 |
Список использованной литературы
|
|
|
|
Список использованной литературы
1. Т. Э. Рождественская, А. Г. Гузнов «Особенности урегулирования несостоятельности (банкротства) финансовых организаций: международные и российские подходы» // Вестник университета имени О. Е. Кутафина (МГЮА), 2017 г., с. 70
2. А. А. Белоусов, Е. И. Безуглая «Становление института системно значимых кредитных организаций в Российской Федерации» // Издательский дом «ФИНАНСЫ и КРЕДИТ», 2015 г., с. 26
3. А. Г. Гузнов «Международные подходы к вопросам регулирования несостоятельности финансовых институтов» // Вестник Саратовской государственной юридической академии № 5, 2015 г., с. 105
4. Я. М. Присяжнюк, «Классификация мер по предупреждению несостоятельности (банкротства) кредитных организаций» // Вестник университета имени О. Е. Кутафина (МГЮА), 2020 г., с. 191
5. Банкротство. Правовое регулирование: Научно-практическое пособие // Попондопуло В. Ф., - Москва: Проспект, 2013 г., с. 61
Shcherbakov Mikhail
Kutafin Moscow State Law University
Institute of International law
Russian Federation, Moscow
e-mail: mixmik@list. ru
«TOO BIG TO FAIL»: IMPACT OF THE 2008 WORLD FINANCIAL AND ECONOMIC CRISIS ON APPROACHES TO IN INSTITUTUONS
Abstract: This article discusses the changes associated with approaches to the insolvency (bankruptcy) of systemically important financial organizations caused by the World Financial and Economic Crisis. The article examines international and Russian approaches to the mechanism for preventing the insolvency of financial organizations and examines lists of systemically significant financial organizations.
Keywords: The World Financial and Economic Crisis, Bankruptcy (Insolvency), Systemically Important Financial Organization, Insolvency Prevention Mechanisms (Bankruptcy).
СЕКЦИЯ 8. «ТЕОРИЯ ГОСУДАРСТВА И ПРАВА»
УДК 340
Gribova Evangelina Nikolaevna
Ural State Law University
Russia, Yekaterinburg
e-mail: psachkova@mail. ru
THE PRINCIPLE OF LEGAL CERTAINTY: CONCEPT AND MAIN CHARACTERISTICS
Abstract: the article is devoted to the disclosure of the concept of legal certainty, the problem of finding certainty in law, since the emergence of legal conflicts and legal disputes is often associated with the search for certainty in law. It is advisable to find out whether the principle of legal certainty is a principle of law or is it a non-legal nature
|
|
|
Keywords: principle of law, legal certainty, rule of law, realization of law.
Important for law-making and law enforcement processes are the principles of law, which embody the social nature of law, reflect the laws of its development, and are used in practice as the most General guidelines of behavior.
The principles of law are the fundamental ideas, the guiding principles underlying the law, expressing its essence, and determining its functioning.
Principles permeate all legal norms. They may be enshrined in normative acts, but may, without being enshrined, logically follow from the body of law.
At the present stage, the role of such a principle of law as his certainty (formal definition), which refers to the accurate, complete, and consistent consolidation of the realization of the right (S. S. Alekseev, 1981 – 1982: 77).
The principle of legal certainty is a general principle of law and, together with other fundamental legal foundations such as the rule of law, equality of persons before the law and the court, underlies all legal systems, both international and national.
The principle appears to be relatively new to law and law enforcement practice, but has been known since Ancient Rome, where it was first formulated.
The principle of legal certainty is a General legal fundamental principle that does not have a normative consolidation but formed in science and law enforcement practice and has a decisive importance in the activities of public authorities, the behavior of economic entities. This principle assumes the consistency and completeness of the legal regulation of social relations, clarity, accuracy, consistency, and logical consistency of the norms of laws that provide the possibility of uniform application of the latter in practice.
As noted by L. Wildhaber, " it is through the unity of law enforcement achieves compliance with international and constitutional principles of equality before the law, equal rights of all before the law, equal right of everyone to judicial protection, and only in this way creates legal certainty. The rule of law and effective protection of the rights of all participants of relations are not guaranteed in terms of different understanding and application of legal norms by the courts" (L. Wildhaber, 2001: 5 – 12).
In its basic meaning, the principle of legal certainty, first, assumes the stability of legal regulation and existing legal relations. Legal certainty is necessary in order that the participants of the relevant relations can reasonably foresee the consequences of their behavior, be sure of the immutability of their officially recognized status, acquired rights and obligations. The principle in this aspect aims to provide concerned the ability to accurately predict the results of their actions, give hope that their rights will be protected, the principles of the resolution of the dispute by applying the law will be predictable and foreseeable, will not change from case to case, but will guarantee stability.
Therefore, regulations must be published, clear and accurate retroactive only in exceptional cases and judicial acts should be mandatory, stable (no random revision), as well as executable. Legal certainty is achieved by providing protection to the legitimate interests and expectations of individuals.
|
|
|
The Constitutional Court of the Russian Federation considers that prejudice serves as a means of maintaining the consistency of judicial acts and ensures the operation of the principle of legal certainty.
According to the legal position of the Constitutional Court of the Russian Federation, reflected in paragraph 9 of the Resolution of February 5, 2007 № 2-P, " the General legal principle of legal certainty implies the stability of legal regulation and enforceability of court decisions". In addition, as repeatedly specified the Constitutional Court, in the exercise of the legal regulation must respect the principle of maintaining citizens confidence in law and actions of state providing for legal certainty, reasonable stability of legal regulation, inadmissibility of making arbitrary changes to the existing system of legal norms and predictability of the normative policies, so that the participants of the relevant legal relations could reasonably foresee the consequences of their behavior and be confident in the immutability of their officially recognized status, acquired rights, the effectiveness of their state protection.
Regarding to the real content of the principle of legal certainty, the leading role of the European Court of Human Rights in formulating and interpreting the provisions and hidden meanings of this principle should be recognized. The European Court of Human Rights points out that, following the principle of legal certainty enshrined in the Convention for the protection of rights and fundamental freedoms, court decisions that have entered into force must, in principle, remain unchanged. They can only be changed to correct fundamental errors. The possibility of two points of view on the same subject is not yet grounds for reconsideration of the decision.
As an integral part of the civilized world, Russia builds its legal system in such a way as to be able to optimally interact with other legal systems of other States and international law, as evidenced by its constitutional recognition of universally recognized principles of international law, as well as international treaties of Russia as part of the legal system (article 15 of the Constitution of the Russian Federation). These principles have international legal recognition and approval, first, in the Universal Declaration of Human Rights adopted by the United Nations in 1948, proclaimed the equality of all before the law (article 7); right of everyone to effective judicial protection by a competent, established on the basis of court of law, or the right to access to justice (article 8) and other provisions.
In the domestic theory of law, the existence of the principle of legal certainty found some support, but most authors do not have a common opinion about its essential manifestations.
For example, E. A. Borisova believes that " the content of the principle of legal certainty is to comply with the requirement of stability of final judicial acts" (E. A. Borisova, 2013: 309). V. I. Anishina and T. N. Nazarenko consider this principle as a synonym of the term " formal certainty" (V. I. Anishina, T. N. Nazarenko, 2013: 40). The most widely considered principle of legal certainty is T. M. Pryakhina, who argues that it " is a set of complementary requirements that must meet the text of the law, the rules of law-making and the postulates of law enforcement practice" (T. M. Pryakhin, 2015: 109).
Thus, the principle of legal certainty of law allows a rule to be correctly interpreted when it acts as a basis, a guiding idea of a particular law, industry, or institution.
According to the domestic legal doctrine, the legal certainty of law is understood as the precise designation of circumstances generating legal consequences, the precise definition of the participants and the content of legal relations, prohibitions, and sanctions for their violation.
Consequently, legal certainty ensures the stability of legal relations in the sphere of various social relations, guarantees the right to a fair trial, including the adoption of judicial acts in accordance with the law, establishing a balance of rights and interests of the parties in dispute.
|
|
|
