scholarly journals Gribas izteikums kā tiesiska darījuma svarīgākais elements

2021 ◽  
Author(s):  
Laura Kadile ◽  
Keyword(s):  
Subjective Assessment ◽  
Case Law ◽  
Civil Procedure ◽  
Legal Norm ◽  
Legal Doctrine ◽  
Legal Norms ◽  
Legal Consequences

To any uninvolved reader, word combinations like “understand the meaning of one’s action” and “ability to control one’s action” can be confusing. Would the legislator have deliberately created such a broad-ranging combination of philosophical concepts in the text of a legal norm that each factual circumstance could be covered under these concepts and render applicable the legal consequences specified in the legal norm, or, after all, does the legal doctrine and case law already envisage a clear model, according to which the respective legal norm is applied? In the absence of a uniform filling of a legal norm with substance, might such an interpretation permit a purely subjective assessment? For a uniform interpretation and application of legal norms to exist in practice, the interpretation must be based on new fundamental principles and a common legal doctrine, abstaining from the case law and understanding of legal norms that existed before the reform of civil procedure capacity.

scholarly journals MEDICAL AND PROCEDURAL-LEGAL ASPECTS OF INPATIENT AND OUTPATIENT FORENSIC PSYCHIATRIC EXAMINATION

2020 ◽  
Vol 73 (7) ◽  
pp. 1533-1538
Author(s):  
Sandra Kaija ◽  
Inga Kudeikina ◽  
Nataliya Gutorova
Keyword(s):  
Medical Practitioner ◽  
Legal Framework ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Civil Procedure ◽  
Legal Doctrine ◽  
Psychiatric Examination ◽  
Legal Norms ◽  
The Subject ◽  
Forensic Psychiatric

The aim: The aim of the study is to define the legal framework of forensic psychiatric examination commissioned by the court in relation to the competence of medical practitioners and the position of the subject as a patient in the process of forensic psychiatric examination in order to determine the correlation of special legal regulation with criminal and civil procedure regulation and to make proposals for the enhancement of the legal regulation. Materials and methods: This study is based on the analysis of international law, medical civil procedure and criminal procedure legislation, juridical practice, medical law legal doctrine. The following methods were used in this research: the method of interpretation of legal norms, analysis of legal acts, and the induction-deduction method, upon which the conclusions were drawn and recommendations were provided. Conclusion: The current regulatory framework does not provide for the procedure by which the subject’s medical treatment is conducted during forensic psychiatric examination, nor does it determine the criteria for the admissibility of treatment of the persons concerned and the extent of treatment. During the examination, the medical practitioner who is in the expert’s procedural position in relation to the subject under examination in the particular examination should not carry out the treatment of the subject.

scholarly journals ARMED CONFLICT IN THE SOUTH-EAST OF UKRAINE: LEGAL QUALIFI-CATIONS AND CONSEQUENCES

2019 ◽  
Vol 23 (3) ◽  
pp. 394-412
Author(s):  
Petr P. Kremnev
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Forces ◽  
Armed Conflicts ◽  
Humanitarian Law ◽  
Legal Analysis ◽  
The South ◽  
Legal Doctrine ◽  
Legal Norms ◽  
Legal Consequences

Unconstitutional change of power in Ukraine as a result of the "Maidan revolution" in February 2014, with the subsequent power grab by Ukrainian radicals of local authorities under nationalist slogans, led to the establishment of control over parts of the territory of Donetsk and Lugansk regions by Donbass militias, and then to the ongoing fighting between the armed formations of the latter with units of the regular armed forces of Ukraine. The purpose of this publication is to establish the form of the armed conflict and its legal consequences from the standpoint of current international law, which has not yet found proper legal analysis and coverage in either domestic or foreign (including Ukrainian) legal doctrinе. In official statements and legislative acts of Ukraine, this conflict is declared as a "state of war with Russia", "aggression of Russia", and the Ukrainian doctrine of international law almost unanimously declares the need to apply to the conflict the norms of international humanitarian law and qualifies it as an international armed conflict. In this publication, on the basis of the analysis of existing international legal norms and legal doctrine, the qualification of existing forms of armed conflicts is carried out: war, international armed conflict, non-international armed conflict, internationalized armed conflict. This examines the legal consequences (or otherwise the obligations of the parties to the conflict) that are caused by each form of such armed conflict, that is concealed and ignored by the Ukrainian side. On the basis of the theoretical and legal analysis of the UN Charter, the relevant provisions of the Geneva conventions on the protection of victims of war of 1949 and Additional protocols I and II of 1977, the author qualifies the situation in the South-East of Ukraine as a non-international armed conflict and the obligation to comply with applicable legal norms by all parties to the conflict. At the same time, the author comes to the conclusion about the insolvency of the claims about the applicability of the rules governing other mentioned forms of armed conflicts.

The expression of legal argumentation: Towards a methodology for narrative studies of ‘discourses of subsumption’

2016 ◽  
Vol 1 (1) ◽  
Author(s):  
Erik Björling
Keyword(s):  
Continuous Process ◽  
Civil Law ◽  
Case Law ◽  
Theoretical Framework ◽  
Civil Procedure ◽  
Legal Argumentation ◽  
Legal Norms ◽  
Narrative Studies

AbstractThis article focuses on methods for studying legal argumentation in civil law case law material, more specifically argumentation as part of a discourse of subsumption as it is performed in civil procedure case law. The discourse of subsumption is described as revolving around a logic where legal norms are separated from non-legal norms and then matched with facts that are separated from non-(relevant)facts. The article describes theoretical and methodological possibilities of rewriting the discourse of subsumption into a discourse that approaches law as a normative and continuous process of ‘becoming’ rather than a discourse that revolves around the ‘existence’ of law. The advantage of such a reconstruction is that the focus on the process of ‘becoming’ provides answers to ‘how-questions’ rather than ‘what-questions’. By studying case law material, not as an argumentation based on the representation of law but as an expression of legal argumentation, it is possible to gain a deeper understanding on how subsumption is performed and what kind of normative transformation it entails. The theoretical framework of the paper builds upon the notion of a flat ontology and discourse- and narratology-terminology. Methodological concepts such as

THE STANDARD OF PROOF UNDER LITHUANIAN AND RUSSIAN CIVIL PROCEDURE LAW: A COMPARATIVE ANALYSIS

2021 ◽  
Vol 11 (5) ◽  
pp. 242-259
Author(s):  
V. MIKELENAS
Keyword(s):  
Main Part ◽  
Comparative Method ◽  
Case Law ◽  
Civil Procedure ◽  
Main Field ◽  
Legal Doctrine ◽  
Standard Of Proof ◽  
Civil Proceedings ◽  
Evidence And Proof ◽  
System Operating

The article is dedicated to the memory of Professor M.K. Treushnikov. The professor was the head of the candidate of law thesis of the author of the article, therefore, the beginning of the article is devoted to the author’s memories of M.K. Treushnikov. Since the main field of scientific research of M.K. Treushnikov is related to evidence and proof in civil proceedings, the main part of the article is devoted to the issues of the standard of proof. On the basis of the comparative method the author analyses how the approach to the standard of proof in Lithuania and Russia changed after 1990, both in legal doctrine and case law. It is concluded that there are many similarities in the standard of proof between Lithuanian and Russian civil procedure law, but there are also differences, which are due both to different legal doctrine approaches to this issue and to different case law. In particular, the author points out that there must be common standards for such cognitive, logical activity, which exist regardless of the legal system operating in one state or another, for there is only one logic.

scholarly journals THE VIEW TO COLLISION OF NORMS OF THE CRIMINAL LAW

2017 ◽  
Vol 4 (81) ◽  
pp. 11
Author(s):  
Tatjana Jurkeviča ◽  
Kaspars Šmits
Keyword(s):  
Criminal Law ◽  
Subject Matter ◽  
Case Law ◽  
Legal Norm ◽  
Collision Resolution ◽  
Legal Doctrine ◽  
Legal Provisions ◽  
Special Part ◽  
Severe Punishment

Topicality and issue of a subject-matter Collision of norms in criminal law is incompleteness of legal provisions concerning collision of norms in Criminal law, despite the fact that such legal provisions have been developed in legal doctrine and recognized in case law. Goal of an article is to summarize and show these legal provisions in order to help readers and law enforcers to discern between multiplicity and aggregation of criminal offences, and collision of norms of the Criminal law.In essence – collision of norms of Special part of Criminal law differs from multiplicity (especially a conceptual aggregation) of criminal offences with a count of criminal offences and bodies of the crime (corpus delicti) corresponding to such offences. In a case of multiplicity two or more separate (unitary) criminal offences correspond to two or more bodies of the crime (corpus delicti) which are set out in Criminal law. Collision of norms of Special part of Criminal law occurs where two or more bodies of the crime (corpus delicti) corresponds to one, separate (unitary) criminal offence.In collision between general and special norm of a Special part of Criminal law, special norm (provision) must be applied.In collision between partial (narrower) and complete (broader) norm of Special part of Criminal law, broader norm (provision) must be applied. If such partial (narrower) norm sets out more severe punishment than a complete (broader) norm, both norms must be applied in accordance with rules of conceptual aggregation.In collision between aggravating and mitigating norms (provisions) mitigating norm must be applied, that is – a norm with a lesser punishment.In collision between mitigating norms (provisions), more mitigating norm must be applied.In collision between aggravating norms, more aggravating norm must be applied, that is – a norm wish sets out more severe punishment.Collision of norms (provisions) in administrative violations law is also decided in accordance the same rules of legal norm collision resolution, despite the fact that Latvian Administrative violations code does not contain relevant legal provisions.

scholarly journals Qualified Legislator’s Silence: Problem of Recognition

2019 ◽  
Vol 86 (3) ◽  
pp. 22-31
Author(s):  
Ю. І. Чалий
Keyword(s):  
Case Law ◽  
Point Of View ◽  
Legal Doctrine ◽  
Suggested Approach ◽  
Legal Policy ◽  
Legal Norms ◽  
Major Shortcoming ◽  
Legal Position ◽  
The Law ◽  
Further Development

The problem of developing the ways of recognition of the qualified silence of the legislator has been studied. It has been stated that the “qualified silence of the legislator” is underdeveloped category of law, especially regarding the ways of recognizing such specific legislative silence within the norms of law. This problem has become more urgent due to the revival of case law in Ukraine on the application of the analogy of law and the analogy of legislation. While applying these techniques, overcoming the gaps of civil law, the courts often identify the relevant gaps of the legislation with the qualified silence of the legislator, which is a major shortcoming. Solution of this problem will allow the courts to better identify the qualified silence of the legislator in the law norms. One of the methodological approaches in solving the problem of recognition of the legislator’s qualified silence and the gaps of the legislation is the extension of the relevant research tools. In contrast to the legal position existing in the legal doctrine, the author of the article has critically assessed the ability of systematic interpretation of the law norms to be a self-sufficient method of revealing the legislator’s qualified silence. In order to recognize the true qualified silence of the legislator, the author has offered to concentrate on explaining the legal policy that may be manifested in one or other cases of the legislator’s silent expression of will. At the same time, systematic, historical or doctrinal interpretation of legislation is of relative importance to the need for clarifying legal policy. From the point of view of determining the degree of scientific novelty, the suggested approach has the nature of further development of doctrinal provisions. The author has noted on the necessity of further elaboration of the studied problems, in particular, in determining the location of each of the ways of recognizing the qualified silence of the legislator within the system of methods of interpretation of legal norms.

scholarly journals Na marginesie koncepcji języka norm prawnych

2020 ◽  
pp. 54-64
Author(s):  
Andrzej Malinowski
Keyword(s):  
Legal System ◽  
Case Law ◽  
Legal Norm ◽  
Legal Text ◽  
Legal Norms ◽  
Cognitive Value ◽  
Alternative Approach ◽  
Complete Set ◽  
The Moment ◽  
Interpretation Model

The article presents an attempt at an alternative approach to the scholarly interpretation model, in which statements expressed in the language of norms have been replaced by statements in the language of lawyers. In the proposed approach, the result of the interpretation of a legal text is a set of sentences of the lawyers’ language stating that a specific general legal norm applies at the moment of interpretation due to the validity of the relevant fragment of the legal text. The whole (complete) set of statements in the lawyers’ language whereby legal norms are held to be valid is treated by lawyers as a description of the legal system. It is stated that, considering the law as a system, neither case law nor scholarship in practice refers to the language of norms, but to the results of interpretations described in the lawyers’ language. However, the paradigm of scholarly interpretation using the concept of the language of norms has its undoubted cognitive value and is useful for didactic purposes.

Reasons for the Emergence, Change and Termination of Corporate Legal Relations

2020 ◽  
Vol 27 (1) ◽  
pp. 39-57
Author(s):  
Yurii Zhornokui ◽  
Sviatoslav Slipchenko
Keyword(s):  
Civil Law ◽  
Case Law ◽  
Legal Regulation ◽  
Legal Doctrine ◽  
Main Method ◽  
Applicable Law ◽  
Legal Structure ◽  
Deductive Method ◽  
Legal Fact ◽  
Legal Consequences

Corporate relations are developing quite quickly, thus becoming more complicated and, accordingly, in need of proper settlement. Therefore, the main purpose of the work is to determine the range of grounds for the emergence, change and termination of corporate relations. Methodologically, the study of legal facts in the mechanism of legal regulation of corporate relations is conditionally divided into three parts: law-generating, enforcing and terminating grounds. The legal structure is singled out. The deduction method was chosen as the main method. The paper draws attention to the fact that recent changes in law and jurisprudence, as well as the doctrines of law, leave unanswered a number of questions, one of which is to define the circle of grounds for the emergence, change and termination of corporate legal relations. It is proved that such bases in the activities of corporations in their composition and quality can be simple and complex. The first are the grounds giving rise to legal consequences only in the presence of one legal fact, while the second is the basis on which there are several interrelated legal facts, and, accordingly, legal facts having multiple legal directions. Legal facts in the mechanism of legal regulation of corporate legal relations have all the signs of the traditional specific differentiation of legal facts that exist in the current legal doctrine and applicable law of civil law. At the same time, they have their own peculiarities, which are characteristic only of corporate legal relations. The conducted analysis is of theoretical importance for further research of the mechanism of legal regulation of corporate relations, as it allows to expand with the help of deductive method the idea of the grounds for the emergence, change and termination of corporate legal relations. This, in turn, will facilitate the formation of clear and consistent case law.

scholarly journals Application of the principle of proportionality in judicial practice

2021 ◽  
pp. 302-306
Author(s):  
S.E. Fedik
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Civil Procedure ◽  
Court Decision ◽  
Legal Norm ◽  
Legal Norms ◽  
Procedure Code ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights

The modern concept of reforming procedural legislation in Ukraine has set before law enforcement and law enforcement agencies a number of tasks for a smooth transition from the normative-act to the precedent method of law enforcement. Moreover, such a position is directly enshrined in the procedural legislation of Ukraine, in particular in Part 4 of Art. 10 of the Civil Procedure Code of Ukraine, which states: - "The Court applies in cases the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its protocols, approved by the Verkhovna Rada of Ukraine, and the case law of the European Court of Human Rights as a source of law." [1]. It is this article of the Civil Procedure Code of Ukraine that the legislator indirectly obliges the judicial authorities of Ukraine to use both norms of international law (represented by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and its protocols) and court decisions of the European Court. on human rights, which are expressed in the practice of this court in the consideration of cases by this international judicial institution. The very provision of the above-mentioned article of the Civil Procedure Code of Ukraine declares the actual transition from the rules of normative-legal procedure of law application to the principles of precedent legal system, where the source of law is not only normative-legal act but also court decision. An important condition for the correct application of a rule of law or a court decision is the correct interpretation of a legal norm, or a whole normative legal act, as well as judicial precedent. Interpretation of legal norms involves a combination of objective and subjective, and depending on the purposes of interpretation in this process, respectively, its two stages are correlated - clarification and explanation. And if the process of interpretation is aimed only at the interpreter's understanding of the content of the legal norm, then clarification is an independent process of cognition. When the goal is to bring the content of the legal norm to third parties, the clarification and explanation are stages (stages) of a single, inseparable process. This process is inherent in all types of legal activity - lawmaking, law enforcement, law enforcement, systematization and legal education, and in a legal society the interpretation of legal norms is a stabilizing factor in the process of regulating social relations, enhances legal norms, strengthens legality, protects human and civil rights [2, P. 5-6].

scholarly journals Unification of the Case-law within the Civil Procedure System of Romania

2021 ◽  
Vol 5 (2) ◽  
pp. 87-100
Author(s):  
Laura Cristina Carcia
Keyword(s):  
Supreme Court ◽  
National Level ◽  
Case Law ◽  
Civil Procedure ◽  
Legal Practice ◽  
Legal Norms ◽  
Procedure Code ◽  
The Supreme Court ◽  
Lower Courts ◽  
Extraordinary Means

The present article contains the main legal practice unification mechanisms, as regulated by the Romanian legislator in accordance with the current Civil Procedure Code, as well as those partaking to the Supreme Court jurisprudence in conjuncture with the lower courts by granting a uniform settlement on the legal issues comprised by the litigations referred to. The presentation starts off with the referral in the interest of the law, a traditional instrument within the national civil procedure legal sphere of activity, it continues with the notification of the Supreme Court for settling certain legal matters, a novelty at national level and of whose practical utility has already been recognised, and it ends by making reference to the second appeal, as an extraordinary means of challenge, with a relatively reduced efficiency, at present, in settling the different interpretations of the legal norms.

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