scholarly journals COMMERCIAL TRANSACTION: FEATURES OF LEGAL REGULATION

2021 ◽  
Vol 37 (1) ◽  
pp. 75-79
Author(s):  
R.D. Farkhutdinov ◽  

The article suggests and justifies the concept of "commercial transaction" is currently not fixed in civil legislation as a civil definition, while a number of scientists have repeatedly justified the need and importance of fixing such a concept to solve a number of problems in legal regulation. In addition, it offers ways to solve the problem of the conceptual apparatus of the practice of separate consideration of "commercial transactions" in civil law, which allows solving a number of practical problems of law enforcement. The article uses comparative, formal-legal and functional research methods. The article identifies individual features of a commercial transaction, the legal limits of mutual synthesis of public and private interests, and determines the forms of protection of such interests.

Author(s):  
Victor V. Ignatenko ◽  
Natalya W. Vasilyeva ◽  
Yulia W. Pyatkovskaya

The article refers to investigating problems of legal regulation of parafiscal payments and ways of their solving. It marks the increasing number of payments as well as strengthening scientists’ interest to the issue in recent years. However, it has not led to legal regulation improvement of the sphere. While studying the issues the authors use the conceptual approach to consider the obligatory payments accumulated out of the budgetary system as “parafiscalities” that is supported by law enforcement practice. Analysing the main characteristics of parafiscal payments, the authors compare them with taxes and levies, separating the last, first of all, according to the purpose of establishing and collecting ones that are expected to satisfy not the state (municipal), but other public social or economic interests. The article also reveals negative sides of current parafiscal system that are mostly caused by legal regulation insufficiency in the sphere. In addition, it highlights the necessity of legislative definition for basic fundamentals to establish, introduce and levy payments providing public and private interests balance and that will ensure protection of payers’ rights who make parafiscal payments. The article also raises the problem of strengthening the financial control over the parafiscal payment system that is also possible only in case of complex legal regulation of all obligatory payments coming to the decentralized public funds


Author(s):  
A. S. Tymoshenko

The article discusses the issues of interpretation and applicability in competition law and in antitrust law enforcement practice of the civil law principle of good faith. The theoretical view of the concept of good faith as incompatible with the nature of public law is criticized.The law enforcement practice in cases of violation of antitrust laws by participants of anticompetitive agreements was studied, which influenced the formation of key judicial positions related to assessing compliance with the principle of good faith by bidders. According to the results of the study, it was concluded that the civil law principle of good faith is at the same time a general principle of competition law as an integrated branch of law combining public and private principles of legal regulation.It is noted that the use of this principle for legal assessment of the actions of participants in cartel agreements at tenders is not only an important tool to counteract cartelization of state and municipal procurements, but also a means of creating a business ethics of entrepreneurial relations in the public interest.


Author(s):  
I. Yu. Rogaleva ◽  
G. A. Rogaleva

In article one of current problems of modern legal regulation in Russia – lack of due legal support of the labor relations in the sphere to digital economy is considered. The complexity consists in interindustry, cross-disciplinary regulation of the specified public relations that allows to speak about existence of the complex legal institute of the labor relations in the sphere of digital economy including norms of labor, economic, administrative law. The interindustry character of the analyzed public relations results in fragmentariness and discrepancy of the changes made to acts that has negative effect on law enforcement, and at times and violates the rights, legitimate interests of various parties of the labor relations (workers and employers). There is a set of questions which are connected with a possibility of the broadest application of digital economy concerning regulation of labor and other directly related relations to enshrine these processes at the legislative level, and in local regulations. In this regard development of the harmonious, evidence-based system of legal regulation of this segment of the labor relations adequate to the level of economic development of Russia allowing to fulfill strategically important national objectives at the same time is necessary providing respect for balance of both public, and private interests.


Legal Concept ◽  
2021 ◽  
pp. 105-112
Author(s):  
Yanina Kail ◽  
◽  
Victoria Usanova ◽  

Introduction: the study of the division of jointly acquired property of spouses and inheritance of property has always been given special attention by the scientists and practitioners. Quite a lot of works are devoted to this area of legal relations. However, it is not so variable and depends on the intricacies of life that there are constantly many issues that require special research and improvement of the legal regulation. The division of jointly acquired property by the spouses at the dissolution of the marriage is regulated by the norms of family law, as well as civil law in the event of the death of one of the former spouses, who do not fully correspond to each other. In this regard, today citizens often face the problems of protecting their property rights. The purpose of the research: to reveal some aspects of the legal regulation and law enforcement practice of protecting the rights of former spouses in the division of jointly acquired property in the event of the death of one of them, and to offer suggestions to help improve the relevant rules. Methods: the methods of scientific cognition are applied together, among which the main ones are the formal-legal, system methods, analysis and synthesis. Results: it is proved that the current system of the legal regulation of division of joint property of the former spouses in the event of the death of one of them requires the improvement of the legal regulation, as laid down in the legislation, the protection of property rights is quite long and expensive, which leads to the futility of efforts. Conclusions: the law enforcement practice of protecting the property rights of former spouses in the division of jointly acquired property should be recognized as generally conforming to the established norms of law. However, the lack of the clear legal regulation of the criteria and conditions for the division of jointly acquired property in the event of opening of an inheritance after the former spouse before the expiration of the threeyear statute of limitations, leads to the situations where 2 spouses will claim the inheritance – the former and the present. This situation leads to costly conflicts that are resolved in court.


2020 ◽  
Vol 24 (4) ◽  
pp. 1039-1062
Author(s):  
Vitaly V. Kikavets

The basis of legal relations in public procurement are private and public interests. The purpose of the study is a substantive assessment of the authors hypothesis that the purpose of legal regulation and financial support of public procurement is to satisfy the public interest expressed in the form of a public need for goods, works, and services. The methodological basis of the study rests on historical and systematic approach, analysis, synthesis and comparative-legal methods. The results of the analysis of normative legal acts regulating public procurement, doctrinal literature and practice showed that public interest denounced in the form of public need is realized through public procurement. Public and private interests can be realized exclusively jointly since these needs cannot objectively be met individually. In general, ensuring public as well as private interests boils down to defining and legally securing the rights and obligations of the customer and their officials, which safeguards them in the process of meeting public needs through public procurement. The study revealed the dependence of the essence of public interest on the political regime, which determines the ratio of public and private interests. Public interest in public procurement is suggested to understand as the value-significant selective position of an official or another person authorized by the government, which is expressed in the form of the public need for the necessary benefit; gaining such benefit involves both legal regulation and financial security. The purpose of legal regulation of public procurement is to satisfy public interest. These concepts should be legally enshrined in Law No. 44-FZ.


2021 ◽  
Vol 17 (2) ◽  
pp. 33-41
Author(s):  
K. V. Karpenko

Introduction. The article deals with the phenomenon of constitutional identity, which allows strengthening the protection of constitution. The author shows, that the constitutional courts are the creators of the constitutional identity all around the world. That is why its principles may be called «praetorian law», as a reference to Roman judicial practice. The principles of constitutional identity form by themselves a core of constitutional provisions, which guarantee historical continuity and durability of any legal order. A nation can use them to preserve its existence in a legal reality. Constitutional identity creates a subordination of norms in the constitutional text. The most important of them are on the top. Such a vertical system gives to the Constitutional courts a useful criterion for balancing different interests in a society. This criterion is fair enough, because it is stipulated by the constitution itself.Materials and methods. The materials for the study include the constitutions of states, whose content is related to the problem discussed, decisions of constitutional courts and the legal positions expressed in them, as well as the conclusions of the constitutional and legal doctrine. The study uses the comparative method, which makes it possible to compare homogeneous legal phenomena, the systemic method, with the help of which constitutional identity is considered as an integral part of the mechanism of legal regulation, the dogmatic method that reveals the legal nature of the subject under study, as well as the dialectical method, which gives a holistic idea of subject of research.Results. Constitutional identity, which determines the hierarchy of constitutional norms and values, characterizes a state, emphasizing its differences from others. Constitutional identity should be unchanged over time and free from ongoing changes to the constitutional text. Then it allows identifying the permanent features of a particular legal order and the state as a whole. Consequently, the principles of constitutional identity preserve the historical heritage of the people, the patterns of its development and a certain predictability of the future. Thus, constitutional identity ensures the continuity of different historical periods.Discussion and conclusions. According to the author, the application of the principles of constitutional identity can give the current legal order an internal structure, reflected in the text of the Basic Law. At the same time, constitutional norms build a hierarchy that can reflect the hierarchy of significant values. The presence of such a hierarchy expands the possibilities of legal protection of the constitution, since the constitutional courts have a criterion for «weighing» public and private interests.


Author(s):  
O. A. Ivanova

Introduction: the article analyzes one of the aspects of Russian and international experience in immunological diagnostics and immunological prophylaxis of certain diseases, namely application of procedures that may restrict the rights of citizens while ensuring public safety. This topic is becoming more and more controversial due to collision of public and private interests, so its study appears to be highly relevant. Purpose: to evaluate the legality and validity of restricting the rights of citizens as part of application of immunodiagnostics and immunoprophylaxis procedures, to formulate proposals on improving legal regulation covering the procedures themselves and the harm compensation procedures in case of postvaccinal complications – all based on the analysis of scientific information sources, legal acts, materials of law enforcement statistics, opinion polls, foreign experience. Methods: dialectical, formal-logical, functional, sociological and other general scientific methods of research; specific legal methods: comparative-legal and formal-legal. Results: the approaches to understanding immunodiagnostics and immunoprophylaxis procedures and their significance have been analyzed, the problematic aspects of legal regulation and law enforcement in this sphere, and also violations of legislation have been identified; the experience of compensating for harm caused by vaccination has been studied. Conclusions: in order to effectively achieve the goals of public health maintenance and boosting public confidence in the procedures of immunodiagnostics and immunoprophylaxis, and to ensure the rights of citizens, a set of measures is needed as follows: constant cooperation with civil society institutions that should go in parallel to the application of medical and pharmacological advances accompanied by the improvement of legal norms; control over the safety of drugs; budget financing of alternative diagnostic methods and additional examinations aimed at reducing the risk of harm to health and at identifying all the contraindications; maximum public awareness of all procedures and medications when obtaining voluntary informed consent; imposition of restrictions on persons who refused to undergo the procedures in strict accordance with the law and in proportion to the real danger to the public interest; additional training of medical staff; improvement and simplification of procedures for compensation for harm in the event of postvaccinal complications with the priority of non-judicial procedures; increase of the compensation size.


Author(s):  
Maria Louis Cahya Lumaris ◽  

This study aimed to analyze the legal efforts of conflict resolution in the Cash on Delivery system in e-commerce transactions in Indonesia. As will be discussed in this research is the development of e-commerce in Indonesia, payment systems in e-commerce in Indonesia, and legal efforts of conflict resolution in the Cash on Delivery systems in e-commerce transactions in Indonesia. This study used normative juridical research methods and research data used were secondary legal data consisting of primary legal materials and secondary legal materials. Based on the results of the study, it is known that e-commerce in Indonesia is developed rapidly, especially during the Covid-19 pandemic. Besides the development of e-commerce followed by the development of electronic payment systems in Indonesia, one of them is the Cash on Delivery (COD) system. However, this system creates a conflict between the parties involved in the electronic transaction. Legally, there are two ways of resolving conflict can be put forward, including non-litigation, which is done to achieve peace between the parties involved in the conflict, and if peace is not reached, legal remedies can be taken in litigation by the Buyer by taking civil law action because the Seller has defaulted as regulated in Article 1243 of the Civil Code. In addition, the Buyer can also take criminal litigation efforts by arguing that the Seller has committed a criminal act of fraud as regulated in Article 378 of the Criminal Code in conjunction with Article 28 paragraph (1) of the ITE Law. However, criminal litigation is carried out as a last resort in law enforcement or as an ultimum remedium.


Author(s):  
Boris B. Bulatov ◽  
◽  
Alexander S. Dezhnev ◽  

The article examines the normative legal basis of the grounds for canceling property seizure in pre-trial criminal proceedings. The problem of the legislator’s usage of evaluative categories in removing investigator’s, interrogator’s or court’s restrictions is also analyzed. The solution of this problem is made dependent on the implementation of public or private interests. Discussing these issues, the authors come to the conclusion that this sphere is neither presented nor analyzed in academic monographic works. This circumstance indicates the novelty of the study owing to the legal positions of the Constitutional Court of the Russian Federation on the issue. The conclusion about the priority of public principles over private interests concerning matters which are not related to civil lawsuits is made on the grounds of empirical data and the analysis of legislative approaches. The contradictions of the provisions of the Criminal Procedure Code of the Russian Federation regulating the basis and procedure for canceling property seizure and the laws on bankruptcy are identified. The directions for improving the legal regulation of these issues are presented. The necessity of a multisectoral regulation of some aspects of law enforcement is inferred. The examination of private principles in canceling property seizure is connected with securing a civil lawsuit in criminal proceedings. The authors substantiate the existence of additional opportunities in making decisions in this field via the legal regime. This regime is also used in some other legal acts and may be put into practice in accordance with the Criminal Procedure Code of the Russian Federation. However, the imposed restrictions can be canceled on the basis of the decision by a person considering a criminal case. The authors note the incoherence of some provisions of Part 3 and Part 9 of Article 115 of the Criminal Procedure Code of the Russian Federation. This incoherence is connected with different approaches to the view on public and private interests in decision making. The authors substantiate the necessity of a legal linking of grounds for canceling property seizure with the decision on imposing this resriction. The conclusion about the comprehensive order of property seizure is made in the final part of the article. It is also stated that this order does not contain distinct criteria of the legality of the decision. Certain parts of the criminal procedure laws should be corrected. Some ways to improve the field of legal regulation concerning the opportunity of canceling seizure are given.


2019 ◽  
Vol 62 ◽  
pp. 10001
Author(s):  
G.E. Ageeva ◽  
P.P. Lang

The study of the development of bankruptcy institution procedural and legal regulation is very pressing in modern society, since the number of insolvent subjects is increasing every year, which inevitably increases the use of the norms of the institution being studied. However, in law enforcement practice, a number of problems arise due to the lack of a unified theoretical-based approach in constructing the legal regulation of the bankruptcy institution. The purpose of this study is to analyze the features of the procedural and legal regulation of the bankruptcy institution. The objectives of the study are to examine the system of legislation governing the bankruptcy institution, to analyze the law enforcement practice of declaring debtors insolvent, identifying problems of procedural regulation and the formulation of proposals for their elimination. In carrying out the study as the main method of knowledge, the authors relied on the materialist dialectic. In addition, other research methods were used: analysis and synthesis; induction, deduction; comparative law, etc. Abstracting from specific criteria and categorical problems, the study examined general provisions, concepts and categories of the institution of insolvency (bankruptcy), features of its procedural and legal regulation, as well as identified its problems. Due to a comprehensive and consistent analysis in accordance with the purpose and objectives of the study, which are its stages, it was possible to come to some conclusions and formulate certain recommendations. The significance of the study has both a theoretical aspect and an applied one: the formed theoretical concept of the institution of bankruptcy can enrich legal science, and proposals designed to solve existing law-enforcement problems can be used in the implementation of the norms of the institution under study.


Sign in / Sign up

Export Citation Format

Share Document