Petut'yun ev iravunk'
P-ISSN: 1829-023X
E-ISSN: 2738-2508
Vol. 94 No. 3 (2022): State and Law
Articles
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Articles
CORRELATION OF POSSIBILITY AS A THEORETICAL AND REALITY AS A PRACTICAL IN LAW
AbstractAnalysis of the correlation between the categories "possibility" and "reality" makes it possible to penetrate into the essence of law, observe law in motion, identify patterns in the development of legal phenomena and realities, thus, foresee ways to introduce relevant legal regulatory mechanisms and improve the effectiveness of the implementation of law. In the article the author finds that the essence of the content of reality and possibility can be deeply disclosed, only in their relationship, where reality appears as a form or theoretical level, and possibility, as a material or practical level. The correlation between legal possibility and legal reality, the author is considered in various aspects of law, and gives special importance to the problem of differentiation between the concept of "legal reality" and "the real life in law".
According to the conclusion presented in the article, legal reality is a materialized part of the legal system, but not all legal phenomena existing in the real life in law can be realized in legal reality and, so theoretical understanding of the problem of the correlation between reality and possibility in law, undoubtedly, has practical significance for increasing efficiency implementation of law in society.
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Articles
THE SUPERIOR MANAGEMENT SYSTEM OF THE ARMED FORCES AND THE INSTITUTION OF COMMANDER-IN-CHIEF OF THE ARMED FORCES IN THE FIRST REPUBLIC OF ARMENIA
AbstractIn the article, the author raises the issues of military-strategic management in the parliamentary system of the First Republic of Armenia comparing them with the
regulation of such relations in other forms of government (presidential, semi-presidential, parliamentary and monarchic). The author concludes that in the modern
Republic of Armenia, the military-strategic management system of the defense sector, which has a strict Govetnment and Prime Minister-centered feature which a vision of unusual regulation and threatens the defense interests of the country.References -
Articles
HEALTH LAW AS A BRANCH OF LAW
AbstractMedical law is an area of legislation that includes legal acts that regulate the rights and obligations of healthcare providers, healthcare professionals, patients, both in obtaining/ providing medical care and in exercising their labor rights and obligations. In addition to the fact that the law on health can be considered as a set of legal acts, but also as a separate branch of law with theoretical literature, which is also considered interdisciplinary law. Within the framework of this scientific article, medical law will be discussed as a branch of law.
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Articles
SUBJECTS OF CHALLENGING THE ADMINISTRATION
AbstractThe determination of the scope of subjects having a right to challenge the administration is strictly connected to the realization of the principles of the generality of law and equality before the law, as well as to the constitutional right of proper administration and the integral part of it – the right to challenge the administration. The criteria needed to determine the scope of subjects entitled to challenge the administration are discussed in this scientific article - in the result of an analysis of domestic and foreign theoretical sources, legislation of the Republic of Armenia, legal positions of the ECHR, the Constitutional court, the Cassation Court and the practice of courts of other states. In the result, the author concludes that the main criteria for determining the locus standi in challenging the administration shall be the “real interest” argument.
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Articles
LEGISLATIVE ISSUES OF INVOLVING MILITARY EMPLOYEES IN THE MOBILIZATION MILITARY SERVICE
AbstractThe article discusses the question of the scope of RA citizens who bear the legal obligation to be called up for mobilization military service in the context of the current
legislative provisions, whether such an obligation is imposed on employees of various military agencies, including the police, the national security service, the penitentiary and rescue services. The relevance of this analysis is especially highlighted due to the fact that in September-November 2020, representatives of the above agencies took part in hostilities to repel the aggressive attacks committed by Azerbaijan against Artsakh and Armenia, to fulfill the duty of defending the motherland (in this case, of course, speech not about representatives of the police or border troops: the legal norms on the possibility of their participation in hostilities are specifically provided for and will also be presented in the article).References -
Articles
CONCEPT AND ELEMENTS OF THE PRINCIPLE OF ACCESS TO JUSTICE
AbstractIn the article, the author revealed the essence of the principle of access to justice, substantiated that it is not a component of the right to a fair trial, but the right to access to court. Considering the narrow and broad interpretation of the principle of access to justice, the author noted that only in the case of a narrow interpretation of this principle, it cannot be equated with the right of access to justice (the right of the court). In the article, the author presented the elements of the principle of access to justice, its various classifications in scientific research works. Summarizing the scientific and practical approaches to the principle of access to justice the author presented the concept of the principle of access to justice, separating from its elements legal, judicial, procedural, economic, organizational elements.
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UNDERSTANDING AND CLASSIFICATION OF SELF-DEFENSE CONDITIONS FOR THE FULFILLMENT OF CONTRACTUAL OBLIGATIONS
AbstractThe revelation of the interconnectedness, similarities between self-defenseand contract obligations institutes aimed to develop the practical application of these institutions in private law. The article reflects the de facto actions taken during the right of self-defense and the legal aspect of unilateral refusal of contractual arrangements. Non-jurisdiction methods of protection of rights as well as protection of contractual legal relationship have been discussed.
We propose to enshrine the definition of the right to self-defense in the provisions of the general part of the civil legislation. In all other cases, to define applicable methods for each institution of private law.
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Articles
THE CONCEPT AND NOTION OF PROFESSIONAL LIABILITY INSURANCE
AbstractThe article attempts to identify the most significant problems of professional liability insurance at the present time and ways to overcome them in order to form an independent type of liability insurance. The need to introduce general norms of professional liability insurance is justified by the differences of such a contract with insurance contracts of contractual and tort liability, as a complex, having features in the subject composition, insurable interest, insurance risk of the contract.
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Articles
SOME ISSUSES OF CORRELATION OF TOURISM PRODUCT AND THE PACKAGE TOUR
AbstractThe article discusses some issues of the essence and correlation of tourism product and the package tour. The author indicates collisions between provisions of the Law of RA on ''Tourism and tourism activities” concerning an object of contractual relationship between tour operator/agent and consumer. In order to ensure also the legal regulation of packages, formed in accordance with the order of the consumer and the aim of trip, the author suggests not to limit the consistency of packages and the minimal duration of tourist services.
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THE CONCEPT OF CIVIL LIABILITY
AbstractThe notion of civil liability is a crucial one in civil law. A correct explanation of this idea is immensely practical in addition to its theoretical significance, as it allows for the accurate outline of both legal draft and law enforcement actions, as well as the execution and maintenance of the subjective rights of participants in civil turnover.
This article discusses the concept of civil liability, as well as its signs and manifestations. Based on the distinguishing characteristics and symptoms of civil liability, the role of civil liability in the system of legal liability is defined, and the concept of civil liability is formulated.
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THE CONCEPT, CHARACTERISTICS OF CORPORATE-TYPE LEGAL ENTITIES (CORPORATIONS) AND DESCRIPTION OF GOVERNING BODIES
AbstractThis scientific work is devoted to the study of the essence and features of corporate-type legal entities (corporations), identifying the distinctive features of corporate-type and non-corporate legal entities, identifying the characteristics and content of corporate governance bodies. The paper studied the legislative regulations of a number of domestic and foreign countries concerning corporations and their features, practice, as well as the works of theoretical scientists.
As a result of the above, the concept of corporations and the features of the latter were formulated. In the work, the system of corporate governance bodies and its individual components with their inherent features and classifications were identified and analyzed.
In the study of foreign and, first of all, American legislation regarding venture funds (including angel investors) and venture capital, it was proposed, by analogy with the C Corp corporations operating in the United States, to introduce the concept of venture joint stock companies as a special kind of joint stock companies, taking into account a number of characteristics․
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LEGAL STATUS OF BUILDINGS AND STRUCTURES BUILT ON THE RIGHT OF CONSTRUCTION
AbstractThe article covers some issues related to the legal status of buildings and structures built on the right of construction. In particular, the author of the article touched upon the problems associated with legal norms regulating the rights of the developer and the landowner to buildings and structures built on the basis of the right of construction. As a result, the author presented relevant proposals, taking into account the experience of foreign countries to improve these legal norms.
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PROBLEMS OF OBJECTIVE PREREQUISITES IN CASES OF CHALLENGING THE LEGALITY OF NORMATIVE LEGAL ACTS IN ADMINISTRATIVE PROCEDURE
AbstractThis article is dedicated to the object of proceedings on challenging the legality of normative legal acts. Considering that the proceedings on challenging the legality of normative legal acts are of high public importance, this study reveales the features that characterize the object of the proceedings on disputing the legality of normative legal acts and the limits of object. In addition, this paper discusses a number of issues related to the object of disputes over the validity of normative legal acts, such as determining the nature of the challenged act.
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COMPARATIVE ANALYSIS OF THE PRINCIPLES OF CROSS-BORDER INSOLVENCY
AbstractThe article is devoted to the principles and methods of cross-border insolvency. The article reveals the peculiarities, as well as the advantages and disadvantages of the two main methods of cross-border insolvency (territoriality and universalism). Moreover, the article presents the main provisions of legal documents adopted by famous international organizations about territoriality and universalism, and respective conclusions are made.
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IN REM LAWSUIT IN THE LEGAL SYSTEM OF RA
AbstractThe confiscation of property of illicit origin recently implemented in the domestic legal system is a special form of in rem action. Applied with respect for fundamental rights and legal guarantees it could become an irreplaceable tool for confiscating assets acquired as a result of criminal activity. Combining domestic regulations with the study of models used in the international practice of Non-Conviction Based Asset Forfeiture, several issues have been raised. The article discusses the peculiarities of in rem action and its difference from the classic in rem action. It is proposed to regulate the confiscation of property of illicit origin as a differentiated form of civil litigation, taking into account the specifics of the procedural form of the proceedings, which will contribute to the establishment of this institution and the formation of the unified practice of law enforcement.
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THE PROBLEM OF EXAMINATION OF CORPORATE DISPUTE CASE WITHIN A REASONABLE TIME IN RA CIVIL LITIGATION
AbstractAs a result of the investigation, it was found out that there are some restrictions regarding the examination of certain cases of corporate disputes, both in the case of simplified and expedited proceedings, on the basis of which there is a problem of maintaining a corporate dispute case within a reasonable time. Regarding the solution of the mentioned legal problem, there has been made a proposal, which will give an opportunity to the court to apply an expedited trial and reject the claim, saving both the court costs of the persons involved in the case, as well as to relieve the court from unnecessary examination of a number of cases in which there is a misuse of the realization of procedural rights by the involved person in the case.
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ADMINISTRATIVE CONTROL AS AN ALTERNATIVE PREVENTIVE MEASURE
AbstractWithin the framework of this article, a new type of preventive measure provided for by the new Code of Criminal Procedure - Administrative control -has been discussed. Reference was made to the necessity and justification of the introduction of the mentioned preventive measure, its place in the general preventive measure system. In addition, within the framework of the article, the conditions of the application of this preventive measure, the limitations of the rights of the person envisaged as a result of its application, their nature, as well as the problems of the application of administrative control were discussed.
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ON THE ISSUE OF THE APPLICATION OF PROCEEDINGS CARRIED OUT IN THE ABSENCE OF THE ACCUSED
AbstractThe article considers the question of whether the procedure of proceedings carried out in the absence of the accused can be applied in criminal cases in which the proceedings were initiated before the entry into force of the norms regulating the said proceedings. The author, based on legislative regulations, judicial practice and opinions expressed in the theoretical literature, proposes a solution that will make possible the uniform application of the law and ensure the unity of practice.
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Articles
DIGITAL SEARCH AS A NEW INVESTIGATIVE ACTION ACCORDING TO THE NEW CRIMINAL PROCEDURE CODE OF THE REPUBLIC OF ARMENIA
AbstractThe new Criminal Procedure Code of the Republic of Armenia envisages digital search as a new investigative action in order to make the search of electronic data stored in computer systems effective. In the submitted article, the author discusses the necessity of defining digital search as an independent investigative action in the light of peculiarities of electronic data, as well as analyzes the benefits of envisaged legal regulations. At the same time, the author identifies a number of shortcomings based on international standards for search and seizure of computer data.
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FORMATION AND DEVELOPMENT OF THE LEGAL INSTITUTION FOR STATE PROTECTION OF PARTICIPANTS IN CRIMINAL PROCEEDINGS
AbstractThe article is dedicated to the consideration of the issues of the formation and development of the institution of participant protection in criminal proceedings, ensuring the security of persons subject to state protection, both in European states and on the territory of the former USSR states. The article also discusses the development of the institution of protection of participants in criminal proceedings in Armenia and its role at the current state.
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SOME ISSUES OF THE CORPUS DELICTI OF "PARTICIPATION OR INVOLVEMENT IN A CRIMINAL SUBCULTURAL GROUP"
AbstractThe article covers some issues of the corpus delicti of "participation or involvement in a criminal subcultural group". In particular, the author of the article touched upon the problems in the legal norm of Part 2 of Article 223.3 of the RA Criminal Code. As a result the author considering the legal positions expressed in the theory of criminal law and the experience of foreign countries proposed to declare null and void that legal norm.
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THE EVOLUTION OF THE LEGISLATIVE PROVISION OF PENAL DIFFERENTIATION AND INDIVIDUALIZATION OF SENTENCING
AbstractThe evolution of the legislative provision of penal differentiation and individualization of sentencing The present article highlights the penitentiary differentiation and individualization of the execution of punishments, as well as the evolution of its fixation. Under the influence of democratization of public life, and the adoption of a full legal concept of human rights , as well as under the condition of the independence of the RA one of the legal reforms became the review of the penal policy and the reforms of the legislation. Also, the article aims to introduce the new Penal Code of RA adopted on June 15,2022 which inproved the legal technique of fixing and legal regulation of the principles of penal law in the penal legislation.
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CERTAIN ISSUES RELATED TO THE NOTION OF “OFFICIAL”
AbstractThe notion of “official” was analyzed in the scientific article. The peculiarities of the content of this concept in different legal acts were referred to. The analysis of the content of the concept of "official" is based on the study of both theoretical literature and case law.
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THE CORRELATION OF FREE ACCESS TO THE SEA AND SOVEREIGNTY OF THE STATES IN THE INTERNATIONAL LAW OF THE SEA
AbstractThe problem of ensuring the rights of the Landlocked States in the Law of the Sea is expressed in the emphasized confrontation between the principles of Sovereignty and Freedom of the High Seas. The content of the principles of Sovereignty and Freedom of the High Seas in the Law of the Sea is analyzed in the article, and it also presents the necessary prerequisites for realizing of the right of Landlocked States to Free Access to the Sea. The conventions concerning the rights of Landlocked States are subject to a comparative analysis in the article, it as well discusses the changes in the content of the right of Access to the Sea. The article addresses the nuances of the right of transit in the Law of the Sea and in International Economic Law. As a result of the study, conclusions are drawn in regard to the reduction of the dominant influence of the Sovereignty principle in the Law of the Sea.
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