ScienceRise: Juridical Science

The formation and development of concepts of access to court: a historical and legal context

Olha Balatska — Mon, 30 Sep 2024 00:00:00 +0300

The article is dedicated to the study of the elements of the formation and development of the judicial branch of power in specific historical periods in the context of outlining the principle of access to justice, particularly from the establishment of early states to modern times. In light of this, the article draws attention to the manifestations and signs of ensuring citizens' right of access to court from the perspective of studying the general historical progress of the judiciary. The analysis allowed the author to identify four main stages in the formation of the principle of access to justice in the world history of state and law: ancient, new, modern, and globalization. At the same time, the author emphasizes the different degrees of development and characteristic features of specific historical stages of the evolution of access to court and justice. It is established that already at the stage of formation and development of the ancient type of state and law (both Eastern and Western typologies), the formation of territoriality as one of the key components of the principle of access to justice began. Initially, judicial functions within the competence of the bodies and officials of the ancient states were combined with administrative and executive functions. The period of modern times is associated with the formulation of the political and legal idea of the separation of powers with the identification of an independent judiciary and the concept of due process, which is based on the modern notion of the ideal model of the organization and functioning of the judiciary in a democratic society. The rapid development and evolution of access to justice occurred in the modern stage, including the Florentine project of M. Cappelletti's "access to justice movement," which included a set of measures, aimed at ensuring real access to justice. The article concludes that the modern concept of access to court and justice involves its comprehension through empirical and pluralistic (multifaceted) approaches, taking into account not only obstacles and barriers to access to court and justice but also analytical data on the real state of affairs in the field of justice, considering various aspects of access to justice in the modern world

Division and spin-off as legal forms of disaggregation of economic organizations

Nataliia Shcherbakova — Mon, 30 Sep 2024 00:00:00 +0300

The article highlights the issues of division and spin-off as legal forms of disaggregation of economic organisations, provides legal regulation of these forms in Ukraine, the EU, foreign countries (Germany, Poland) and the relevant analysis of court practice.

The author identifies the general (common) features of division and spin-off of economic organisations according to the following criteria: subject composition, purpose, legal form of disaggregation, basis for legal relations; documentation of property transfer, rights and obligations; universal legal succession; and subsidiary liability. The author distinguishes special (distinctive) features of division and spin-off of economic entities according to the following criteria: legal result; legal consequences; and the moment of procedure completion.

It is substantiated that it is advisable to regulate the basic concepts and essential characteristics of disaggregation of economic organisations by means of division and spin-off in the Commercial Code of Ukraine or, in the future, in the Economic Code of Ukraine. In this regard, the author provides the wording of the relevant definitions of division and spin-off, which is proposed to be enshrined in parts 4 and 5 of Article 59¹ ‘Termination of an Economic Organization by Reorganisation’.

It is found that the analysis of court practice regarding the essence of reorganisation in the form of spin-off shows a difference in approaches, which are fundamentally opposite in nature, when: (1) spin-off is not recognised as a type of termination or reorganisation of a legal entity; (2) spin-off is defined as a form of reorganisation of a legal entity. The author proves that such ambiguity of court practice affects the consideration of a case on the merits, in particular, when changing the subject composition in land lease agreements in the event of a lessee's reorganisation by way of spin-off.

The author proposes, taking into account the legislation of foreign countries (Germany and Poland) and EU law, to introduce the following legal forms and constructions into the current legislation of Ukraine: (1) ‘division by acquisition’ (simultaneous use of the forms of division and accession), (2) ‘spin-off by acquisition’ (simultaneous use of the forms of spin-off and accession); (3) ‘separation’ (for JSC, LLC, ALC) - by the formation of a new company and by acquisition.

The relationship between attorney and judge: an ethical dilemma

Yevheniia Duliba, Vladyslav Teremetskyi — Mon, 30 Sep 2024 00:00:00 +0300

The relevance of this research lies in clarifying the nature of the relationship between an attorney and a judge in the context of power dynamics, professional ethics and interpersonal communication. The purpose of the study is to determine the role of professional ethics in shaping the relationship between an attorney and a judge, as well as the impact of personal relationships between attorneys and judges on the judicial decision-making process. The methodological basis of the study is general scientific and special legal methods of knowledge, in particular philosophical dialectic, comparative legal, idealisation and formalisation methods. The materials used for this study are the works of domestic and foreign scholars, and the provisions of national, foreign and international legislation.

The results of the study show that the relationship between an attorney and a judge is inherently complex, dynamic and critical, since it is at the intersection of legal norms, professional ethics and personal interactions.

The relationship between attorneys and judges is an important component of the judicial process, as it affects the efficiency and fairness of decisions. These relationships are formed through a complex interplay of historical, ethical, professional, as well as personal interactions. Effective communication, mutual respect and a clear understanding of the role of each party are crucial to strengthen constructive relationships.

The findings of the study indicate that a constructive relationship between judges and attorneys is an important element in ensuring the integrity of the legal system. Adhering to established ethical standards and maintaining an atmosphere of mutual respect and professionalism, judges and attorneys promote the administration of justice in accordance with the needs of all participants in the process, thereby increasing the level of trust and reliability of the judicial system