Republic of India, the Federal Republic of Brazil, the Russian Federation, and the Republic of South Africa) demonstrate the greatest activity in this area of legal relations. The task of studying such changes, which makes it possible to identify common features and individual features of various types of legal regulation of value-added taxation, is solved on the basis of an integrated assessment of the characteristics of the tax redistribution of value added. Based on the results of their research, the types of legal regulation of VAT in the BRICS countries are identified and the place that the Russian model of legal regulation of VAT occupies in this classification is determined.

General Legal Type of Legal Regulation and Practice of the Supreme Court in Ukraine: Features of Objectification

The article presents possible forms of realisation of human freedom in its relations with the state, in particular, through legal regulation of the general permit type. The purpose of the article is to study this type of regulation based on the case law of the Supreme Court in Ukraine, as one of the most effective bodies in ensuring proper balance of interests of the individual and the state, which forms the methodological basis of human rights protection mechanism. The methodological approaches used are anthroposocial – to establish the essential basis of general regulatory regulation, which is associated with self-expression of the individual within the existing legal order, and axiological – to ensure the value nature of law. The general permissive basis of interaction between a person and the state has been identified, which is conditioned by the legislative consolidation of their relations under the scheme “everything that is not prohibited by law is allowed”. This general permitting basis was analysed on the basis of acts of the Supreme Court, which allowed to identify direct and indirect objectification of general permits as the basis of the studied type of regulation. It is proposed to link direct objectification with the fixation in the decisions of the Supreme Court of the full permit structure (“everything is possible except”) or its elements – the main limiters of the general permit (legal prohibitions and legal obligations). It is established that the function of the objectifier of general permission is performed by special legal permits, which are addressed to individuals and are reflected in the concepts of “subjective right” and “legitimate interest”. Indirect objectification is stated through special permits, which are reflected in the construction “allowed directly provided by law.” In this aspect, the issue of state discretion was further developed

Prospects for the formation of legal (judicial) doctrines: the experience of the USA and the possibilities of reception

The current realities of the rapid development of technology and the social relations that are becoming more complicated in this regard require the formation of new forms and types of legal regulation. At the same time, it is fair to consider the quantitative criterion of accepted legal norms as an ineffective way to eliminate the uncertainty of law. In turn, the practice of using legal doctrines as a source of law in the Anglo-Saxon legal system for several centuries has shown its effectiveness in regulating relations that remain outside the legal space, while taking into account both legal tradition, doctrinal interpretations of legal scholars, and established judicial practice. In the study, the author suggests the formation of sectoral legal doctrines by analogy with the experience of using similar institutions in the United States of America as a perspective for the development of Russian legal science and practice. For this purpose, the features of the institute of legal doctrines in the USA are considered. As a result of the research, the author comes to the conclusion about the possibility of successful extrapolation of this institute. At the same time, it is emphasized that the process of forming sectoral legal doctrines should consist in collecting empirical material, monitoring data on the operation of regulatory legal acts and the results of scientific activity. However, as a result of this time-consuming process, doctrines will become a tool that allows determining the proper legal regulation of rapidly changing public relations, without waiting for the result of a long law-making process and will be a help for both legislators and law enforcement officers.

ESTABLISHMENT AND DEVELOPMENT OF LEGAL REGULATION OF INTERNATIONAL COOPERATION IN THE SPHERE OF CRIMINAL PROCEDURE

The article examines the problems of the formation and development of the main institutions of international cooperation in the field of criminal procedure. The doctrinal approaches and norms of the first international treaties in this area are analyzed. The first institutions and directions of international cooperation in the field of criminal procedure are outlined, their specificity and features are revealed. It is noted that the first legal institution in the field of international cooperation, which later became directly related to the sphere of criminal procedure, was the institution of extradition (this institution, throughout its history, has been and remains a system consisting of several procedures by which one sovereign issues another sovereign a person (criminal) who has committed a crime and is wanted). Attention is focused on the fact that from ancient times until the end of the seventeenth century, extradition was not an institution of international law, let alone a criminal process. The vast majority of extradition cases were caused by political or religious circumstances, but not by the need for mutual assistance in the framework of the criminal process. Therefore, most of the known treaties of this period provided for the extradition of exclusively political and religious criminals or defectors. It is noted that similar tendencies of the institution of extradition were characteristic in the territory of Ukraine. An outstanding role in the formation of the foundations of international cooperation in the territory of Kууivs’ka Rus’ was played by «Russian Truth», which contained the norms of criminal, inheritance, commercial and procedural legislation. It was determined that from the 17th century the first scientific comments and principles of international cooperation in the fight against crime began to appear, and the foundation was laid for the formation in the doctrine of international law of the concept, which is defined in our time as the commission of criminal prosecution at the request of a foreign state. The periodization of international cooperation in the field of criminal procedure has been developed, namely, six historical periods have been identified, each of which has its own type of legal regulation.

Особенности индивидуального правового регулирования обстоятельств непреодолимой силы

The article reveals the specifics of individual legal regulation of force majeure circumstances. The author analyzes the existing legal science classifications of the designated type of legal regulation, examines the features of each of them, provides examples from the current Russian legislation and materials of judicial practice. The characteristic features of individual legal regulation, under which force majeure circumstances fall, are formulated.

Причины институционализации административной ответственности в постреволюционной России (1917–1924 гг.).

Introduction. The relevance of this topic is due to the ongoing reform of responsibility for administrative offenses, discussions in the scientific literature on the delimitation of crimes and administrative offenses and the grounds for their delinquency. The study of the historical stages of the normative isolation of responsibility for administrative offenses from the point of view of events taking place in political, economic and social life, in our opinion, helps in determining the development trends of this institution. In this article, the author aims to identify the reasons and conditions for administrative responsibility as an independent institution after the Great October Socialist Revolution. The gradual normative separation of responsibility for administrative offenses from criminal responsibility falls on the period of war communism and the first half of the New Economic Policy (NEP). Methods. The author uses the classical historical and legal research method, which includes both a chronological analysis of social, political and economic factors, and a study of the legal regulation of legal institutions over a period of time. Results. In the first years of Soviet power, administrative coercion, along with other measures of state coercion, was considered as one of the means of strengthening socialist legality and fundamental order and security. The normative separation of administrative responsibility from criminal responsibility during the first half of the new economic policy was due to the development of economic relations and technical progress. In general, it was associated with Soviet ideology, a permissive type of legal regulation, an increase in the number of rules issued by the state in various spheres of public life, the creation of control and supervisory bodies that required their own operational leverage on citizens and organizations, including in the form of imposing penalties.

механизме правового регулирования гражданского оборота

This article is a development of the author's concept of civil circulation, according to which the latter should be perceived not as a legal form of economic circulation (as it is established in the Russian civilistic doctrine), but as a systematically organized sphere of actual (real) relations of subjects, representing an economic subsystem of society, which should be subject to legal regulation due to its social importance. Choosing the mechanism of legal regulation of civil circulation as the subject of this study, the author highlights approaches to the understanding of the mechanism of legal regulation (available in the general theory of law) and to the issue of its elements, the types of legal regulation allocated in science. On this basis, the author formulates a general definition of the mechanism of civil circulation legal regulation, and gives characteristics of legal regulation means and types of this social sphere. The mechanism of civil circulation legal regulation is defined as a system of legal means, by which legal regulation (ordering) of social connections (relations) that form civil circulation as a sphere of society is carried out. It is noted that the elements of the mechanism of civil circulation legal regulation are such legal means as: 1) norms of positive law; 2) (specific) legal relations of subjects of civil circulation; 3) acts of implementation of legal opportunities and obligations by participants in civil circulation; 4) (optionally) acts of law application. It is summarized that the peculiarity of these means of the civil circulation legal regulation mechanism is the presence of «intersectoral component», caused by the specificity of civil circulation as an object of legal regulation. The author pays attention to the necessity of developing a general (intersectoral) doctrine of the civil circulation legal regulation mechanism. It is argued that the legal regulation of civil circulation is carried out not through a combination of two types of legal regulation – public law and private law types, but through the only one – general permissive type.

DEVELOPMENT OF LEGISLATION ON HUMAN CLONING: WORLD EXPERIENCE AND A PROMISING LEGAL MODEL FOR MODERN RUSSIA

The relevance of the research is due to the invariance of approaches to the legal regulation of public relations in the field of human cloning, the need for semantic differentiation of the concept of cloning, which ensures formation of an adequate attitude of society and the state to human cloning and development of an optimal model of legal regulation of public relations in this area. The purpose of the research is to select and justify a promising model of legal regulation of public relations in the field of human cloning in modern Russia. Achieving this goal calls for analysis of international legal acts and the system of legislation of foreign countries, as well as approaches to regulating public relations that have been formed in legal doctrine and medical practice. Based on the obtained empirical data, the author conducts a General theoretical characterization of the type of legal regulation, suggest recommendations for improving the legal regime, and substantiates the prospects of the proposed model of legal regulation of public relations in the field of human cloning. The level of philosophical methodology in the study is represented by the General principles of knowledge and categorical structure of science as a whole. The level of General scientific principles and forms of research is characterized by applying the systemic analysis techniques, the method of ascent from the abstract to the concrete, as well as General logical methods: analysis, synthesis, abstraction, and analogy. At the level of concrete scientific methodology, this study employs the comparative method and the special legal method.

Code Driven Law. Scaling the Past and Freezing the Future

This paper will explore what has been called ‘cryptographic law’ or ‘smart regulation’, referring to self-executing code as a new type of legal regulation. The first part of the paper describes what code-driven law ‘is’ by explaining what it ‘does’. We will then investigate the assumptions of code-driven law, notably concerning our ability to sufficiently foresee the future at the moment of codifying legal norms. This will be related to the concept of legal certainty and connected with the other constitutive aims of the law, those of justice and instrumentality. Finally, the paper will inquire into the nature of code-driven law, raising the question of the meaning of ‘legal by design’ and its relationship to ‘legal protection by design’.

Features of legal regulation in the field of military-technical cooperation: the orig-inal beginning (principles)

The article is devoted to exploring of peculiarities of legal regulation of relations, arising in the sale of Russian military products on the world arms market. Types of legal regulation, administrative and private law institutions, existing in the implementation of international trade transactions in the sphere of military cooperation, have been revealed. The scopes of the general prohibitions and permissions which in conjunctions determine uniqueness of legal regulation in implementing of the government policy in the sphere of the military technical cooperation have been defined.

Forms of Realizing the Right to Freedom of Peaceful Assembly

It has been grounded that the right to freedom of peaceful assembly is a unique right that unites the right and freedom of its realization. The realization of this right by some subjects, as well as the obligation of public administration subjects to create conditions for the unimpeded realization of the right to freedom of peaceful assembly require an understanding of the outer shell (form) of realizing the right to freedom of peaceful assembly.
 Forms of realizing the right to freedom of peaceful assembly have been studied. It has been substantiated that the realization of this right is not limited to the constitutionally prescribed forms, namely meetings, rallies, marches and demonstrations. Much more forms of realizing the right to freedom of peaceful assembly are contained in subordinate regulatory acts. The legal order in Ukraine, based on a generally acceptable type of legal regulation, reveals a number of new forms, which in their essence are forms of realizing the right to peaceful assembly.
 On the basis of the analysis of the current legislation and the current legal doctrine, the author has formulated classification features and has conducted classification of the forms of realizing the right to freedom of peaceful assembly. The classification is based on such features as normative and legal certainty (constitutional, normatively defined forms and others), involvement of participants (internal and external forms), mobility (static and dynamic forms), isolation of participants (closed and open forms), venue (gatherings held indoors or outdoors), sphere of interests’ realization (political, social, economic, cultural, sports, etc.).
 It has been summarized that the forms of realizing the right to freedom of peaceful assembly make it possible to understand the purpose pursued by the subject of realizing this right, and the place of holding a peaceful assembly significantly influences the further mechanism of ensuring its realization, since the combination of the form and content of the right to freedom of peaceful assembly makes it possible to understand the true essence of this right, as well as to adjust measures to ensure its realization in order to create optimal conditions not only for the realization of this right, but also to prevent its abuse. Thus, they guarantee the rights, freedoms and interests of the rest of the population.

On the Problem of Dispositive Norms of Private and Public Law of Modern Russia

It seems that dispositiveness in law is expressed not only in the methods, methods and types of legal regulation, but also in the relevant norms that objectively determine the independence and autonomy of the subjects of the realization of the law. Aims of the study: the purpose of the scientific article is the substantiation of the existence and functioning of norms of law not only in the private law branches, as many theoreticians believe, but also in public. To achieve this goal, the following tasks are set: to reveal the concept of disposability and to determine its relationship with the norms of law; group the positions of the authors from the point of view of their evaluation of norms: 1) scientists who show negative attitude towards norms; 2) authors who recognize norms, however, while focusing only on private law; 3) theorists who recognize the existence of legal norms, both in private and in public law, while emphasizing its more reasoned; analyze the features of norms, which in private law are of dominant importance; to show specificity of norms of law in various branches of public law (criminal procedural, criminal, tax);taking into account the effect of norms, both in private and in public law, clarify the concept of dispositive norm, which is associated with valuation concepts, the content of which is disclosed in the process of exercising the law; to analyze appraisal concepts, which necessarily lead to norms; to show the interaction of norms of private and public law. As a result of the conducted research it can be concluded that norms exist and function not only in private but also in public law; their presence is largely determined by the so-called valuation concepts, which, in turn, determine the legal activity of both citizens and officials of the relevant state bodies. In the conclusion it should be noted that regulations of both private, and public law, are in interaction with the relevant peremptory norms, anyway, correspond to them.

State ideology and state policy in the labor market: Russian experience

The subject of the paper is state ideology is an element of labor market.The main aim of the paper is to confirm or disprove the hypothesis that main tasks of state ideology as a key element of labor market are positive motivation to systematic long-term employment, as well as social responsibility of business by strengthening the information function of labor legislation.The methodology of the study includes general scientific methods (analysis, synthesis, comparative method, description) as well as particular academic methods (formal-legal method, interpretation of legal acts).The main results and scope of their application. The modern labor market should be defined as the vacancy market. At the same time, neither the concept of a vacancy nor its characteristics are established by legislation. The state ideology plays an important role among other information flows in the system of mandatory structural elements of the labor market. The state ideology accompanies the socio-economic development of society. The formation of labor motivation holds the dominant position in the organization of the labor market. State policy in relations on the organization of the labor market is a set of management decisions of the authorities, which form the state ideology among other things. The state, when realize its interests in the sphere of labor legislation, should actively use the so-called advisory type of legal regulation of labor relations. The proposed analysis may become a crucial point for future legal research in the field of labor market.Conclusions. Positive motivation to systematic long-term employment, as well as social responsibility of business are the main tasks of state ideology as a key element of labor market. The formation and consolidation of such ideology will make it possible to apply the provisions of labor legislation more accurately in accordance with its meaning and purpose.