Баллы / Text: Ст 1-8

Judicial branch in a system of separation of state power.

Crazy_Book_Lady 06.11.17 в 19:15

Branching the state power has a theoretical basis. The theory of branching (separation of powers) finally formed in the seventeenth century, in the era of world bourgeois revolutions, as a reaction to the absolutism of the supreme power of the monarch. The founder of this theory was J. Locke ( famous educator of England). His ideas were: the idea of ​​establishing restrictions on the path of power, the idea of ​​its division in the state, the activities of the state based on the law. The work of a French philosopher S.-L. Montesquieu is considered to be the classic power separation theory. It was the starting point to separating a new branch of power - judicial branch. Sh. - L. Montesquieu was the first person who described why judicial power should be independent. He pointed out the main task of the court - the administration of justice, and said, that the law is obligatory both for the judicial and executive branches of power activity. For the first time, the theory of separation of powers, based on the system of checks and balances of its various branches, was widely embodied in the US Constitution in 1787. Later, this principle was reflected in majority of modern constitutions.

Crazy_Book_Lady 08.11.17 в 17:29

According to part 1 of Article 1 of the Law of Ukraine "On the Judiciary and Status of Judges" dated 02.06.2016, No. 1402-VII, judicial power in Ukraine, in accordance with the constitutional principles of separation of powers, is exercised by independent and impartial courts established by law. So, it is a specific branch of power. Exactly because of that we can define the judicial power as a holistic system of special public authorities, which wield power established by law. This power is aimed at establishing the truth, restoring justice, considering disputes and punishing the guilty. Decisions of the judicial power are obligatory.

Crazy_Book_Lady 10.11.17 в 14:46

Judicial power is a specific branch of common state power, which has its own competence. This competence includes consideration of legal metters, which have legal consequences and is incarnated only by constitutional bodies ( courts) in an established order.

Crazy_Book_Lady 07.11.17 в 06:09

The distinguishing signs of judicial power complete its legal state characteristics with individual properties, which are inherent to judicial power only. That allows to distinct judicial power from legislative or executive power.
These signs are:
(a) special type of legal relations;
(b) exclusive competence;
(c) individual system of bodies;
(d) specific methods and forms of influencing public relations.
Functions of judicial power - direction and type of administrating justice by courts ( the Constitutional Court of Ukraine and courts of Common Jurisdiction) with the aim of solving cases, in the order established by the Constitution of Ukraine and other laws or normative legal acts of Ukraine.

Crazy_Book_Lady 10.11.17 в 15:32

The system of judicial power functions consists of:

Crazy_Book_Lady 06.11.17 в 19:17

1. Consideration and resolution of legal conflicts, which emerge in public life between phisical persons, between phisical persons and legal entities (organisations), or between legal entities because of the violation of their rights and legitimate interests which are provided by criminal, civil, business, administrative, international, environmental, family, constitutional, housing, tax law, etc.

Crazy_Book_Lady 07.11.17 в 07:58

Persons may file a request to the court for considering a legal conflict for the reasons either of illegal action (or inactivity) or decision of a state body, a local self-government body, legal entities or phisical persons, that:
(a) violate rights of these persons; (b) prevent free exercising of their rights; (с) impose some obligations, which are unintended by law (or other legal documents) on persons; (d) prosecute persons unreasonably.

Crazy_Book_Lady 07.11.17 в 08:58

These points compose a subject of trial. Such legal conflicts are resoluted at a court session in the order established by the Code of Procedure. After the court session, action or inactivity can be admitted illegal. The court can also oblige one side of a trial to meet the requirements of another side (to stop illegal action or inactivity; to cancel illegal court decision etc.) and to start actions which will restore violated rights. The court determines the type and measure of responsibility of a guilty side of trial, and it also determines the amount of compensation for losses, that were inflicted by illegal action or inactivity, or by an illegal court desicion.
In case of admitting such action ( inactivity) or court desicion lawful, the court refuses to satisfy a plaintiff's complaint.

Crazy_Book_Lady 07.11.17 в 11:19

The meaning of this function is that only judicial organs and judges ( as they are persons who wield a judicial power) have authority to make legal assessment of legal relationships, which arise in the field of application of the law. The court ( the judge) is competent to decide if law was violated, to make a legal assessment of this violation, to determine the amount of people who are guilty in this violation, to determine the type of responsibility and to decide how the violated right can be restored. By doing such work the court administers justice.
So, the administration of justice is a subject of judicial activity.

Crazy_Book_Lady 08.11.17 в 15:54

2. The exercising a supervisory power over the execution of law in the event of restriction of constitutional rights and freedoms of persons in criminal and civil legal proceedings.

Crazy_Book_Lady 08.11.17 в 16:04

All actions of authorities of pre-trial investigation and operatively-search organs in criminal violations which relate to constitutional laws, can be implemented only with permission of the court (investigating judge). For example, such actions as court call and taking person to the court by using forces; imposing a fine; temporary restriction on the use of social rights; removal from office; temporary access to documents and belongings; temporary seizure of property; arrest of aproperty; detainmеnt of a person - can be done only with permission of the court or investigating judge.

Crazy_Book_Lady 11.11.17 в 10:41

Apart from that, the court considers complaints of court desicions, actions or inactivity of prosecutor and investigator. But filing a compleint while pre-trial investigation, doesn't stop judjement execution or actions of investigator and prosecutor. The complaints of courts decision's, actions or inactivity while pre-trial investigation are considered by investigative judje of local court not being more than seventy-two hours after this complain was maid( apart from complains of closing a case, which are considered no longer than five days) in accordance with the Code of Criminal Procedure.

Crazy_Book_Lady 11.11.17 в 18:10

In the competence of the court there are points about limiting rights and freedoms of a person in cases which are not associated with criminal proceedings, - when the person is considered to be totally disabled or limited of capacity. The court only can make decision about persons disability because of mental illness, when this person doesn't understand its own actions.

Crazy_Book_Lady 13.11.17 в 19:25

In the competence of the court there is also a limitation of the individuals capacity because of taking alcohol or drugs which makes its family stay in poor financial situation.

Crazy_Book_Lady 13.11.17 в 19:10

A person that has mental illness or a person, whos illness is dangerous to the other people is forsed into the health care facility.

Crazy_Book_Lady 13.11.17 в 19:35

3. Certification of legal facts attributed to the jurisdiction of the court. Along with other bodies (for example, a notary), the court performs the function of establishing the legal facts which arise, change or termination of personal or property rights of phisical persons . In the exclusive jurisdiction of the court there is ano obligation to establish such legal facts as:

Crazy_Book_Lady 15.11.17 в 14:17

1) family relationships between phisical persons;

Crazy_Book_Lady 10.11.17 в 15:34

2) detention of a phisical person;

Crazy_Book_Lady 10.11.17 в 15:35

3) the fact of person is disabled, if it is needed for the purpose of granting a pension or receiving assistance on obligatory state insurance;

Crazy_Book_Lady 10.11.17 в 15:40

4) registration of marriage, dissolution of marriage, adoption/legimation;

Crazy_Book_Lady 10.11.17 в 15:43

5) man and woman living in a free marriage;

Crazy_Book_Lady 10.11.17 в 15:46

6) when the documents of a person, whos surname, name, patronymic, place and date of birth, which are indicated in the document, do not coincide with the name, patronymic, surname, place and time of birth, which are indicated in the birth certificate or in the passport;

Crazy_Book_Lady 15.11.17 в 14:20

7) birth of a person in certain time in case of an impossibility of registration the fact of birth by civil regestry office;

Crazy_Book_Lady 14.11.17 в 16:05

8) death of a person in certain time in case of an impossibility of regeneration the fact of death by civil regestry office;

Crazy_Book_Lady 14.11.17 в 16:07

9) death of a person who have gone missing in the circumstances which were threating persons life, or give reasons to think this person is dead because of an anthropogenic or natural accident.

Crazy_Book_Lady 14.11.17 в 16:11

Judicialy there can be found other facts оn which depends the emergency, change or termination of personal or property rights of phisical persons, in case there are no other orders of establishing them.

Crazy_Book_Lady 11.11.17 в 10:53

Consideration of such questions is made by courts in such type of civil judgement as proceeding.

Crazy_Book_Lady 14.11.17 в 16:40

4. Interpretation of the rule of law. The activity of the court is always related to the law-enforcement activity, in which the judge interprets the legal norm. In each of its decisions the court carries out an individual interpretation of the legal norm, explains to the sides of a trial what and how it is necessary to do in order to avoid violation of legal norms, or renstore the violated right, if such violation has already occurred. The court's decision, although it is an act of individual interpretation, which is obligatory only for the certain persons and the certain situation which has become the subject of judicial review, is obligatory for execution by all the entities whose activity is affected by this decision. At the same time, the Supreme Court of Ukraine and the Constitutional Court of Ukraine make decisions that are binding on all law enforcers. The decisions of these courts are sources of law, no matter who made recourse to the court. In such decisions both the Supreme Court of Ukraine and the Constitutional Court of Ukraine make an official interpretation of the law.

Crazy_Book_Lady 15.11.17 в 14:22

The functions of judicial power are controlling and restoring. They are effective and systematic. They express:
the meaning of judicial power in general;
normative meaning of its content and forms of implementation;
the system of realisation, etc.

Crazy_Book_Lady 14.11.17 в 16:53

The system of principles of judicial power

Crazy_Book_Lady 10.11.17 в 15:48

Principles of judicial power are general legal provisions which reflect the functional purpose of judicial power in society, promote the performance of tasks, describe the structure of judicial system and the process of judjement. Principles of judicial power are one of the types of principles of the law. Principles of judicial power describe the organization and the activity of public authorities. They аre fixed in the Constitution or other normative acts.

Crazy_Book_Lady 14.11.17 в 20:56

The purpose of the principles of judicial power lies in the fact that they
(a) are contained in the most general rules that have a wide range of actions; (b) are the foundation for the construction of the judicial system and the procedure of considering cases by the court, they establish or regulate the most important legal relationships that are formed in the process of organization and activity of the judicial power;
(c) show and fix thе legality of judicial power;
(d) are the standard of legality and fairness of a court decisions, since the violation of legality and fairness is the basis for its abolition in higher courts.

Crazy_Book_Lady 14.11.17 в 21:12

Being unified, the system of the principles of the judicial power is divided into three subsystems: the institutional (general principles of the judicial power), the functional (principles of the administration of justice) and organizational (principles of the organization of the judicial system, or judicial principles). All of them, although they are interconnected, but form independent subsystems, each of which differs in field of use and purpose.

Crazy_Book_Lady 15.11.17 в 14:21

Institutional principles are the most general caracteristic, which reflect the general orientation of the judicial system and the legal process. These provisions are the criterion for the value of the judiciаl power for subjects of law, fix its place in the system of separation of powers.

Crazy_Book_Lady 15.11.17 в 08:10

Organizational (judicial) principles apply to relations arising from the organization of the judicial system, the structure of its organs, and the status of judges in connection with organizational relations.

Crazy_Book_Lady 15.11.17 в 07:54

The functional principles of the judiciary form the main features of judicial proceedings, namely: competition of the sides of trial, transparency, reasonable time of court proceedings, state language of a trial, collective and individual trial, the right of people to take part in administrating justice, guarantee the right of a person to get legal assistance, compulsory and motivation of court decisions.

Crazy_Book_Lady 14.11.17 в 21:32

The institutional principles of the judicial power include: parity, justice, rule of law and lawfulness, completeness and exclusivity of the judiciary, accessibility, independence, impartiality and transparency. These imperative requirements are interconnected and interdependent, they find their normative consolidation at the constitutional and legislative levels.

Crazy_Book_Lady 15.11.17 в 14:20

The organizational (judicial) principles of the judicial power include the basic principles of the structure of the judicial system and the status of judges (as persons who wield a judicial power ), namely: (a) the unity of the judicial system and the status of judges; (b) territoriality, specialization and institution on which the judicial system is based; (c) independence, immutability and immunity of judges, integrity of judges.

Crazy_Book_Lady 14.11.17 в 21:42

The functional principles of the judiciary, which form the basic principles of the administration of justice, include: (a) the state language of a trial; (b) transparency and openness of a trial; (c) collective and individual consideration of court cases; (d) the right of people to take part in the exercising judicial power; (e) the administration of justice on the principles of equality of the sides of a trial; (f) competition; (g) the presumption of innocence; (h) guarantee of the right to get legal assistance; (i) the right to appeal a court decision; (j) the compulsory of the court decision.

Crazy_Book_Lady 14.11.17 в 21:25