THEORY AND HISTORY OF LAW ENFORCEMENT
The subject of the article is periodization of the stages of Roman law assimilation into European jurisprudence.
The purpose of the article is to o allocate independent stages of reception of the Roman law by legal science of the European countries.
The methodological basis of research is analysis and interpretation of legal literature devoted to genesis of European jurisprudence. Taking into account that methodology as a specific branch of scientific activity appeared relatively recently, this work is mainly devoted to historical and legal issues of acceptance and subsequent reception of Roman law by European legal science, which in turn means focusing on more easily protected private law, which has a much longer history of formation and development compared to other legal systems.
Results, scope of application. The paper attempts to systematize the main stages of penetration of the foundations of Roman law in the main legal concepts of the European States, occurring from the moment of their origin at the end of the XII century up to the beginning of their unification in the national codified acts in the XVIII century. There was a predominance of teaching of Roman law and, in particular, the Code of civil law (Corpus iuris civilis), – Digests of Justinian, – which became the main text for legal research. The Roman law, however, did not have a complete monopoly, and therefore the paper examines the fundamental conceptual approaches of Canon law and moral theology. Their own systems of legal norms were also developed in Canon law on a completely different basis in compare with Roman law. Those sytems in a critical dialogue with the approaches inherent in Roman law, actually paved the way to natural law, which served as the basis for the creation of modern normative legal acts, including codified ones. The work takes into account the considerable scale of Europe, which influenced the historical development of jurisprudence in its various parts, in connection with which the European legal science existed for centuries until the emergence of national codified legal acts objectively predetermined the need to focus mainly on their own national legal systems. Special attention is paid to the period of time between the emergence of the first universities in continental Europe and the development of national codified legal acts in the XVIII century.
Conclusions. It is obvious that the glossators may have applied Roman law, although it has very little evidence in the historical material. In turn the commentators definitely used Justinian's Digests. The criticism of legal humanists and natural lawyers meant that Roman law was ultimately applied only when its reasonable content continued to be satisfactory. The transition to national codifications, accompanied by the abolition of Roman law as a source of law, actually became a real paradigm shift in European jurisprudence. However, this does not mean that the common heritage of Roman law has become forgotten.The subject. The article studies legal fictions from the point of view of their correlation with ideological sources of law.
The purpose of the article is to confirm or disprove hypothesis that legal fictions may be described as one of the ideological sources of law.
The methodological basis for the study includes analysis and synthesis, interpretation of legal literature.
Results, scope of application. Legal fictions are legal provisions enshrined in the text of regulatory legal acts in the form of separate regulatory regulations. They play an important role in lawmaking and in the mechanism of legal regulation. Fictions perform the function of protecting various interests and the function of procedural economy, contribute to the rapid and correct resolution of the case on the merits, have the necessary impact on the participants of the proceedings.
Legal fictions have their own set of features. They are characterized by a) the deliberate falsity of the assumption; b) this assumption is legally irrefutable, the possibility of proving the opposite is excluded; c) the assumption is legal. provided for in regulatory legal acts; d) assumption, which is given the importance of legal facts.
The ideological significance of legal fictions as sources of law is manifested in the fact that they are associated with legal norms, in the content of many of them; this is a special kind of legal norm, in the content of which there is a certain fiction; fictions are one of the means of formalization of normative material and simplification of the structure of actual compositions. Legal fictions are widely used in the gaps in the law, are one of the ways to effectively fill them.
Legal fictions bring clarity to the legal regulation of public relations, being a necessary part of legal regulation. Fictions participate in legal regulation in two forms (types): through theoretical and practical (normative) constructions. Theoretical fictions, being a part of the legal doctrine, act as independent regulators (for example, constructions of the legal entity, the state, etc.). Legal fictions perform certain functions. They eliminate the uncertainty in the legal regulation; they help to simplify legal relations and make legal regulation stable and stable; they help to translate everyday reality into legal reality; they help to simplify legal relations and make legal regulation stable and stable.
Conclusions. Legal fiction can be considered an ideological source of law, if we consider it as a legal fact, its variety. But this characteristic is not prevailing among other significant properties of legal fictions.
THE LAW ENFORCEMENT BY PUBLIC AUTHORITIES
The subject. The article is devoted to different methods of constitutional conflicts resolution, classification of constitutional conflicts, genesis of constitutional conflict diagnostics theory as a system of different measures for constitutional conflicts prevention.
The purpose of the article is to confirm or disprove hypothesis that methods of constitutional conflicts resolution and prevention may be classified by different bases.
The methodology of the study includes general scientific methods (analysis, synthesis, description) as well as sociological and economic approaches.
The main results and scope of their application. The author describes different groups of conflict resolution methods, it’s types and system. The optimal way to resolve the constitutional conflict is systematic application of the following principles: 1) the legality of measures; 2) priority of human and civil rights and freedoms; 3) ultimo ratio (last resort); 4) proportionality of measures; 5) the effectiveness of measures, aimed at resolving the constitutional conflict.
Conclusions. Constitutional conflicts are resolved by special legal methods. Depending on the enforceability of such methods for the conflicting parties, such methods can be classified into: - enforcement methods, that are based on the constitutional power of legal enforcement to be applied to one side of the conflict by the other party or by the actor of the constitutional-legal conflict (measures of constitutional enforcement, the mechanism of checks and balances); - cooperative methods, which are understood as mechanisms for resolving constitutional conflicts, enshrined in the norms of constitutional law and based on cooperation, mutual assistance of the parties to the conflict on a parity basis (various forms of coordination, such as negotiations, mediation, conciliation). Methods and mechanisms of conflicts prevention are not the part of methods of resolving constitutional conflicts, since the first methods are applied before the appearance of constitutional and legal conflicts. A constitutional conflict diagnostics as a method of constitutional conflict prevention is based on risk management system and represents a system of legal and organizational measures, aimed at identifying risks of constitutional conflicts and legal monitoring.
The subject. The article is devoted to the study of the polluter pays principle from the point of view of the mechanism for its implementation to ensure the right to a favorable environment.
The purpose of the article is to identify the degree of implementation of polluter pays principle in Russian legislation in comparison with the OECD countries.
The methodology. The study is based on the comparative legal method, which allows us to analyze the strengths and weaknesses of the models of legal regulation of relations in the field of environmental protection chosen by different countries and international organizations. The study also relies on general scientific and private scientific methods, including formally legal method, interpretation of legal acts.
The main results and scope of their application. The content of the polluter pays principle is determined, as well as the goal of its establishment and the methods used by legislator to achieve this goal. The effectiveness of the polluter pays principle is determined by an integrated regulatory approach. It includes several elements: not only the obligation to compensate for the harm caused in full, but also to take all necessary measures to prevent the possibility of harm at all stages of the activity, including design, construction, etc. The analysis of international legal regulation, as well as the regulatory legal acts of different countries shows that this principle is implemented in the legislation of many countries and an effective mechanism for its application is created in developed countries. Genuine implementation of this principle lets create balance between economic and environmental relations and protect the vital interests of human and society.
Conclusions. A comparative analysis of the legal regulation of relations on environmental protection in terms of applying the polluter pays principle allows us to conclude that there is a rather formal approach to its implementation into Russian legislation. There is no comprehensive approach to the regulation of economic activity at all stages of its implementation, from planning and design to decommissioning and waste management. This, in turn, does not allow creating a balanced management mechanism of environmental protection in Russia. In this connection, a list of priority measures to create an effective legal regulation mechanism is proposed.The subject. The analysis of the establishment of land tax benefits for residents of the Free Port of Vladivostok by municipalities is carried out.
The purpose of the article is to determine the feasibility of establishing land tax benefits for residents of the Free Port of Vladivostok (FPV) by the municipalities themselves or to confirm the need for federal regulation of the establishment of such benefits by the Tax Code of the Russian Federation.
The methodology of the study includes the analysis of municipal legal acts on the establishment of land taxes in municipalities that are parts of the FPV.
The main results and scope of their application. Due to the limitation of powers of municipalities located in territories with special legal status, one of the powers that such municipalities exercise is the establishment of local taxes and fees, as well as local tax benefits for residents of such territories. In most cases, such benefits provided at the federal level, so municipalities only “exercise the will” of the federal legislator by imposing a local tax on their territory. Due to the absence of federal regulation, tax benefits on local taxes will be established at the discretion of local authorities, which may lead to competition and unequal economic conditions for residents. So, for residents of the Free Port of Vladivostok (which includes 22 municipalities located in five constituent entities of the Russian Federation) in the absence of federal regulation, the municipal entities themselves will establish land tax benefits, which in practice leads to differentiation in the payment of land tax in the territory of the Free Port of Vladivostok. All municipalities that are parts of the FPV are divided into three groups: 1) a land tax exemption has been established in the municipalities of the first group; 2) the municipalities of the second group has not established a land tax benefit; 3) the municipalities of the third group have a zero land tax rate. It is necessary to establish a common list of benefits on the territory of the FPV by the Tax Code of the Russian Federation with the possibility of expanding such benefits at the regional and municipal levels, taking into account local characteristics.
Conclusions. Municipalities establish the land tax benefits in different ways, and such situation leads to an unequal economic situation for residents of FPV. In order to remove competition between municipalities and due to the significance of the goals that the state sets for itself, creating territories with special economic status, it seems necessary to establish a typical list of benefits on such territories at the federal level by the Tax Code of the Russian Federation with the possibility of expanding such benefits at regional and municipal level according to local circumstances.
The subject of the article is peculiarities of evidence in the tax process.
The main purpose of the article is to identify the existence or absence of specifics of evidence in the tax process.
The description of the problem field. Each stage of the tax process is accompanied by tax authorities issuing tax legal acts; it requires them to obtain the necessary evidence. At the same time, theorists of tax procedural relations seek to circumvent the issue of the nature of tax procedural evidence. Some researchers believe that the theory of evidence, which formed the interdisciplinary institute of evidence, can eliminate the need for a theoretical definition of the tax evidence, but this is difficult to agree with, since tax evidence has specific features that determines the need of its independent research.
The description of methodology. The author uses analysis, synthesis, comparison, interpretation of legal acts, economic approach as well as the dialectic and formal-legal methods.
The main results and scope of their application. Evidence in the tax process is information about facts that are relevant to the adoption of a certain decision by the authorized subject of the tax process. Evidence must be obtained from acceptable and reliable sources and investigated in compliance with the procedure established by law. It seems possible to set the list of evidence in the tax process legislation as follows: an oral explanation of the subject of the tax process or his representative; witness testimony; conclusion and testimony of an expert or specialist; written evidence, a protocol of a procedural action; material evidence; photo, video or audio materials. The evaluation of evidence by an authorized entity includes its consideration for relevance, admissibility, sufficiency and reliability. Only if the evidence meets the above criteria it will have probative value in a specific procedural situation.
Conclusions. The purpose of the proof sets the maximum importance and its systemic significance for the entire tax process, since evidence-based knowledge traditionally appears to be the main supporting structure of the law enforcement process, in particular, evidence create the basis for its motives and conclusions. Accurate and objective establishment of factual circumstances of tax case is impossible without proper evidence. The main properties of evidence are relevance, admissibility, sufficiency and reliability.
Keywords: evidence, tax process, tax procedural proof, tax authorities, means of proof, properties of evidence, individual tax legal acts, evidentiary information.
The subject. The legal status of self-regulatory organizations based on the principle of mandatory membership was chosen as the subject of the research.
The purpose of the article is to study the features of subjects of administrative law, vested with public powers, and substantiate the possibility of attribution of self-regulatory organizations with mandatory membership to legal entities of public law.
The methodological basis for the study: general scientific methods (analysis, synthesis, comparison, description) as well as formal-legal interpretation of legislation and judicial acts.
Results, scope of application. Two types of subjects can take part in administrative relations, as a rule: subjects performing public functions and endowed with authority for their implementation, and subjects not endowed with appropriate powers and representing an exclusively private interest. At the same time, the first group of subjects includes not only public-territorial entities, state authorities, but also organizations performing publicly significant functions.
The legal definition of a legal entity does not reflect all the features of the legal status of these subjects, that is why the author refers to the concept of a legal entity of public law. Legal entities of public law have a special nature, different from legal entities of private law, since they have the right to make decisions affecting an indefinite range of persons.
Conclusions. The analysis of the features of the legal entity of public law allocated in the literature (special legal nature; special social quality; special interests and will; connection with the public power; special way of creation; public-legal character of responsibility) allowed to justify that self-regulatory organizations are the kind of legal entities of public law - organizations performing publicly significant functions.
The subject of the study of this article is the foreign experience of legal regulation in the provision of public services to applicants, especially the organization of government activities in terms of the quality of public services in foreign countries; laws and other legal acts, as well as the practice of their application; scientific papers on this issue.
The purpose of the article is to identify the main approaches to the development of public services in foreign countries with a view to further analyzing the prospects for their use in the Russian Federation and identifying areas of public service reform that are relevant for the Russian Federation.
The theoretical basis of this article was the scientific theories of the theory of state and law, constitutional and municipal law, as well as administrative law. The methodological basis of the study consists of general scientific methods and techniques: analysis and synthesis, comparison and forecasting, classification.
The main scientific results of the research. Russian legislation has borrowed a number of institutions from European practice. For example, multifunctional centers for the provision of state and municipal services have been established; the activities of the e-Government were realized in Russia. Much attention is being paid to this sphere in Russia, information technology tools are being developed in order to increase the availability of public services.
Conclusions. We identified and formulated the relevant for modern Russia directions of reforming the public services system on the bsais of foreign experience in legal regulation in the provision of public services, including:
- improvement of the regulatory and legal framework for the provision of public services, which should consist in focusing the standards of service provision primarily on the interests of the applicant;
- development of public-private partnership in the provision of public services while maintaining the controlling role of the state;
- decentralization of the provision of the main part of public services;
- development of an e-government system in order to ensure the provision of high-quality public services to all categories of applicants;
- legal regulation of public control in the provision of public services;
- translation of public services into all languages of peoples inhabiting the territory of the Russian Federation.THE LAW ENFORCEMENT BY THE JUDGES
The subject. The article is devoted to problems of institute of legal aid in German civil procedure law.
The purpose of the article is to confirm or disprove hypothesis that financial support is the main but not exclusive form of legal aid in Germany.
The methodology of the study includes analysis and synthesis of German civil procedure legislation, description of decisions of German Federal Court of Justice and interpretation of legal studies concerning legal aid issues.
The main results and scope of their application. The right to state support for equal access to judicial protection, regardless of property status, has constitutional grounds. The fundamental aspect of the principle of the rule of law is the prohibition of unauthorized enforcement of legal claims, and, therefore, the need to go to the court. Thus, ensuring equal access to judicial protection for all, including the needy persons, is a duty of a state governed by the rule of law. An important guarantee in this case is legal aid. In Germany, this aid, enshrined in civil procedure law, is a special reflection of the General social and legal institution of social assistance.
The author reveals the structure of the main costs associated with the conduct of the process and covered by the legal aid, as well as conditions for the provision of such assistance in Germany – personal preconditions and prerequisites regarding the prospects for the conduct of the process. The provision of legal aid does not exclude the risk of a poor party that arise in connection with the loss process and the reimbursement court costs to the prevailing party. In addition, the provision of legal aid does not exempt from the obligation of its subsequent reimbursement to the Federal land budget from free revenues.
The compilation and maintenance of statistics on the cost of certain types of proceedings by the Federal States of Germany, which account for the lion's share of the costs of maintaining the judicial system, seems justified from a fiscal point of view. However, it does not mean that the judicial system as a whole should be subordinated to the logic of economic profitability of "services" for dispute resolution.
Conclusions. The provision of legal aid in Germany requires the identification of a set of conditions-relating to both the person and the prospects of the case. However, financial assistance in the conduct of proceedings is not the only way to ensure legal aid, another is, for example, the simplification of judicial procedure. It is at the discretion of the state to choose the means of legal aid to ensure effective protection of rights, however it may not be possible without qualified legal assistance.THE LAW ENFORCEMENT IN PRIVATE LAW
SCIENTIFIC LIFE
ISSN 2658-4050 (Online)