Petut'yun ev iravunk'
P-ISSN: 1829-023X
E-ISSN: 2738-2508
Vol. 95 No. 1 (2023): State and Law
Full Issue
Articles
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Articles
TYPES OF LEGAL POSSIBILITIES AND THEIR FEATURES
AbstractThe need to analyze the main types of legal possibilities is of great methodological importance for a number of reasons. In particular, in the process of the analysis, the legal prerequisites that underlie the patterns of development of legal phenomena and realities are considered and highlighted, thanks to which it becomes possible to understand the structure of the realization of law. In addition, the allocation of certain types of legal possibilities is of great practical importance for ensuring fundamental human rights and freedoms. In the article, the author, based on common features and signs of different possibilities in law, classifies legal possibilities into the following main types: real and formal, general (abstract), specific and actual, necessary and random legal possibilities.
The author considers the listed legal possibilities in terms of the close relationship between the philosophy of law and legal practice (realization of law), and also pays special attention to the problem of the correlation of the general (abstract) and specific possibilities in law, using the example of the constitutional norms of the legislation of the Republic of Armenia.
According to the conclusion presented in the article, a deep analysis of the main types of legal possibilities makes it possible to manage the process of turning the theoretical as possibilty into practical as reality, with a way of the optimal and most effective legal regulation of the relevant social relations.
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Articles
SOME MAIN ISSUES ASSOCIATED WITH CERTAIN TYPES OF ADMINISTRATIVE PROCEEDINGS
AbstractThe article "Some main issues associated with certain types of administrative proceedings" includes valuable opinions on important theoretical and practical issues regarding administrative proceedings. The author has emphasized that in order to improve the legal framework, it is first of all necessary to clearly define the need to balance the principles of the efficiency of administration and the protection of the rights and freedoms of individuals.
As a result, the author came to the conclusion that:1) the existence of separate types of administrative proceedings has a dual purpose. (1) ensuring the effectiveness of the implementation of public authority functions in individual spheres of administration, and (2) ensuring the guaranteed realization and protection of the rights and freedoms of individuals and legal entities participating in individual spheres of administration. The special structural or procedural rules of administrative proceedings in the legal system must fulfill the above two functions at the same time.
2) The legitimate purpose of providing for a specific type of administrative procedure and its features is the efficiency of administration in a specific area of public authority implementation and the improvement of structures for the protection of rights and freedoms of individuals, including ensuring the existence of an effective means of protection of rights in individual areas of administration.
3) It is the positive duty of the legal state to be guided by the concept that the principles of efficiency and legal protection of the person should be laid at the basis of the legal regulations, guaranteeing the realization of the latter with appropriate structures and procedures.
4) It is the positive duty of the competent body implementing a particular type of administrative procedure to reasonably balance the joint realization of the principles of administrative efficiency and legal protection of the person in the legal process.
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Articles
THE ESSENCE OF THE INSTITUTE OF SUSPENSION OF EXECUTION OF AN ADMINISTRATIVE ACT
AbstractThe right to judicial protection and one of the essential features of an administrative act, enforceability, inevitably collide at a particular moment in the judicial procedure of challenging the administrative acts. In this process, the institution of suspension of execution of an administrative act is aimed at ensuring an effective balance between the fundamental principle of the effectiveness of the law and the protection of the rights of the person challenging the administrative act. Yet, despite this circumstance, the essence of the institution of suspending the execution of an administrative act, both at the theoretical level and in law enforcement practice, still needs to be perceived equally.
In this scientific article, in the context of the fundamental right to judicial protection and as a result of the discussion of the recommendations of the Council of Europe and constitutional regulations in the Republic of Armenia, the essence of the components of the concept of "suspension of execution of an administrative act" and the legal content of this institute are revealed. As a result, the author concludes that the suspension of execution of an administrative act can serve its primary purposes of the suppression of excessive damage to the plaintiff and the preservation of the situation existing at the time of applying to the court only if its legal interpretation ensures the preservation of the actual and legal situation existing at the time of applying to the court. Based on what is stated in the scientific article, the essence of the discussed institution is revealed, and its definition is given.
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Articles
THEORETICAL PROBLEMS OF THE CHARACTERIZATION OF CORRUPTION
AbstractThe article is dedicated to the identification of theoretical and practical problems of defining corruption, the observation of which in the framework of the scientific dimension can be of significant importance in making the process of fighting corruption more objective and effective. Revealing the content of corruption as a set of problems weakening the stability and immunity of legal institutions of society is an important guarantee of overcoming these problems.
The study of various strategic documents for the development of the fight against corruption indicates the lack of a unified and general definition of corruption, which in a number of cases complicates the process of evaluating the results of the implemented fight, so the reference to the theoretical and practical problems of the definition of corruption stems from the existence of the above problems. As a result of a complex study of the theoretical literature and regulations of legal acts, the article highlights the components that play a key role in the definition of corruption. Among those components are pursuit of profit or benefit, distortion of justice, agreement to receive/give benefit, abuse of position, systemic nature. The definition of corruption was also presented in the light of the accounting of the above components and the disclosure of their content.
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MODERN PROBLEMS OF IMPLEMENTATION OF PUBLIC AUTHORITY BY NON-STATE BODIES
AbstractRealization of public authority functions by non-state bodies has been widespread for a long time, but many legal issues associated with it still require adequate in-depth research. The paper attempts to address some of the issues related to the implementation of public state functions by non-state bodies, presenting them on the example of auditing activities.
The article presents new normative acts concerning the specialized structure, which has public functions in the field of auditing activity. Discussing the legal status of this entity, the author characterizes it as "indefinite", that is, it does not act fully as a subject of public or private law. In the author's opinion, the existing rules have created risks of violation of prohibition on competition and compulsory membership in private associations.
According to the author, the institution transferring the governmental powers, distinguished by its importance, has not yet become the subject of deep and complex legal regulation, and practical situational solutions appear to be apparently vulnerable. Therefore, the institute as a research subject is still in the establishment stage in the local, legal system, which makes it a priority to consider conducting similar studies, removing the existing gaps and deficiencies, and afterwards planning new legislative regulations.
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THE NECESSITY OF LIBERALIZATION OF THE REAL ESTATE LEASE AGREEMENT
AbstractThe article examines the legislative requirements for the form of lease agreements in the Republic of Armenia. It is noted that the Civil Code of the Republic of Armenia provides for a rather strict approach requiring notarization of any lease agreement concluded with real estate and registration of the rights arising from it in the cadastre.
Similar regulations of the CIS and European countries are being studied, where the legislator takes a more liberal approach in the case of short-term lease agreements. Short-term lease agreements are usually concluded in simple written form.
The approach taken in the Republic of Armenia unnecessarily restricts civil circulation. As a result, we do not notarize contracts, which deprives the tenant of the opportunity to protect their rights. Landlords can request to vacate the apartment at any time without any restrictions. As a result, the current approach puts vulnerable groups at risk.
At the same time, the restriction does not serve any purpose and does not bring a tangible positive effect.
Using the methods of economic analysis of law and comparative law, it is substantiated that in the case of a short-term lease of real estate up to one year, notarization of the transaction is not required, and the rights arising from this transaction do not need to be registered. The proposed approach is more logical and aimed at reducing the total costs of participants in civil transactions.
At the same time, in the case of unregistered lease agreements, it is proposed to consider them terminated in the event of a change in ownership of the property.
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Articles
SOME ISSUES OF DISTINCTION OF TOUR OPERATOR’S AND TRAVEL AGENT’S CIVIL LIABILITY
AbstractIn the article the author discusses gaps of the domestic legislation regulating relationships between tour operator and travel agent and distinction of civil liability thereof. Studying the content and aim of their activities, the author comes to the conclusion that despite the functional and other differences of the mentioned subjects of tourism activity, there are many legal premises for their solidary liability in case of infringement of their obligations, in particular entrepreneurial nature of tourism activity, indivisibility of travel organization service, as well as some obligations of tour agent, notwithstanding the fact, he acts on his own behalf, or on behalf of the tour operator.
The author also discusses some issues of collision regulations of civil liability for package tours formed by the foreign tour operators and promoted and realized by domestic tour agents. The author concludes, that if foreign tour operator and domestic tour agent don’t agree otherwise, the law of the Republic of Armenia is applicable to their relationships.
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CERTAIN ISSUES OF RIGHTS CERTIFIED BY COMMON AND PREFERRED SHARES
AbstractThis research is devoted to the analysis of the rights certified by ordinary and preferred shares issued by corporations (joint-stock companies), their content, domestic and foreign implementation mechanisms, the study of the implementation of different classes (types) of ordinary shares. The paper studies ordinary and preferred shares and their varieties in the context of changes and additions to the joint-stock legislation of the Republic of Armenia․ Also, emphasis is placed on new legislative regulations in connection with the provision of several types of ordinary shares and the features thereof․ In the light of the OECD standards and criteria, it is proposed to abandon the introduction of the mechanism of ordinary shares, which provide the owners of these shares with the right to more than one vote, since this jeopardizes the rights and legitimate interests of other owners of ordinary shares and violates the principle of justice. The legislative changes are based on the legislative regulations of foreign states on venture capital and angel investors, which, in fact, are not applicable to ordinary shares and the rights they certify․ At the same time, in the presence of the above regulations, some shareholders (owners of ordinary shares) get the opportunity to purchase ordinary shares with the right to more than one vote, including other privileges and additional benefits, at the same and/or low prices․ In this case, the balance of legitimate and fair interests of shareholders is violated․ As a result, it is proposed to refrain from the above institution and its mechanisms․
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EXPANDING COMPULSORY ENFORCEMENT OF EVICTION JUDGEMENT TO THIRD PARTIES NOT PARTICIPATED IN LITIGATION
AbstractIn this article the author examines peculiarities of enforcing court decisions on the recovery of immovable property from illegal possession in the Republic of Armenia. The stage of enforcement is crucial in the process of protecting rights, particularly relevant to claims for awarding, such as vindicatory claims, which involve compelling the defendant to perform factual actions, such as transferring the property to the owner. Specifically, the article examines legislative provisions authorizing the enforcement service to evict not only the addressee of the court decision but also third parties who do not have registered property rights. The extension of the court's eviction decision to third parties gives reason to believe that absolute protective legal relationships arise between the owner and an indefinite circle of individuals who illegally possess the property at the time of enforcement, while the prevailing position in legal science is that protective legal relationships always have a relative nature. These provisions are considered in light of the principle of the binding nature of judicial acts only for the participants in the judicial process and due process of law constitutional guarantee.
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ISSUES OF THE ELEMENTS OF THE CLAIM FOR CONFISCATION OF PROPERTY OF ILLICIT ORIGIN IN THE CIVIL PROCEEDINGS OF RA
AbstractDue to the specifics of the proceedings for confiscation of property of illicit origin, the elements of the claim presented in such proceedings have a differentiated manifestation. In the context of the practical significance, the criteria for the individualization of the claim of confiscation of property of illegal origin were presented in the context of the precedent decisions of the Court of Cassation RA. The article highlighted the characteristics of the claim for confiscation of property of illegal origin and the means of its distinctions. The precise determination of the scope of the factual circumstances of the claim is of a great importance in the context of determining the burden of proof and evaluating the justification of the claim. In the article, the grounds for initiating a lawsuit and the factual circumstances underlying the claim were studied, on the basis of which their differences were highlighted. It is essential to emphasize that a claim under the Law on Confiscation of Illegally Acquired Property should not only include facts that fail to justify the acquisition of property with legal income but also establish the connection between the acquisition of such property and criminal activity, aligning with the objectives set forth by the Law. Considering the fact that such claims are a novelty in judicial practice, the conclusions made in the article can be a guideline for law enforcement practice.
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SOME ISSUES OF RESPONSIBILITY OF MANAGEMENT BODIES OF JOINT-STOCK COMPANIES
AbstractThe article is devoted to the corporate liability of joint-stock companies as a separate type of civil liability.
The responsibility of corporate governance bodies is understood as the legal responsibility that a member (members) of the board of directors, a director (executive director), a member (members) of the council and directorate, a managing organization and a head bear for their actions and decisions. In other words, if any of the entities exercising corporate governance does not fulfill its obligations or does it negligently, then this body is liable both to this joint-stock company and to its stakeholders for the damage caused to them.
Identification of the specifics of the responsibility of corporate governance bodies and the allocation of grounds for liability arising from other obligations is aimed at ensuring a clear and effective resolution of disputes arising in corporate legal relations, as well as clarifying the circumstances that should be discussed when making a decision on compensation for the damage caused.
This article discusses the legislation of the Republic of Armenia, which regulates the responsibility of corporate governance bodies of joint-stock companies, the legislation of a number of foreign countries, judicial practice and the approaches of various jurists.
In particular, there was discussed the need for a special legal qualification regarding the responsibility of management bodies in corporate relations and the clarification of the circumstances holding the liability of bodies of joint-stock companies.
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BURDEN OF PROOF IN THE CRIMINAL PROCEDURE: CLASSICAL AND MODERN APPROACHES
AbstractThe article is devoted to the consideration of two approaches (classical and modern) of the study of burden of proof in criminal proceedings. The problem of the ratio of "burden of proof" and "obligation of proof" is considered. In the doctrine of common law, the presumption of innocence accompanies or is even an element of proof, establishing the rules of the standards of guilt. Currently, doctrinal approaches to the burden of proof have been slightly changed. The author highlights the importance of studying the burden of proof in the context of the specific theory of proof in the context of the national legal system. The burden of proof in the Russian criminal process exists as a procedural rule (procedural initiative) to actively collect, verify and evaluate evidence in the broad sense and as the burden of proving the accusation and refuting the arguments brought in defense of the suspect or the accused (in the narrow sense).
All these arguments allow us to state that: 1) there is no burden of proof lying on the side of the defense in the Russian criminal process as a process of continental law system, moreover, when the distribution of the burden of proof is violated, the courts of higher instances cancel the previous decisions of lower courts; 2) there are no concrete legal sanctions for the lack of proof or failure to fulfill the obligation of proof and, therefore, it is possible not to contradict "obligation of proof" and "burden of proof". At the same time, it is quite promising to study the burden of proof from the point of view of its content and distribution.
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THE BASIS AND CONDITIONS OF PROCEEDINGS IN THE ABSENCE OF THE ACCUSED IN CRIMINAL PROCEEDINGS OF THE REPUBLIC OF ARMENIA
AbstractThe article is dedicated to the basis and conditions of proceedings in the absence of the accused (proceedings in absentia) in the RA criminal proceedings. As a result of the relevant analysis, the author reveals the content of the basis and conditions of remote proceedings in criminal proceedings of the RA and emphasizes the limits of their interpretation in accordance with European standards.
The article also presents decisions of the European Court of Human Rights on this issue, and in their light discusses the theoretical problems of interpretation of the grounds and conditions of remote proceedings.
In the article an important place is occupied by the study of theoretical problems of production in the absence of the accused, in which the author refers to the interpretation of the basis and content of the conditions of proceedings in absentia. The author reveals what should be understood as evasion from participation in criminal proceedings, and also in which situations it can be said that the accused is properly notified of the criminal prosecution initiated against him. The author also believes that not only practical, but also theoretical issues of proceedings in absentia should be considered in the light of the right to a fair trial in order to correctly understand their essence and make correct assertions.
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SOME ISSUES OF INVOLVEMENT IN THE REALIZATION OF THE GOALS PURSUED BY A GROUP WITH A CRIMINAL SUBCULTURE
AbstractThe article is devoted to some issues of involvement in the realization of the goals pursued by a group with a criminal subculture. In particular, the author of the article discussed the lack of need to provide a special norm excluding criminal liability for the above-mentioned act, when the participation of a person, who is not a member of such a group, with any role in the realization of the group's goals was manifested by performing actions considered permissible by the legislation. In addition, reference was made to the need to provide a separate article for the responsibility for the act under discussion, to establish a special incentive norm exempting the persons who committed the crime and demonstrated positive post-criminal behavior from criminal liability.
As a result, the author proposed to provide responsibility for the above-mentioned crime in a separate article and establish more lenient punishment, as well as provide a special incentive norm exempting from criminal responsibility for the persons involved in the realization of the goals pursued by such a group, if the latter contributed to the disruption of the group's activities.
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CONSTITUTIONAL ISSUES RAISED BY THE RATIFICATION OF THE ICC STATUTE
AbstractThis article presents in general the main principles of the exercise of the jurisdiction of the International Criminal Court (hereinafter referred to as the ICC or the Court), the existing concerns regarding the ratification of the Court and well-founded arguments against them. The article based on the practice discusses under which circumstances the International Criminal Court can deal with the 1st Nagorno Karabakh war, and what are the main priorities for the Prosecutor’s Office. Plausible options for ratification of the ICC Statute are also discussed, in particular, the possibility of revising the constitutionality of the obligations stipulated in the ICC Statute before the Constitutional Court of the Republic of Armenia and/or the need to amend the Constitution for the purpose of ratifying the ICC Statute. The article also discusses the ways the constitutional courts can overcome constitutional challenges that they usually face while adjudicating over the constitutionality of the ICC statute.
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THE SPECIAL CHARACTERISTICS OF THE COLLISION OF CRIMINAL LAW NORMS IN CASE OF MULTIPLE OFFENSES AND RELATED CRIMES
AbstractOvercoming the collision of criminal law norms is an important issue in the crime classification process. The principles of criminal law oblige to accurately investigate the criminal conduct and to impose an appropriate criminal liability against those who committed the crime. Addressing the issue, however, remains a rather complex matter due to a series of objective and subjective circumstances.
The collision of criminal law norms is an encompassing phenomenon that is present in the entire process of the development of criminal law relations – from the fact of committing the crime to the removal or nullification of the criminal record. Addressing the issue, however, remains a rather complex matter due to a series of objective and subjective circumstances.
The following article discusses the special characteristics of collision of criminal law norms in case of multiple crimes and related crimes, as well as the distinction between the two.
The subject of the study was examined with the use of general and special scientific methods, such as dogmatic, comparative legal, logical and legal modelling.
Based on the conducted research, the article provides both scientific and practical recommendations in relation to multiplicity of crimes, specifically ideal and real combination of crimes, as well as with regard to qualification of crimes in case of multiple related counts.
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ON SOME ISSUES OF IMPROVING HOUSING CONDITIONS OF SERVICEMEN
AbstractDue to the start of the Nagorno-Karabakh conflict and subsequent wars, the issues related to the social rights of servicemen and their family members, military disabled persons, and military pensioners have gained great importance and have always been under the state's care.
The article discusses the issues related to improvement of the housing conditions of servicemen, as well as providing compensation for rented living space outside the place of permanent residence. In particular, the criteria on the basis of which the need to improve housing conditions at the place of service is assessed, certain categories of a serviceperson's family members, which are taken into account when providing a serviceperson with living space or paying monetary compensation for renting living space, were discussed. In addition, in case of non-provision of an apartment to a serviceperson at the place of service, the amount of monetary compensation for renting a living space in Yerevan and the regions of the Republic of Armenia according to the composition of the family was studied.
As a result of the analysis, the shortcomings, gaps and contradictions in the legal acts regulating the relations in question were highlighted, and appropriate recommendations are made for their elimination, completion and further improvement.
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