Petut'yun ev iravunk'
P-ISSN: 1829-023X
E-ISSN: 2738-2508
Vol. 97 No. 3 (2023): State and Law
Articles
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Articles
ASSESSMENT OF THE LEGAL FRAMEWORK OF DECENTRALIZED GOVERNANCE OF NATURAL RESOURCES AND ENVIRONMENT IN ARMENIA
AbstractThe scholarship and policy discourse on decentralization are increasingly recognizing the importance of local communities in addressing environmental degradation and ensuring sustainable use of natural resources, all while maximizing the benefits to the communities. In Armenia, local governance has experienced inefficiencies in capacities and provision of public services for decades. The state amalgamation policy, under which 915 communities have been merged into 64, had one of its objectives to overcome the mentioned inefficiencies also by increasing economic, financial and environmental benefits to the communities from the improved access to natural resources and environmental conservation.
In light of this scholarly and policy debate, this paper, drawing on significant empirical data, evaluates, for the first time, the extent of decentralization of natural resources and environmental governance in Armenia. We find that decentralization in the field concerned is occurring at a very slow pace, and the amalgamation reform has had no observable impact on the status qua since regulatory, capacity and accountability gaps in decentralization remain unaddressed.
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THEORETICAL AND PRACTICAL BASIS FOR APPLYING METHODOLOGICAL PECULIARITIES IN CONSTITUTION INTERPRETATION
AbstractIn the process of legal interpretation, a common question arises whether the provisions of the constitution and other normative legal acts should be interpreted using the same methodology, or if they possess certain unique characteristics.
Studying the reasons, the characteristics of the constitution that cause the need to apply a special methodology in the process of interpreting the constitution, including being a unique legal act of its kind, having the highest legal force in the legal system, being both a legal and a political document at the same time, having a specific object and method of regulation, having the goal of limiting public power, having broad and general regulations, stability, value-based nature and containing legal symbols - we believe that they create the need for the interpretation of the norms of the constitution to be carried out with a special methodology, which will not be limited to the leading methods of legislative interpretation, and the main purpose of which should be to ensure the interpretation of the constitution in accordance with the values reflected in it.
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Articles
THE ISSUES OF MOBILIZATION IN THE CONTEXT OF THE CONSTITUTIONAL RIGHT TO SOCIAL SECURITY
AbstractDuring the military actions unleashed by the Azerbaijani side in September-November 2020, some social problems of persons undergoing mobilization military service were identified, the need for regulation of which stems not only from the constitutional right to social protection, but also from the idea of a self-proclaimed social state.
The purpose of this study is to emphasize the social problems of mobilized citizens, show international experience in solving such issues, the shortcomings of domestic legislation, the relationship between practical problems and legislative norms and, as a result, present clear proposals for solving these problems in the context of the idea of a social state and the constitutional right to social protection.
As a result of the discussion, it was concluded that in the domestic legislation there are no provisions not only providing for the possibility of maintaining the wages of persons undergoing mobilization military service, but also providing opportunities to eliminate or reduce the impossibility of fulfilling certain civil duties of citizens during mobilization military service, as well as eliminating or reducing possible negative consequences arising from this. As a result, it was proposed to consolidate such norms at the legislative level, taking into account the individual cases of each citizen undergoing mobilization military service; when introducing such norms, take into account the financial and economic situation of the state, and also not neglect the need for uninterrupted work of employers whose employees were called up for military service.
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Articles
SOME ISSUES OF THE CHILD'S RIGHT TO HEALTH
AbstractThe article discusses and analyzes the issue of ensuring the child's participation in the decision-making process related to health condition, particularly from the point of view of giving the child's consent for medical intervention, as well as the issue of parents' participation in the decision-making process related to the child's health condition.
As a result of the conducted analysis, it is justified that the child should not act as a passive observer in the decision-making process related to the health condition, but at the same time, the role of the child in the mentioned process should not be absolute.
In the context of medical care and service, the child's age, level of maturity, ability to make decisions independently, the nature of the medical care and services to be provided due to the child's health condition, and the urgency of providing medical intervention are distinguished as circumstances for taking the child's opinion into account.
The article also highlights the main conditions for obtaining a child's consent for medical intervention.
In the framework of the work, it is justified that, from the point of view of solving the issue of providing medical care and services to the child, a more flexible approach should be adopted, and it should be considered legitimate for one parent to make decisions regarding the health care of the child in cases (for example, in the context of urgent medical care and services), when it is in the interests of the child, taking into account the health condition of the child.
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Articles
THEORETICAL AND PRACTICAL PROBLEMS OF DEFINING THE ESSENCE OF AN ADMINISTRATIVE CLAIM
AbstractIn practice, gaps in legal regulations are often eliminated with local solutions, without addressing the theoretical basis of these gaps, resulting in the definition of such regulations, which, despite providing a solution to practical problems in the short term, lead to greater practical gaps in the long term.
This article with the title "Theoretical and practical problems of defining the essence of an administrative claim" is dedicated to the study of such questions of practical importance that lead to the discovery of the essence of an administrative claim, in that context, defining all the elements of the essence of an administrative claim: the grounds, subject, object and content (pleading element) of the claim, and comparative to the analysis, to the extraction of the grounds, object and pleading element of each of the types of claims defined by the Code of Administrative Procedure of the RA, to reveal their nature, in the context of two types of claims known in jurisprudence: executive and cognitive claims.
The study of the mentioned questions was carried out not only in a scientific, but also in a practical context, highlighting the direct connection and influence of these questions on such procedural tools as arise as a result of the change of the grounds and subject of the claim or the possibility of examining the case in general in the administrative court.
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GENERAL CHARACTERISTICS OF ABUSE OF RIGHT IN CORPORATE LEGAL RELATIONS
AbstractThe article discusses the features of the application of one of the fundamental principles of civil law of the Republic of Armenia, the prohibition of abuse of rights, in the context of corporate legal relations. In particular, a theoretical and practical study of the term "abuse of rights" was carried out by comparing it with other legal institutions regulating corporate legal relations.
The term "abuse of right" is not defined as such by the legislation of the Republic of Armenia, and in corporate legal relations, the definition of valid conditions necessary to identify the fact of abuse of right in the behavior of subjects is the discretion of the courts for each case.
During the exercise of their subjective rights by the participants of corporate legal relations, the need to give a legal assessment to the manifestations of abuse has become more relevant than ever, which is also due to the current period of development of global economic relations. Moreover, the analysis of judicial practice also indicates the quantitative increase in cases of abuse of rights in corporate legal relations, including disputes of a corporate nature.
The absence of a clear definition of the term "abuse of rights" by the current legal regulations has led to the need to reveal its objective criteria and valid conditions and establish them in legislation, due to which the criteria of features characterizing the abuse of rights in corporate legal relations have been distinguished in the article.
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BOUNDARIES IN ASSESSING LEGITIMACY OF NORMATIVE LEGAL ACTS IN ADMINISTRATIVE PROCEDURE
AbstractThe article is dedicated to the limits of judicial control in cases of challenging the legitimacy of normative legal acts. The specific procedural framework established by the legislator for cases contesting such acts, notably regulatory legal acts, is explored. Within the confines of this research, nuanced issues arising in practical scenarios are scrutinized, with particular emphasis on the assessment of the conformity of a normative legal act or its provisions with a superior normative legal act or its provisions that were once effective but have subsequently become obsolete. The analysis contributes to a deeper understanding of the complexities inherent in adjudicating the legitimacy of normative legal acts and the evolving dynamics between current and obsolete legal provisions.
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FEATURES OF CORPORATE GOVERNANCE OF VENTURE JOINT-STOCK COMPANIES
AbstractThe relevance of this scientific work is due to the fact that in the conditions of modern economic and legal relations, startups and corporations with the involvement of venture capital (especially foreign) have become widespread in international practice (conditionally we called them venture joint-stock companies (VJSC)), which, however, remained outside the scope of regulation of the legislation of the Republic of Armenia.
As a result of the above-mentioned regulation, the RA legislation has lagged behind modern trends, does not regulate the VJSC as a separate, independent type of corporation, the issues of their flexible corporate governance, the formation of management bodies, special rights and privileges granted to foreign venture investors, thereby creating unnecessary obstacles to venture investments and capital inflows and the creation of startup companies.
The purpose of the study is to identify the features and specific features of VJSC corporate governance, the specifics of the formation and activities of their governing bodies-the meeting, the board and the executive body, the rights and privileges certified by shares of venture investors who are shareholders of VJSC, in comparison also with joint-stock companies of a general type.
In accordance with this, the amendments and additions made to the law, their shortcomings and omissions, the unreasonableness of restrictions on the rights granted to venture investors by ordinary and preferred shares, the powers and special rights of venture investors within the framework of the formation and activities of management bodies, as well as their substantive elements were studied and analyzed.
As a result of the conducted research and studies, it was proposed to introduce a unique corporate governance system of VJSC as a special type of corporation, the features inherent in each of their governing bodies, which will bring the current legislative regulations in line with progressive trends and the development of corporate law.
The results of the study are of important theoretical and practical importance, since they make it possible, on the one hand, to form a theoretical understanding of the features of the VJSC, on the other -in practice to establish startup VJSCs and ensure their normal functioning.
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THE PRINCIPLES OF PROFESSIONAL LIABILITY INSURANCE
AbstractIn civil relations, various types of professional activities (auditing, advocacy, expert, crisis management, etc.) are provided to civil relations entities in larger volumes day by day, which in turn leads to damages caused as a result of incomplete provision of services. One of the most effective ways to share the burden of paying for those damages is liability insurance. The latter justifies that the separation of types of insurance and the definition of legal regulations remain extremely relevant. In the article, for the first time, we have tried to separate the principles of professional liability insurance, to define such basic provisions that will condition the further legal regulation of the institution under discussion. From that point of view, we distinguish two principles: "responsibility only for the damage caused by professional activity" and "reimbursing the beneficiary receiving services." We have emphasized that the operation of the discussed insurance institute in this case will be incomplete if we only limit ourselves to distinguishing the circumstance of the policy holder engaging in a certain professional activity. We considered it necessary to record that the insured accident must occur exclusively in connection with engaging in such activity or carrying it out, which will be a necessary prerequisite for starting the insurance compensation process and providing compensation.
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TYPES OF PUBLIC POLICY EXCEPTION: NATIONAL, INTERNATIONAL AND SUPRANATIONAL: FEATURES OF THEIR THEORETICAL AND PRACTICAL APPLICATION
AbstractIn this context, the purpose of this work is to discuss national, international and transnational types of public policy, as a result of which conclusions are drawn about the limits of theoretical and practical application of all mentioned types, which can be the basis for the proper application of the public policy exception within legal practice. In the context of the development of private international relations, the number of cases of applying the norms of foreign law is also increasing. In such conditions, the role of the exception of public policy is emphasized within legal arsenal of states as a means of protection when a foreign norm contradicts the fundamental values of of the given country’s society. In this regard, it is necessary to sufficiently study this legal mechanism, including its various types, which can become a necessary methodological basis when referring to it and applying it.
In this context, the purpose of this work is to discuss national, international and transnational types of public policy, as a result of which conclusions are drawn about the limits of theoretical and practical application of all mentioned types, which can be the basis for the proper application of the public policy exception within legal practice. At the same time, reference is made to the history of the development of the specified types of the exception of public policy, the prerequisites for their emergence, the existing theoretical approaches to them, as well as cases of practical application, which together make it possible to form a comprehensive understanding of these types of public policy exceptions and to draw conclusions about their practical necessity.
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THE PROBLEMS OF OWNERSHIP OF MINING WASTES IN THE REPUBLIC OF ARMENIA
AbstractMining wastes have now acquired great economic importance, becoming a subject of civil law transactions. The issues of ownership of mining wastes as objects of civil law, despite their complex legal regime, are not regulated by the legislation of the Republic of Armenia, because of which problems arise in interpreting this issue at the theoretical level and within the framework of disputes triggering between the subsoil user and the state.
The present article discusses the issues of ownership of mining wastes as objects of civil law in the legal relations of subsoil use. The basic concept of mining waste as an object of civil rights is mentioned, the subject of ownership of mining wastes, problems and gaps in national legislation concerning the exercise of powers that constitute the content of ownership rights are revealed. Further, disputes arising in law enforcement practice on the ownership of mining waste are studied and analyzed.
Based on the analysis conducted in this article, proposals are presented aimed at clarifying the subject of ownership of mining waste and the moment of obtaining ownership upon mining wastes, as well as legislative regulation of the exercise of ownership rights to mining waste, which will be essential for resolving disputes arising between the subsoil user and the state in law enforcement practice.
Mining wastes have now acquired great economic importance, becoming a subject of civil law transactions. The issues of ownership of mining wastes as objects of civil law, despite their complex legal regime, are not regulated by the legislation of the Republic of Armenia, because of which problems arise in interpreting this issue at the theoretical level and within the framework of disputes triggering between the subsoil user and the state.
The present article discusses the issues of ownership of mining wastes as objects of civil law in the legal relations of subsoil use. The basic concept of mining waste as an object of civil rights is mentioned, the subject of ownership of mining wastes, problems and gaps in national legislation concerning the exercise of powers that constitute the content of ownership rights are revealed. Further, disputes arising in law enforcement practice on the ownership of mining waste are studied and analyzed.
Based on the analysis conducted in this article, proposals are presented aimed at clarifying the subject of ownership of mining waste and the moment of obtaining ownership upon mining wastes, as well as legislative regulation of the exercise of ownership rights to mining waste, which will be essential for resolving disputes arising between the subsoil user and the state in law enforcement practice.
Mining wastes have now acquired great economic importance, becoming a subject of civil law transactions. The issues of ownership of mining wastes as objects of civil law, despite their complex legal regime, are not regulated by the legislation of the Republic of Armenia, because of which problems arise in interpreting this issue at the theoretical level and within the framework of disputes triggering between the subsoil user and the state.
The present article discusses the issues of ownership of mining wastes as objects of civil law in the legal relations of subsoil use. The basic concept of mining waste as an object of civil rights is mentioned, the subject of ownership of mining wastes, problems and gaps in national legislation concerning the exercise of powers that constitute the content of ownership rights are revealed. Further, disputes arising in law enforcement practice on the ownership of mining waste are studied and analyzed.
Based on the analysis conducted in this article, proposals are presented aimed at clarifying the subject of ownership of mining waste and the moment of obtaining ownership upon mining wastes, as well as legislative regulation of the exercise of ownership rights to mining waste, which will be essential for resolving disputes arising between the subsoil user and the state in law enforcement practice.
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Articles
GENERAL CHARACTERISTICS, SOCIO-ECONOMIC SIGNIFICANCE OF BLOCKCHAIN TECHNOLOGY
AbstractThe article delves into the widespread and extensively debated blockchain technology, exploring its multifaceted characteristics over recent decades. It provides a historical overview and delves into the experiential facets of the blockchain system. Emphasizing the system's role as a platform facilitating the creation and circulation of crypto assets, the article underscores its pivotal role in ensuring heightened accountability, transparency, and trust among participants. Beyond its impact on information technology, the article extends its focus to elucidate the profound consequences of blockchain technology on various sectors.
A central aspect of the article centers on delineating the primary characteristics and distinguishing features of the blockchain system. It thoroughly outlines the transactional processes within the system and elucidates the unique attributes of such transactions. Moreover, the article delves into the technological intricacies of the blockchain system, particularly as they pertain to legal regulations governing transactions within the system and the resolution of potential legal challenges.
Building upon the identified insights into the essence and nature of blockchain technology, the article strategically navigates towards an examination of the socio-economic role and significance of this transformative technology. The exploration extends to unveiling the social value of blockchain, employing evaluative methods grounded in established theoretical frameworks.
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EXAMINATION AND RESOLUTION OF THE ISSUE OF ADMISSIBILITY OF EVIDENCE IN PRELIMINARY HEARINGS AS A GUARANTEE OF THE PRINCIPLE OF ADVERSARIAL PROCEEDING
AbstractThis article delves into the emerging institution of preliminary hearings within the Armenian criminal procedure system, shedding light on its contemporary relevance, especially concerning the admissibility of evidence. As a recent addition to the legal landscape, preliminary hearings have become a pivotal phase for criminal cases entering judicial examination, making them a focal point for discussion.
The primary objective of this article is to address certain problematic aspects related to the principle of adversarial proceedings within the context of preliminary hearings. The author navigates through the distinctive challenges posed by this novice legal mechanism, recognizing its significance in a wide array of criminal cases.
The central argument posits that when grappling with questions of evidence admissibility during preliminary hearings, a clear and decisive regulatory framework is essential. The author advocates for a streamlined process that either deems evidence admissible or inadmissible during this critical stage. Emphasizing the importance of prompt resolution, the article contends that delaying the discussion on the admissibility of evidence is counterproductive and does not align with the principles of effective and fair adversarial proceedings. In essence, the conclusion asserts that a proactive regulatory approach is imperative for ensuring the optimal implementation of preliminary hearings, a vital phase in the evolving landscape of Armenian criminal procedure.
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ANALYSIS OF LEGISLATIVE EXPERIENCE OF STATE PROTECTION OF PARTICIPANTS IN CRIMINAL PROCEEDINGS IN FOREIGN COUNTRIES
AbstractThis article discusses issues related to the regulation of the sphere of ensuring the safety and state protection of participants in criminal proceedings. The article analyzes the experience of foreign countries, including the USA, Canada, the French Republic, the Great Britain, the Kingdom of Spain, the Italian Republic, the Federal Republic of Germany, in regulating the safety ensuring system for participants in criminal proceedings. Based on an analysis of the relevant legal acts of these countries and examples of the practical application of the provisions defined in them, criteria and mechanisms for the formation of an effective system for ensuring the safety of participants in criminal proceedings are highlighted. As a result of the study, it was also emphasized that in the field of protection of participants in criminal proceedings, not only measures are needed to ensure physical safety, but also a unified system of social, psychological and financial support. The article also discusses the importance of involving private companies and public organizations in the field of protecting participants in criminal proceedings. In addition, the article formulates proposals for improving national legislation and legal practice in the field of regulation of this legal institution. In particular, the need to develop a national strategy for state protection of participants in criminal proceedings was discussed, taking into account the domestic legal system, its characteristics, the way of thinking of society and world standards.
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NATIONAL MONITORING MECHANISMS: STRENGTHENING THE ACTION AGAINST TRAFFICKING IN HUMAN BEINGS
AbstractAction against human trafficking needs a diverse and multilayer approach. It should include not only criminal justice response to the offence of trafficking in human beings and its forms but also protection, assistance and other essential rights of victims. For this purpose, states are anticipated to establish necessary institutions and mechanisms, which should ensure a human rights-based approach to the victims of the trafficking in human beings.
In the architecture of action against trafficking in human beings, independent monitoring has a key role. It contributes to prevention, intervention, policy development, international collaboration, and overall improvement in the protection of human rights in the field. Those mechanisms have a significant role in supporting the policymakers and governmental institutions to develop and implement strategic documents, contributing to the identification of cases of human trafficking and communicating them with law enforcement, and collaborating and exchanging information with international organisations, particularly monitoring mechanisms. Furthermore, it can potentially serve as a bridge between civil society and the state, highlighting the role of civil society in supporting victims. Lastly, the national monitoring mechanisms in action against the trafficking in human beings can also be engaged in raising awareness among the general public, presenting the issue in an accessible manner.
The current article seeks to reveal why is it important to have national monitoring mechanisms for action against the trafficking in human beings, its mandate and different models, the synergy of the operation of national and international monitoring mechanisms of the field, cooperation with stakeholders, as well as the international standards and best practices based on the country-specific examples.
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PLANNED STRATEGIES - UNFORESEEN CONSEQUENCES. COMPARING TARGETED AND COMPREHENSIVE SANCTIONS
AbstractThis paper delves into the intricate relationship between the principle of proportionality and the transition from comprehensive to targeted sanctions. The principle of proportionality, embedded in various facets of international law, serves as a delicate balancing act, carefully weighing competing rights and interests.
The shift towards targeted sanctions, motivated by humanitarian concerns, seeks to minimize harm to civilians. However, challenges remain, particularly with sectoral sanctions, which, despite their targeted nature, can have far-reaching and unpredictable consequences. The paper meticulously examines sectoral sanctions in comparison with comprehensive sanctions, acknowledging their potential for unintended harm and evaluating their effectiveness.
The concept of "efficient sanctions" is introduced, emphasizing the strategic targeting of a country's vulnerabilities to induce rapid concessions. Despite varying objectives, all sanctions inherently employ pain to achieve their goals, raising questions about the balance between the sender's objectives and the discomfort inflicted on the target. The paper explores the application of the proportionality principle to unilateral targeted sanctions in international law, exposing legal gaps and grey areas. Countermeasures, considered a circumstance precluding wrongfulness, offer a defined proportionality threshold; however, limitations on third-party rights are emphasized. The paper concludes by highlighting the ongoing challenges in achieving a genuinely proportional approach to sanctions, stressing the need for a more comprehensive legal framework.
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