Pub Date : 2023-09-14DOI: 10.15330/apiclu.63.4.9-4.17
A.A. Albu
The article analyzes the activities of international treaty bodies and the grounds for the emergence of powers in them regarding the interpretation of international treaties. There are legal and factual grounds for the emergence of jurisprudence practice in international control bodies. As for legal grounds, the only such indisputable basis is an international treaty by which the participating states grant the international body the appropriate powers.The actual reasons for the emergence of jurisprudence may be the vagueness of the international treaty itself, the need for the international body to explain in the relevant evaluation report the state’s compliance with its international legal obligations under the international treaty, the reason for the passage of time to give the obligations the character of «living law», as well as factors globalization and regionalization.The question of the use of fictitious or immanent powers is investigated. In the case when an international body departs from a general understanding of its contractual powers, then one speaks of immanent powers. Otherwise, the international body tries not to go beyond the contractual norm, in this case we are talking about fictitious powers. Imaginary powers are considered in a «broad» and «narrow» sense. At the same time, it is difficult to distinguish between implied powers in the «broad» sense and immanent powers. In the science of international law, the attitude towards immanent and imaginary powers of international bodies is not the same. The international legal significance of the jurisprudence of international treaty bodies, which do not have the contractual authority to authentically interpret an international treaty, is related to the customary legal fulfillment of the contractual obligations of states.On the basis of the conducted research, conclusions were made regarding the solution to the problems of implementing the powers of treaty bodies and the influence of jurisprudence on their interpretation of international treaties, which should take place in the plane of researching the imaginary or immanent powers of these bodies themselves.
{"title":"The influence of jurisprudence of international treaty bodies on the interpretation of international treaties","authors":"A.A. Albu","doi":"10.15330/apiclu.63.4.9-4.17","DOIUrl":"https://doi.org/10.15330/apiclu.63.4.9-4.17","url":null,"abstract":"The article analyzes the activities of international treaty bodies and the grounds for the emergence of powers in them regarding the interpretation of international treaties. There are legal and factual grounds for the emergence of jurisprudence practice in international control bodies. As for legal grounds, the only such indisputable basis is an international treaty by which the participating states grant the international body the appropriate powers.The actual reasons for the emergence of jurisprudence may be the vagueness of the international treaty itself, the need for the international body to explain in the relevant evaluation report the state’s compliance with its international legal obligations under the international treaty, the reason for the passage of time to give the obligations the character of «living law», as well as factors globalization and regionalization.The question of the use of fictitious or immanent powers is investigated. In the case when an international body departs from a general understanding of its contractual powers, then one speaks of immanent powers. Otherwise, the international body tries not to go beyond the contractual norm, in this case we are talking about fictitious powers. Imaginary powers are considered in a «broad» and «narrow» sense. At the same time, it is difficult to distinguish between implied powers in the «broad» sense and immanent powers. In the science of international law, the attitude towards immanent and imaginary powers of international bodies is not the same. The international legal significance of the jurisprudence of international treaty bodies, which do not have the contractual authority to authentically interpret an international treaty, is related to the customary legal fulfillment of the contractual obligations of states.On the basis of the conducted research, conclusions were made regarding the solution to the problems of implementing the powers of treaty bodies and the influence of jurisprudence on their interpretation of international treaties, which should take place in the plane of researching the imaginary or immanent powers of these bodies themselves.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"5 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139340029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-14DOI: 10.15330/apiclu.63.1.63-1.81
O.I. Zozulyak, N. Bashuryn
The article is devoted to the theoretical-applied analysis of organizational, legal and management mechanisms for ensuring the educational process in the conditions of martial law in Ukraine. The authors of the article emphasize that Ukraine faced a number of key problems in terms of ensuring the further implementation of the educational process in the conditions of war, in particular: ensuring the safety of the educational process in the conditions of an air alert; the support of the emotional and psychological state of participants of educational process; providing the access to high-speed Internet and gadgets capable of supporting the relevant technical requirements for receiving and transmitting information; implementation of online education in conditions of dispersion of applicants for higher education in different parts of Ukraine and abroad; ensuring the restoration of destroyed and damaged educational institutions.It is indicated that, in general, the regulation and management of security issues during the period of martial law in Ukraine is aimed at ensuring physical, mental and informational security. These are the specified areas that remain the main priorities of the activity of the specialized wartime ministry in particular, through: creation of safe and flexible conditions for sustainable learning; ensuring accessibility and continuity of education regardless the security situation, resumption of scientific research; development and implementation of a complex system of psychological support and accompaniment of participants of the educational process who suffered from military actions.The article emphasizes multi-vector tasks which challenged the authorities and educators at the same time and led to the adoption of management measures and decisions of different nature regarding: reconstruction of shelters, bomb shelters and adjustment of the schedule taking into account the number of people who can be in one shelter at the same time; prompt provision of relocation of the facility to safe areas, taking measures to preserve digital information; filling distance learning systems of universities with high-quality educational materials; organization of online classes; providing access to synchronous and asynchronous online learning.The issue of ensuring information security of participants in the educational process is being investigated. The main emphasis is placed on the unique importance of the educational component, which consists of the systematic training of information security and information culture in secondary and higher educational institutions.
{"title":"Administrative and legal mechanisms for ensuring the safety of the educational process in the conditions of martial law in Ukraine","authors":"O.I. Zozulyak, N. Bashuryn","doi":"10.15330/apiclu.63.1.63-1.81","DOIUrl":"https://doi.org/10.15330/apiclu.63.1.63-1.81","url":null,"abstract":"The article is devoted to the theoretical-applied analysis of organizational, legal and management mechanisms for ensuring the educational process in the conditions of martial law in Ukraine. The authors of the article emphasize that Ukraine faced a number of key problems in terms of ensuring the further implementation of the educational process in the conditions of war, in particular: ensuring the safety of the educational process in the conditions of an air alert; the support of the emotional and psychological state of participants of educational process; providing the access to high-speed Internet and gadgets capable of supporting the relevant technical requirements for receiving and transmitting information; implementation of online education in conditions of dispersion of applicants for higher education in different parts of Ukraine and abroad; ensuring the restoration of destroyed and damaged educational institutions.It is indicated that, in general, the regulation and management of security issues during the period of martial law in Ukraine is aimed at ensuring physical, mental and informational security. These are the specified areas that remain the main priorities of the activity of the specialized wartime ministry in particular, through: creation of safe and flexible conditions for sustainable learning; ensuring accessibility and continuity of education regardless the security situation, resumption of scientific research; development and implementation of a complex system of psychological support and accompaniment of participants of the educational process who suffered from military actions.The article emphasizes multi-vector tasks which challenged the authorities and educators at the same time and led to the adoption of management measures and decisions of different nature regarding: reconstruction of shelters, bomb shelters and adjustment of the schedule taking into account the number of people who can be in one shelter at the same time; prompt provision of relocation of the facility to safe areas, taking measures to preserve digital information; filling distance learning systems of universities with high-quality educational materials; organization of online classes; providing access to synchronous and asynchronous online learning.The issue of ensuring information security of participants in the educational process is being investigated. The main emphasis is placed on the unique importance of the educational component, which consists of the systematic training of information security and information culture in secondary and higher educational institutions.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"42 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139340213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-14DOI: 10.15330/apiclu.63.1.44-1.51
Yu.V. Kerniakevych-Tanasiychuk
The scientific article presents a comparative legal analysis of the evidentiary activity of the court in civil and administrative proceedings. Theoretical approaches in the sciences of civil procedural law and the law of administrative proceedings regarding the definition of the concept of «evidence» are outlined.The circle of subjects of evidence in civil proceedings has been established, which include: participants in the case, procedural representatives and the court, whose functions in evidentiary activity are determined by the needs of justice. As a result of the analysis of the norms of the civil procedural law of Ukraine, a conclusion was made about the passive, as a rule, role of the court in the process of proof, in particular, in the part of collecting evidence in legal proceedings, which is determined by the operation of the principle of adversarial justice in civil proceedings. At the same time, it was emphasized that, in contrast to legal proceedings, when considering cases of a separate proceeding, the court is obliged to take measures to comprehensively, completely and objectively clarify the circumstances of the case, which indicates its «active position in clarifying the circumstances of the case.»Subjects of evidentiary activity in administrative proceedings include the court and persons interested in resolving the case (parties; third parties; representatives of the parties and third parties). Attention is focused on the active role of the court in the process of proof in administrative proceedings (in contrast to civil proceedings), which is determined by the principle of official investigation of all circumstances in the case, which is reflected in the provisions of the Code of Administrative Proceedings of Ukraine: «The court takes measures defined by law, necessary to find out all the circumstances in the case, including the discovery and demand of evidence on its own initiative» and «The court can collect evidence on its own initiative».
{"title":"Evidential activity of the court in civil and administrative proceedings: a comparative legal analysis","authors":"Yu.V. Kerniakevych-Tanasiychuk","doi":"10.15330/apiclu.63.1.44-1.51","DOIUrl":"https://doi.org/10.15330/apiclu.63.1.44-1.51","url":null,"abstract":"The scientific article presents a comparative legal analysis of the evidentiary activity of the court in civil and administrative proceedings. Theoretical approaches in the sciences of civil procedural law and the law of administrative proceedings regarding the definition of the concept of «evidence» are outlined.The circle of subjects of evidence in civil proceedings has been established, which include: participants in the case, procedural representatives and the court, whose functions in evidentiary activity are determined by the needs of justice. As a result of the analysis of the norms of the civil procedural law of Ukraine, a conclusion was made about the passive, as a rule, role of the court in the process of proof, in particular, in the part of collecting evidence in legal proceedings, which is determined by the operation of the principle of adversarial justice in civil proceedings. At the same time, it was emphasized that, in contrast to legal proceedings, when considering cases of a separate proceeding, the court is obliged to take measures to comprehensively, completely and objectively clarify the circumstances of the case, which indicates its «active position in clarifying the circumstances of the case.»Subjects of evidentiary activity in administrative proceedings include the court and persons interested in resolving the case (parties; third parties; representatives of the parties and third parties). Attention is focused on the active role of the court in the process of proof in administrative proceedings (in contrast to civil proceedings), which is determined by the principle of official investigation of all circumstances in the case, which is reflected in the provisions of the Code of Administrative Proceedings of Ukraine: «The court takes measures defined by law, necessary to find out all the circumstances in the case, including the discovery and demand of evidence on its own initiative» and «The court can collect evidence on its own initiative».","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"115 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139339996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-14DOI: 10.15330/apiclu.63.2.1-2.18
M.V. Lohvinova, M.M. Ostapiak
The article is devoted to the peculiarities of the implementation of the right to apply to the court for the protection of family rights and interests of each participant in family relations.National procedural legislation determines that the right to judicial protection of family rights is realized by applying to court and administering justice according to the rules of civil procedure in legal proceedings (general or simplified legal proceedings), in injunctive and separate proceedings. At the same time, the authors draw attention to the legislative possibility to resolve identical family disputes both in the order of legal proceedings and injunctive proceedings. Legislators of EU member states regulate the issue of consideration of family disputes in civil proceedings in various ways: with the possibility of applying a simplified procedure; creation of specialized courts that consider family disputes; consideration of family disputes only according to the ordinary procedure.In particular, the legislator’s classification of cases concerning the collection of alimony, its increase, the payment of additional expenses for the child, the collection of a penalty (penalty) for late payment of alimony, the indexation of alimony, the change in the method of its collection, if such requirements are not related to establishing or disputing paternity, is ambiguous. (maternity) to the category of insignificant. After all, such disputes are of great importance both for the parties (who are trying to protect personal rights related to paternity/maternity) and the court (for which each case is unique and requires careful research). It is the court that is entrusted with the duty of determining the procedure for consideration of family disputes, which actively applies discretionary powers within the framework of simplified legal proceedings, despite the requests of the parties and their desire to use as many means of protection as possible.Quick resolution of family disputes by the court is often necessary to effectively ensure the rights and freedoms of the participants in family relations. However, it is necessary to guarantee the real observance of the basic principles of the judiciary for the resolution of relevant disputes and to minimize the presence of evaluation categories in the Civil Procedure Code of Ukraine regarding the consideration of family cases
{"title":"Consideration of family cases by the court according to the rules of simplified litigation: a review of judicial practice and trends of change","authors":"M.V. Lohvinova, M.M. Ostapiak","doi":"10.15330/apiclu.63.2.1-2.18","DOIUrl":"https://doi.org/10.15330/apiclu.63.2.1-2.18","url":null,"abstract":"The article is devoted to the peculiarities of the implementation of the right to apply to the court for the protection of family rights and interests of each participant in family relations.National procedural legislation determines that the right to judicial protection of family rights is realized by applying to court and administering justice according to the rules of civil procedure in legal proceedings (general or simplified legal proceedings), in injunctive and separate proceedings. At the same time, the authors draw attention to the legislative possibility to resolve identical family disputes both in the order of legal proceedings and injunctive proceedings. Legislators of EU member states regulate the issue of consideration of family disputes in civil proceedings in various ways: with the possibility of applying a simplified procedure; creation of specialized courts that consider family disputes; consideration of family disputes only according to the ordinary procedure.In particular, the legislator’s classification of cases concerning the collection of alimony, its increase, the payment of additional expenses for the child, the collection of a penalty (penalty) for late payment of alimony, the indexation of alimony, the change in the method of its collection, if such requirements are not related to establishing or disputing paternity, is ambiguous. (maternity) to the category of insignificant. After all, such disputes are of great importance both for the parties (who are trying to protect personal rights related to paternity/maternity) and the court (for which each case is unique and requires careful research). It is the court that is entrusted with the duty of determining the procedure for consideration of family disputes, which actively applies discretionary powers within the framework of simplified legal proceedings, despite the requests of the parties and their desire to use as many means of protection as possible.Quick resolution of family disputes by the court is often necessary to effectively ensure the rights and freedoms of the participants in family relations. However, it is necessary to guarantee the real observance of the basic principles of the judiciary for the resolution of relevant disputes and to minimize the presence of evaluation categories in the Civil Procedure Code of Ukraine regarding the consideration of family cases","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"34 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139340249","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-14DOI: 10.15330/apiclu.63.4.1-4.8
O.R. Kovalyshyn
The article is devoted to simplified proceedings and electronic order proceedings in Polish law. It is noted that the role of expedited (simplified) proceedings in the practice of civil and commercial justice is quite significant, as evidenced not only by the number of cases considered in expedited proceedings, but also by the number of decisions rendered in the appropriate manner.The author notes that in 2019 there were quite significant changes, the content of which is reduced to the expansion of the subject catalog of cases that are considered in the order of simplified proceedings. Before that, this procedure was intended exclusively for lawsuits arising from binding legal relations of a contractual nature. Civil cases arising from non-contractual obligations were considered on a general basis.It is emphasized that in economic cases, the provisions on simplified proceedings are applied to the extent that they do not contradict the provisions of the section on the peculiarities of proceedings in economic cases. What is more, the relevant clause is established by the legislator specifically in relation to national simplified procedures and does not apply to supranational ones (European procedure for small claims, European payment order). Thus, a differentiated approach was applied.It is noted that the introduction of electronic court proceedings in the Polish civil process was a significant step forward in the digitalization of the entire judicial system, and the regulatory documents regarding it, as confirmed by practice, set a new legal and IT standard for further digitalization.It can be concluded that electronic injunctive proceedings are a special type of «ordinary» injunctive proceedings. The differences arise not from the purposes and functions of this proceeding, but from formal reasons that are a consequence of the accepted methods of communication between the parties with the court and the executive service body, as well as the delivery of orders and court decisions in electronic form and the archiving of case materials in electronic form.
{"title":"Simplified proceedings in the civil procedure of Poland","authors":"O.R. Kovalyshyn","doi":"10.15330/apiclu.63.4.1-4.8","DOIUrl":"https://doi.org/10.15330/apiclu.63.4.1-4.8","url":null,"abstract":"The article is devoted to simplified proceedings and electronic order proceedings in Polish law. It is noted that the role of expedited (simplified) proceedings in the practice of civil and commercial justice is quite significant, as evidenced not only by the number of cases considered in expedited proceedings, but also by the number of decisions rendered in the appropriate manner.The author notes that in 2019 there were quite significant changes, the content of which is reduced to the expansion of the subject catalog of cases that are considered in the order of simplified proceedings. Before that, this procedure was intended exclusively for lawsuits arising from binding legal relations of a contractual nature. Civil cases arising from non-contractual obligations were considered on a general basis.It is emphasized that in economic cases, the provisions on simplified proceedings are applied to the extent that they do not contradict the provisions of the section on the peculiarities of proceedings in economic cases. What is more, the relevant clause is established by the legislator specifically in relation to national simplified procedures and does not apply to supranational ones (European procedure for small claims, European payment order). Thus, a differentiated approach was applied.It is noted that the introduction of electronic court proceedings in the Polish civil process was a significant step forward in the digitalization of the entire judicial system, and the regulatory documents regarding it, as confirmed by practice, set a new legal and IT standard for further digitalization.It can be concluded that electronic injunctive proceedings are a special type of «ordinary» injunctive proceedings. The differences arise not from the purposes and functions of this proceeding, but from formal reasons that are a consequence of the accepted methods of communication between the parties with the court and the executive service body, as well as the delivery of orders and court decisions in electronic form and the archiving of case materials in electronic form.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"119 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139340242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-04DOI: 10.15330/apiclu.62.1.36-1.52
O.A. Borshchevsky
The issue of taxation of advocacy is undergoing a new stage of discussion and debate. Today, the taxation of a lawyer’s income depends on whether the lawyer works individually, as a self-employed person, or as an employee under an employment contract in a law office or association.Working independently, a lawyer pays tax and other mandatory payments in the total amount of about 42% (personal income tax 18%, military levy 1.5%, single social contribution 22%), while persons who are on the simplified system taxation, pay a single tax (for example 5%) and a social contribution.Laws (bill) No. 2200, No. 2200-1, which provide for the right of lawyers, as self-employed persons, to be on the simplified taxation system for the main type of their activity (activity in the field of law) introduce novelty in this matter.The issue of the lawyer’s right to choose the taxation system, in particular, the simplified taxation system, which is applied to individual entrepreneurs, remains debatable in the context of guarantees of the stability and independence of the lawyer’s activity, provided for by the interests of the state and the lawyer. The importance of transparency of tax relations and the validity of simplifying state control over tax assessment and payment are discussed.At the theoretical level, the effectiveness and efficiency of tax payment and the increase of budget revenues from advocacy activities in the case of the legislative granting of the right to a simplified taxation system to an attorney are ascertained. It is indicated that such an approach corresponds to the principle of fairness and impartiality to the lawyer’s activity in terms of its taxation.The article reveals the problem of discrimination of self-employed persons and entrepreneurs in the field of taxation. The material presents an analysis of draft laws and their rationale. Tendencies to changes in the legal regulation of tax relations of self-employed persons are outlined. A comparison of the features of advocacy and entrepreneurial activity was carried out. Attention is focused on the issue of taxation of the lawyer’s income. The regulatory and legal regulation of tax collection from advocacy activities is characterized. The judicial practice and legal positions of the Supreme Court have been elaborated and their influence on the formation of the object of taxation from advocacy activities has been outlined. Arguments were searched for the need to legislate for the lawyer the right to choose between the general and simplified taxation systems. The conclusion is made about the need to regulate the lawyer’s right to choose the taxation system, which is a constituent element of guaranteeing the lawyer’s independence.
{"title":"Taxation of the lawyer’s income: trends to change the legal regulation","authors":"O.A. Borshchevsky","doi":"10.15330/apiclu.62.1.36-1.52","DOIUrl":"https://doi.org/10.15330/apiclu.62.1.36-1.52","url":null,"abstract":"The issue of taxation of advocacy is undergoing a new stage of discussion and debate. Today, the taxation of a lawyer’s income depends on whether the lawyer works individually, as a self-employed person, or as an employee under an employment contract in a law office or association.Working independently, a lawyer pays tax and other mandatory payments in the total amount of about 42% (personal income tax 18%, military levy 1.5%, single social contribution 22%), while persons who are on the simplified system taxation, pay a single tax (for example 5%) and a social contribution.Laws (bill) No. 2200, No. 2200-1, which provide for the right of lawyers, as self-employed persons, to be on the simplified taxation system for the main type of their activity (activity in the field of law) introduce novelty in this matter.The issue of the lawyer’s right to choose the taxation system, in particular, the simplified taxation system, which is applied to individual entrepreneurs, remains debatable in the context of guarantees of the stability and independence of the lawyer’s activity, provided for by the interests of the state and the lawyer. The importance of transparency of tax relations and the validity of simplifying state control over tax assessment and payment are discussed.At the theoretical level, the effectiveness and efficiency of tax payment and the increase of budget revenues from advocacy activities in the case of the legislative granting of the right to a simplified taxation system to an attorney are ascertained. It is indicated that such an approach corresponds to the principle of fairness and impartiality to the lawyer’s activity in terms of its taxation.The article reveals the problem of discrimination of self-employed persons and entrepreneurs in the field of taxation. The material presents an analysis of draft laws and their rationale. Tendencies to changes in the legal regulation of tax relations of self-employed persons are outlined. A comparison of the features of advocacy and entrepreneurial activity was carried out. Attention is focused on the issue of taxation of the lawyer’s income. The regulatory and legal regulation of tax collection from advocacy activities is characterized. The judicial practice and legal positions of the Supreme Court have been elaborated and their influence on the formation of the object of taxation from advocacy activities has been outlined. Arguments were searched for the need to legislate for the lawyer the right to choose between the general and simplified taxation systems. The conclusion is made about the need to regulate the lawyer’s right to choose the taxation system, which is a constituent element of guaranteeing the lawyer’s independence.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"381 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139363174","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-04DOI: 10.15330/apiclu.62.2.11-2.24
K.Yu. Ivanova
The article analyzes the process of establishing a unitary system of patent protection in the European Union as an alternative to national and regional systems and its importance for enhancing the innovation potential and economic development of the EU. It examines the preconditions for the transition from national patents to regional (and subsequently unitary) patents, which are based on the intention of the EU Member States to overcome the territorial principle of patent rights by extending the patent owner’s exclusive rights beyond the territorial borders of one state.It is noted that the transformation of the economy into an innovative one, in which a key role is assigned to intellectual property rights (as a precondition for innovation), has actualized the issue of effective intellectual property legal protection, in particular, concerning patent rights. Since 1997, the European Commission has been highlighting the importance of patents as one of the tools available for protecting innovation and the need to reform the European patent system to increase Europe’s innovation potential and competitiveness. Subsequent decisions of the EU Council were taken to fulfill this task, resulting in the introduction of a unitary system, which includes the European Patent with Unitary Effect (the Unitary Patent) and the Unified Patent Court, as of June 1, 2023. As a result, inventors can obtain unitary patent protection based on the Unitary Patent in all EU Member States participating in the enhanced cooperation mechanism.It is concluded that the unitary patent protection system extends the territoriality principle beyond the national borders of the State within the EU borders, but does not destroy the basic principles of intellectual property rights. In contrast, the article examines the US case law, which demonstrates its own approaches to understanding the principle of territoriality and the presumption against extraterritoriality of patent rights, allowing in certain cases the US patent holder to extend its monopoly to foreign markets.
{"title":"Unitary system of patent protection as an element of innovation policy of the European Union","authors":"K.Yu. Ivanova","doi":"10.15330/apiclu.62.2.11-2.24","DOIUrl":"https://doi.org/10.15330/apiclu.62.2.11-2.24","url":null,"abstract":"The article analyzes the process of establishing a unitary system of patent protection in the European Union as an alternative to national and regional systems and its importance for enhancing the innovation potential and economic development of the EU. It examines the preconditions for the transition from national patents to regional (and subsequently unitary) patents, which are based on the intention of the EU Member States to overcome the territorial principle of patent rights by extending the patent owner’s exclusive rights beyond the territorial borders of one state.It is noted that the transformation of the economy into an innovative one, in which a key role is assigned to intellectual property rights (as a precondition for innovation), has actualized the issue of effective intellectual property legal protection, in particular, concerning patent rights. Since 1997, the European Commission has been highlighting the importance of patents as one of the tools available for protecting innovation and the need to reform the European patent system to increase Europe’s innovation potential and competitiveness. Subsequent decisions of the EU Council were taken to fulfill this task, resulting in the introduction of a unitary system, which includes the European Patent with Unitary Effect (the Unitary Patent) and the Unified Patent Court, as of June 1, 2023. As a result, inventors can obtain unitary patent protection based on the Unitary Patent in all EU Member States participating in the enhanced cooperation mechanism.It is concluded that the unitary patent protection system extends the territoriality principle beyond the national borders of the State within the EU borders, but does not destroy the basic principles of intellectual property rights. In contrast, the article examines the US case law, which demonstrates its own approaches to understanding the principle of territoriality and the presumption against extraterritoriality of patent rights, allowing in certain cases the US patent holder to extend its monopoly to foreign markets.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"33 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139362894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-04DOI: 10.15330/apiclu.62.1.1-1.13
R.V. Terletskyi
This article investigates the issue of the efficiency of the Law of Ukraine 2662-VIII «On the Specification of Church Names with Governing Centers Located in an Aggressor Country» in wartime conditions.It emphasizes the significant role played by laws concerning freedom of religion as a subjective legal right and religious organizations as instruments and systems for satisfying religious needs following Ukraine’s declaration of independence. Furthermore, it analyzes the main laws, subsidiary acts, and decrees that ensure the right to freedom of religion in Ukraine.An analysis is conducted on the effectiveness of Law No. 2662-VIII «On Amending Article 12 of the Law of Ukraine ‘On Freedom of Conscience and Religious Organizations’» enacted on December 20, 2018, as well as the mechanisms for implementing this law in practice through executive government bodies. The risks of interpreting this law in the context of human rights violations and the potential for creating informational grounds for propagating «suppression of faith» within the Russian media space are noted. It is emphasized that Law No. 2662-VIII solely mandates the correction of the name of a religious organization and does not alter the philosophy of said organization regarding national security and state-building.The article clarifies the concept of the efficiency of legislative innovations at the time of their adoption, indicating that such efficiency is determined dynamically through socio-historical positive changes.Furthermore, it underscores the necessity of conducting teleological analysis, analysis of social needs, representativeness, and other factors to define the comprehensive goals set by laws or acts before their implementation in the legal framework of the country.The need is identified to develop a legislative proposal for the re-registration of all religious organizations, without exception, within a specified timeframe. Additionally, there is a call to expand the authority of the executive branch in the establishment of religious associations and to strengthen the oversight conducted by law enforcement agencies over their activities.
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Pub Date : 2023-07-04DOI: 10.15330/apiclu.62.1.14-1.24
O.R. Riznyk
The article clarifies the meaning, scope and relationship of the concepts of «will» and «freedom», as well as analyzes the specifics of their criminal legal use. In particular, the cases of the use of these terms in the text of the current Criminal Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine) were investigated, primarily to denote such an element of the composition of a criminal offense as an object. In the part related to this topic, the provisions of the draft of the new CC, which is being developed by the Working group on the development of criminal law, formed within the framework of the Commission on legal reform under the President of Ukraine, are also analyzed.It has been established that in the current criminal law of Ukraine, the concept of «will» is used in different meanings: 1) as a synonym for personal freedom, freedom of movement and free choice of place of stay and 2) as one of the functions of the human psyche, which consists primarily of self-control, control by their actions and conscious regulation of their behavior.In particular, in the first sense, the term «will» is used for:- designation of such basic types of punishment as «restriction of liberty», «deprivation of liberty», «life imprisonment» (the vast majority of cases of use of this concept in the text of the current criminal law);- indications of the object of the criminal offense (in the title of Chapter III of the Special Part of the Criminal Code of Ukraine - «Criminal offenses against the will, honor and dignity of a person»);- a description of a socially dangerous act, as a sign of the objective side of a criminal offense (Articles 146, 146-1, 346, 444 of the Criminal Code of Ukraine).In the second sense, the analyzed concept is used in the criminal law only in four articles (Articles 127, 168, 289, 314 of the Criminal Code of Ukraine) - to indicate actions that contradict the will of the victim.A number of changes to the Criminal Code of Ukraine were proposed in order to eliminate such misunderstandings, in particular, the proposal to «rename» the relevant types of criminal punishments was supported, and the need to replace the concept of «will» with the concept of «personal freedom» in those cases when it is used to describe the object and the objective side of criminal offences.
{"title":"Will and freedom as objects of criminal offenses","authors":"O.R. Riznyk","doi":"10.15330/apiclu.62.1.14-1.24","DOIUrl":"https://doi.org/10.15330/apiclu.62.1.14-1.24","url":null,"abstract":"The article clarifies the meaning, scope and relationship of the concepts of «will» and «freedom», as well as analyzes the specifics of their criminal legal use. In particular, the cases of the use of these terms in the text of the current Criminal Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine) were investigated, primarily to denote such an element of the composition of a criminal offense as an object. In the part related to this topic, the provisions of the draft of the new CC, which is being developed by the Working group on the development of criminal law, formed within the framework of the Commission on legal reform under the President of Ukraine, are also analyzed.It has been established that in the current criminal law of Ukraine, the concept of «will» is used in different meanings: 1) as a synonym for personal freedom, freedom of movement and free choice of place of stay and 2) as one of the functions of the human psyche, which consists primarily of self-control, control by their actions and conscious regulation of their behavior.In particular, in the first sense, the term «will» is used for:- designation of such basic types of punishment as «restriction of liberty», «deprivation of liberty», «life imprisonment» (the vast majority of cases of use of this concept in the text of the current criminal law);- indications of the object of the criminal offense (in the title of Chapter III of the Special Part of the Criminal Code of Ukraine - «Criminal offenses against the will, honor and dignity of a person»);- a description of a socially dangerous act, as a sign of the objective side of a criminal offense (Articles 146, 146-1, 346, 444 of the Criminal Code of Ukraine).In the second sense, the analyzed concept is used in the criminal law only in four articles (Articles 127, 168, 289, 314 of the Criminal Code of Ukraine) - to indicate actions that contradict the will of the victim.A number of changes to the Criminal Code of Ukraine were proposed in order to eliminate such misunderstandings, in particular, the proposal to «rename» the relevant types of criminal punishments was supported, and the need to replace the concept of «will» with the concept of «personal freedom» in those cases when it is used to describe the object and the objective side of criminal offences.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139363375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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