Pub Date : 2019-08-06DOI: 10.15330/apiclu.51.39-49
I. Myronenko
This article is devoted to some questions of abuse of subjective law. The problem of abuse of law remains relevant to the theory and practice of legal regulation; it requires scientific and theoretical elaboration and practical solution in legal doctrine and legislation. Today, under the abuse of law, it is understood to mean the unfair exercise of a right that causes harm to other subjects. In the sphere of property relations, the abuse of the right mainly manifests itself as the creation of obstacles for other persons to use or dispose of their property. Such obstacles are eliminated with the help of a negative claim, provides for the requirement to terminate the relevant actions. There is a principle common to all legal systems, according to which the owner is obliged to avoid such use of his property that causes unjustified harm to third parties or to the whole society. In Ukrainian law, it acquired its formal consolidation in the form of the provisions of part 3 of art. 13 of the Civil Codex of Ukraine. Today, however, right doctrine has different concepts about the content and form of abuse of law. The most controversial question remains to what extent the exercise of a subjective right that causes harm to others is legitimate. To solve it, it is proposed to introduce additional criteria for qualification of actions of a person as abuse of law in the field of land property relations. As such criteria it is proposed to use existing standards, local customs, local conditions, purpose of property, as well as the need to ensure the balance (balance) of neighboring interests.
{"title":"Abuse Of Subjective Property Law As A Violation Of Its Limits: Content And Legal Consequences","authors":"I. Myronenko","doi":"10.15330/apiclu.51.39-49","DOIUrl":"https://doi.org/10.15330/apiclu.51.39-49","url":null,"abstract":"This article is devoted to some questions of abuse of subjective law. The problem of abuse of law remains relevant to the theory and practice of legal regulation; it requires scientific and theoretical elaboration and practical solution in legal doctrine and legislation. Today, under the abuse of law, it is understood to mean the unfair exercise of a right that causes harm to other subjects. In the sphere of property relations, the abuse of the right mainly manifests itself as the creation of obstacles for other persons to use or dispose of their property. Such obstacles are eliminated with the help of a negative claim, provides for the requirement to terminate the relevant actions. There is a principle common to all legal systems, according to which the owner is obliged to avoid such use of his property that causes unjustified harm to third parties or to the whole society. In Ukrainian law, it acquired its formal consolidation in the form of the provisions of part 3 of art. 13 of the Civil Codex of Ukraine. Today, however, right doctrine has different concepts about the content and form of abuse of law. The most controversial question remains to what extent the exercise of a subjective right that causes harm to others is legitimate. To solve it, it is proposed to introduce additional criteria for qualification of actions of a person as abuse of law in the field of land property relations. As such criteria it is proposed to use existing standards, local customs, local conditions, purpose of property, as well as the need to ensure the balance (balance) of neighboring interests.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123377493","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 : 2019-08-06DOI: 10.15330/apiclu.51.22-33
O. I. Zozuliak
The article is devoted to the theoretical and legal analysis of issues related to the range of problems connected with development of such legal model as ‘nonentrepreneurial legal entity’. In the scientific work the author makes an analysis of those concepts which are submitted by the leading Ukrainian scholars and concern the formation of civil-law terminology in general and that is applied to the nonentrepreneurial legal entities, in particular. The author has concluded that it is expedient to apply the set of criteria during formation of the non-entrepreneurial legal entity. The article gives the definition of non-entrepreneurial legal entity in the narrow and broad meanings. It is proved that a non-business entity should be singled out as a separate category according to the non-distribution of profit (income) rather than to the specifics of its business activity. The author demonstrates the feasibility to change classification criteria and levels while classifying the legal entities and on the mentioned ground she has singled out: 1) procedure for establishment of the legal entity; 2) structure of the legal entity as a criterion of the second classification level; 3) specific character of the profit distribution as a criterion of the third level of classification. It is based on the argument that non-business entities are an independent group of the legal entities, which is divided into subgroups: the non-business entities of corporate type and the non-business entities of unitary type. Each subgroup of the non-business legal entity distinguishes several legal forms within of which specific types of non-business entities are allocated. The author presents one’s own definition of the non-entrepreneurial legal entity, as a legal entity of public or private law, whether of corporate or unitary type, which is specially established in the different areas of social life and endowed with a special legal capacity. The non-entrepreneurial legal entity shall be entitled to carry out activities with a view to profit but it doesn’t distribute it among participants (members).
{"title":"Non-Entrepreneurial Legal Entity: The Theoretical And Legal Analysis Of The Concept And Characteristics","authors":"O. I. Zozuliak","doi":"10.15330/apiclu.51.22-33","DOIUrl":"https://doi.org/10.15330/apiclu.51.22-33","url":null,"abstract":"The article is devoted to the theoretical and legal analysis of issues related to the range of problems connected with development of such legal model as ‘nonentrepreneurial legal entity’. In the scientific work the author makes an analysis of those concepts which are submitted by the leading Ukrainian scholars and concern the formation of civil-law terminology in general and that is applied to the nonentrepreneurial legal entities, in particular. \u0000The author has concluded that it is expedient to apply the set of criteria during formation of the non-entrepreneurial legal entity. The article gives the definition of non-entrepreneurial legal entity in the narrow and broad meanings. \u0000It is proved that a non-business entity should be singled out as a separate category according to the non-distribution of profit (income) rather than to the specifics of its business activity. The author demonstrates the feasibility to change classification criteria and levels while classifying the legal entities and on the mentioned ground she has singled out: 1) procedure for establishment of the legal entity; 2) structure of the legal entity as a criterion of the second classification level; 3) specific character of the profit distribution as a criterion of the third level of classification. It is based on the argument that non-business entities are an independent group of the legal entities, which is divided into subgroups: the non-business entities of corporate type and the non-business entities of unitary type. Each subgroup of the non-business legal entity distinguishes several legal forms within of which specific types of non-business entities are allocated. \u0000The author presents one’s own definition of the non-entrepreneurial legal entity, as a legal entity of public or private law, whether of corporate or unitary type, which is specially established in the different areas of social life and endowed with a special legal capacity. \u0000The non-entrepreneurial legal entity shall be entitled to carry out activities with a view to profit but it doesn’t distribute it among participants (members).","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126666558","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 : 2019-08-06DOI: 10.15330/apiclu.51.58-65
R. Sabodash
The paper focuses on the debtor’s contract awarded into a suspicious bankruptcy period. Special attention is paid to retrospective bankruptcy legislation according to which the debtor’s contracts may be declared invalid. The article deals with the practice of the Supreme Court, the Constitutional Court of Ukraine, the European Court of Human Rights. The European Court of Human Rights in the case «James and Others v. The United Kingdom» stated that the fairness of a system of law governing the contractual or property rights of private parties is a matter of public concern and therefore legislative measures intended to bring about such fairness are capable of being «in the public interest», even if they involve the compulsory transfer of property from one individual to another. Special attention is paid to cases “Melnyk v. Ukraine” in which the European Court of Human Rights requires retrospective civil legislation is not expressly prohibited by the provisions of the Convention and in certain circumstances may be justified. Therefore, the Court considers that the issue of an effective remedy is concerned, the remedy in question must already exist with a sufficient degree of certainty. The retroactive application of civil procedural law would undermine the principle of legal certainty and would be contrary to the rule of law when it deprives a person of access to a remedy which is deemed to be effective for the purposes of Article 35 § 1 of the Convention. The issue of this paper is to show that the aim of the legislation could not have been achieved without retrospection and the author is accordingly satisfied that a reasonable degree of proportionality exists between the means employed and the aim sought to be achieved because each party has access to effective remedies.
{"title":"Retrospective Bankruptcy Legislation In The Practice Of The European Court Of Human Rights And Constitutional Court Of Ukraine","authors":"R. Sabodash","doi":"10.15330/apiclu.51.58-65","DOIUrl":"https://doi.org/10.15330/apiclu.51.58-65","url":null,"abstract":"The paper focuses on the debtor’s contract awarded into a suspicious bankruptcy period. Special attention is paid to retrospective bankruptcy legislation according to which the debtor’s contracts may be declared invalid. \u0000The article deals with the practice of the Supreme Court, the Constitutional Court of Ukraine, the European Court of Human Rights. The European Court of Human Rights in the case «James and Others v. The United Kingdom» stated that the fairness of a system of law governing the contractual or property rights of private parties is a matter of public concern and therefore legislative measures intended to bring about such fairness are capable of being «in the public interest», even if they involve the compulsory transfer of property from one individual to another. \u0000Special attention is paid to cases “Melnyk v. Ukraine” in which the European Court of Human Rights requires retrospective civil legislation is not expressly prohibited by the provisions of the Convention and in certain circumstances may be justified. Therefore, the Court considers that the issue of an effective remedy is concerned, the remedy in question must already exist with a sufficient degree of certainty. The retroactive application of civil procedural law would undermine the principle of legal certainty and would be contrary to the rule of law when it deprives a person of access to a remedy which is deemed to be effective for the purposes of Article 35 § 1 of the Convention. \u0000The issue of this paper is to show that the aim of the legislation could not have been achieved without retrospection and the author is accordingly satisfied that a reasonable degree of proportionality exists between the means employed and the aim sought to be achieved because each party has access to effective remedies.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"132 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133148909","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 : 2019-08-06DOI: 10.15330/apiclu.51.205-212
M. Yatsyna
Taking into account global trend that fight against crime and crime prevention can be successful only if we consolidate public authority’ and society’ efforts all together, the need of study of non-governmental organizations involvement in process of combating crime is necessary. Recent developments of civil society in Ukraine shows us the rise of role of non-governmental organizations in state affairs, and sphere of combating of crime is not an exception. At the same time, the term “non-governmental organizations” seems to be quite new for Ukraine’ criminological science, as well as for legal science of Ukraine in a whole. That is why the study of legal nature of non-governmental organizations give us the chance to conduct deeper research about their impact into decision-making proses and formation of different kinds of state policies, including policy in the field of combating crime in Ukraine. Therefore, the article is devoted to highlighting the characteristic features of nongovernmental organizations. Seems reasonable to start conduct such a research via study based on a logical and meaningful analysis of the regulatory documents of the Council of Europe. Where features of the concept of “non-governmental organization” are disclosed. Later on the right disclosure of features of non-governmental organizations, makes it possible to distinguish them from other similar legal forms (civil society organization, non-profit organization, voluntary citizens’ group etc.). Taking into account the global trends and the development of criminological science, the importance of further research on non-governmental organizations in the field of counter of crime is noted. A vital part in further research belongs to formation of a separate definition of “non-governmental organization” in the theory of Ukrainian’ legal science.
{"title":"Features Of “Non-Governmental Organizations” In The Sphere Of Counter Of Crime","authors":"M. Yatsyna","doi":"10.15330/apiclu.51.205-212","DOIUrl":"https://doi.org/10.15330/apiclu.51.205-212","url":null,"abstract":"Taking into account global trend that fight against crime and crime prevention can be successful only if we consolidate public authority’ and society’ efforts all together, the need of study of non-governmental organizations involvement in process of combating crime is necessary. Recent developments of civil society in Ukraine shows us the rise of role of non-governmental organizations in state affairs, and sphere of combating of crime is not an exception. At the same time, the term “non-governmental organizations” seems to be quite new for Ukraine’ criminological science, as well as for legal science of Ukraine in a whole. That is why the study of legal nature of non-governmental organizations give us the chance to conduct deeper research about their impact into decision-making proses and formation of different kinds of state policies, including policy in the field of combating crime in Ukraine. \u0000Therefore, the article is devoted to highlighting the characteristic features of nongovernmental organizations. Seems reasonable to start conduct such a research via study based on a logical and meaningful analysis of the regulatory documents of the Council of Europe. Where features of the concept of “non-governmental organization” are disclosed. Later on the right disclosure of features of non-governmental organizations, makes it possible to distinguish them from other similar legal forms (civil society organization, non-profit organization, voluntary citizens’ group etc.). Taking into account the global trends and the development of criminological science, the importance of further research on non-governmental organizations in the field of counter of crime is noted. A vital part in further research belongs to formation of a separate definition of “non-governmental organization” in the theory of Ukrainian’ legal science.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116365450","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 : 2019-08-06DOI: 10.15330/apiclu.51.127-136
I. Kozych
In the article the author states that the transition of Ukraine (especially in the current conditions of «information war») to the information society, the development and dominance of the information sphere put forward the need for a high-quality state information policy that could consolidate the society and in the future ensure the achievement of the proper level. socio-economic development of the country. The most important factor in the information society is the high professionalism and responsibility of participants in the information exchange (first of all, the media and authorities) and ensuring equal rights for all of its subjects. So important is the role of information in the life of mankind and, consequently, of the institutions that own and transmit this information, raised the question of the wider use of information technologies than in everyday life, namely - at the state level, in the internal and foreign policy of the state. It is resumed that the period of formation of the legislative provision of the information-communication function of the criminal-law policy (up to 2001) was characterized by unsatisfactory activity of the executive power bodies in the formation of a secure (including criminal-legal means) information society. The further development of state information policy should be carried out in the light of past (even negative) experience and with the obligatory involvement of the achievements and means of modern criminal law policy of Ukraine.
{"title":"Formation Of Information And Communication Function Of Criminal Policy","authors":"I. Kozych","doi":"10.15330/apiclu.51.127-136","DOIUrl":"https://doi.org/10.15330/apiclu.51.127-136","url":null,"abstract":"In the article the author states that the transition of Ukraine (especially in the current conditions of «information war») to the information society, the development and dominance of the information sphere put forward the need for a high-quality state information policy that could consolidate the society and in the future ensure the achievement of the proper level. socio-economic development of the country. \u0000The most important factor in the information society is the high professionalism and responsibility of participants in the information exchange (first of all, the media and authorities) and ensuring equal rights for all of its subjects. \u0000So important is the role of information in the life of mankind and, consequently, of the institutions that own and transmit this information, raised the question of the wider use of information technologies than in everyday life, namely - at the state level, in the internal and foreign policy of the state. It is resumed that the period of formation of the legislative provision of the information-communication function of the criminal-law policy (up to 2001) was characterized by unsatisfactory activity of the executive power bodies in the formation of a secure (including criminal-legal means) information society. \u0000The further development of state information policy should be carried out in the light of past (even negative) experience and with the obligatory involvement of the achievements and means of modern criminal law policy of Ukraine.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"4 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134164691","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 : 2019-08-06DOI: 10.15330/apiclu.51.49-58
O. Oliinyk
In the article research is carried out and such fundamental legal category as «source of right» is analysed. A concept «source of right» is today multidimensional, can be examined as in wide so in a narrow value. On the specific of sources of right can influence him branch belonging. In the presented article the «source of right» is examined in a formal aspect and answers formal definiteness. On the basis of the general theoretic going near a concept «source of right» a concept «source of corporate law» is certain in the article. Drawn conclusion, that source corporate it is an external form of expression of norms of corporate law. It is marked that legal nature of sources of corporate law is related to the concept of corporate law and concept of corporate legal relationships. The concept of the system of sources of corporate law is offered in the article. Signs over of the system of sources of corporate law are brought. Criteria are marked for classification of sources of corporate law, that are in basis of the system. Drawn conclusion, that basic structural parts of the system of sources of corporate law are normatively-legal acts, corporate acts, normative agreement, corporate customs, judicial practice. In the article the author supported the position that corporate law is an integral part of civil law. Therefore, the sources of corporate law are an integral part of civil law sources. The author divides the sources of corporate law for their legal force, under the subjects of rulorcreativity, by means of acceptance, for the purpose of adoption. The article emphasizes the importance of corporate acts in the regulation of corporate legal relations. Corporate acts in the article are considered as actions aimed at emergence or realization of corporate legal personality of participants of corporate education. It is concluded that corporate acts have a contractual, and not a lawful nature. It is stated that when creating corporate acts both public and private interests of interested participants are taken into account.
{"title":"Sources Of Corporate Law Of Ukraine : Features Of Systematization","authors":"O. Oliinyk","doi":"10.15330/apiclu.51.49-58","DOIUrl":"https://doi.org/10.15330/apiclu.51.49-58","url":null,"abstract":"In the article research is carried out and such fundamental legal category as «source of right» is analysed. A concept «source of right» is today multidimensional, can be examined as in wide so in a narrow value. On the specific of sources of right can influence him branch belonging. In the presented article the «source of right» is examined in a formal aspect and answers formal definiteness. \u0000On the basis of the general theoretic going near a concept «source of right» a concept «source of corporate law» is certain in the article. Drawn conclusion, that source corporate it is an external form of expression of norms of corporate law. It is marked that legal nature of sources of corporate law is related to the concept of corporate law and concept of corporate legal relationships. \u0000The concept of the system of sources of corporate law is offered in the article. Signs over of the system of sources of corporate law are brought. Criteria are marked for classification of sources of corporate law, that are in basis of the system. Drawn conclusion, that basic structural parts of the system of sources of corporate law are normatively-legal acts, corporate acts, normative agreement, corporate customs, judicial practice. \u0000In the article the author supported the position that corporate law is an integral part of civil law. Therefore, the sources of corporate law are an integral part of civil law sources. The author divides the sources of corporate law for their legal force, under the subjects of rulorcreativity, by means of acceptance, for the purpose of adoption. The article emphasizes the importance of corporate acts in the regulation of corporate legal relations. Corporate acts in the article are considered as actions aimed at emergence or realization of corporate legal personality of participants of corporate education. It is concluded that corporate acts have a contractual, and not a lawful nature. It is stated that when creating corporate acts both public and private interests of interested participants are taken into account.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123710053","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 : 2019-08-06DOI: 10.15330/apiclu.51.166-177
Y. Mykytyn
This article analyzes the approaches to the classification of criminal procedural policiesof EU Member States. The basic variants of classifications of models (types) of criminal procedure policies of the EU Member States are investigated. It is considered that in the context of defining approaches to the classification of criminal procedural policies of the Member States of the European Union, it would be optimal to simultaneously use the terms «model» and «type» of criminal procedural policy as universal synonymous categories, that reflecting both European and Ukrainian legal traditions. Despite the tendency to unification and converge criminal procedural legislation of EU Member States on the basis of EU standards, criminal procedural policies in such countries have significant differences. Belonging to a particular model (type) of criminal procedure policy is determined on the basis of the content of the legal system of a particular EU Member State and is conditioned by various factors. First of all, there are two basic models (types) of criminal procedural policies of EU Member States at the global level: Anglo-Saxon and Continental (Romano-German). The Continental (Romano-German) model (type) of criminal procedure policy has the following types: French (Romance), German and Swedish (Scandinavian). The German type (model) had the greatest influence on the formulation of criminal (type), the following subspecies are distinguished: Central and Eastern European, Baltic, Balkan. The models (types) of criminal procedure policies of EU Member States can be classified on the basis of such a criterion as the form of the state. Thus, the form of state government can distinguish the constitutional monarchical model (type) of criminal procedural policy and the republican model (type) of criminal procedural policy. In turn, the republican model (type) of criminal procedural policy is of two types, semi-presidential and parliamentary. It should be emphasized that the EU Member States are not characterized by the presidential kind of the model (type) of republican criminal procedural policy. According to the form of the state system there are a unitary and a federal model (type) of criminal procedure policy. According to the form of state regime, all EU Member States belong to the democratic model (type) of criminal procedure policy. One of the criteria for the classification of models (types) of criminal procedural policies is the methodology of codification of criminal procedural law. According to this criterion, it is possible to distinguish classical continental, Swedish (Scandinavian) and Anglo-Saxon model (type) of criminal procedure policy.
{"title":"Defining Approaches To The Classification Of Criminal Procedure Policies Of EU Member States","authors":"Y. Mykytyn","doi":"10.15330/apiclu.51.166-177","DOIUrl":"https://doi.org/10.15330/apiclu.51.166-177","url":null,"abstract":"This article analyzes the approaches to the classification of criminal procedural policiesof EU Member States. The basic variants of classifications of models (types) of criminal procedure policies of the EU Member States are investigated. \u0000It is considered that in the context of defining approaches to the classification of criminal procedural policies of the Member States of the European Union, it would be optimal to simultaneously use the terms «model» and «type» of criminal procedural policy as universal synonymous categories, that reflecting both European and Ukrainian legal traditions. \u0000Despite the tendency to unification and converge criminal procedural legislation of EU Member States on the basis of EU standards, criminal procedural policies in such countries have significant differences. \u0000Belonging to a particular model (type) of criminal procedure policy is determined on the basis of the content of the legal system of a particular EU Member State and is conditioned by various factors. \u0000First of all, there are two basic models (types) of criminal procedural policies of EU Member States at the global level: Anglo-Saxon and Continental (Romano-German). The Continental (Romano-German) model (type) of criminal procedure policy has the following types: French (Romance), German and Swedish (Scandinavian). \u0000The German type (model) had the greatest influence on the formulation of criminal (type), the following subspecies are distinguished: Central and Eastern European, Baltic, Balkan. \u0000The models (types) of criminal procedure policies of EU Member States can be classified on the basis of such a criterion as the form of the state. Thus, the form of state government can distinguish the constitutional monarchical model (type) of criminal procedural policy and the republican model (type) of criminal procedural policy. In turn, the republican model (type) of criminal procedural policy is of two types, semi-presidential and parliamentary. It should be emphasized that the EU Member States are not characterized by the presidential kind of the model (type) of republican criminal procedural policy. According to the form of the state system there are a unitary and a federal model (type) of criminal procedure policy. According to the form of state regime, all EU Member States belong to the democratic model (type) of criminal procedure policy. \u0000One of the criteria for the classification of models (types) of criminal procedural policies is the methodology of codification of criminal procedural law. According to this criterion, it is possible to distinguish classical continental, Swedish (Scandinavian) and Anglo-Saxon model (type) of criminal procedure policy.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"69 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114242017","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 : 2019-08-06DOI: 10.15330/apiclu.51.118-126
Yu.V. Kerniakevych-Tanasiichuk
The key to effective implementation of the right to judicial protection is the proper functioning of the judicial system, an important element of which is the administrative courts that ensure the administration of administrative justice. Moreover, the protection of human and citizen’s rights and freedoms through the instruments of administrative justice is an important guarantee of protection against violations by public authorities and local self-government of the «weaker» side of public-legal relations - human and citizen. In the legal literature administrative legal proceedings is interpreted differently by different scholars, which makes it possible to conclude that this legal phenomenon is multidimensional. In addition to understanding «administrative legal proceedings » as a separate area of justice, scholars also view administrative law as meaning: administrative justice as an area of legal science; positive (objective) administrative justice as an area of law Administrative legal proceedings as a branch of legal science examines the current law and jurisprudence of its application, its history and theory, the legislation of other states governing certain legal relationships. The independence of the field of law is first of all indicated by the specific subject matter and method of regulation, which are the identifying features by which the branches of law are distinguished. Administrative legal proceedings is endowed with its specific subject (the set of social relations that determine the procedure for consideration and resolution by public courts of public law disputes) and the method of legal regulation of the relevant relations in the process of administration of justice, which is endowed with a complex character, that is, is positive. At the same time, administrative legal proceedings as a separate science, field of law and branch of justice is the subject of study of the same discipline. In addition, given the inaccuracy of the terms «administrative process» and «administrative legal proceedings» (the term administrative process is broader and more generalized term, which includes administrative justice), it is necessary to emphasize the need to teach «Administrative legal proceedings of Ukraine» separately from «Administrative Procedural Law of Ukraine» at the level of independent academic discipline. This will focus on the peculiarities of the procedure for the consideration and settlement of administrative cases by administrative courts at all stages of the judicial administrative process.
{"title":"Administrative Legal Proceedings: The Ambiguity Of The Concept","authors":"Yu.V. Kerniakevych-Tanasiichuk","doi":"10.15330/apiclu.51.118-126","DOIUrl":"https://doi.org/10.15330/apiclu.51.118-126","url":null,"abstract":"The key to effective implementation of the right to judicial protection is the proper functioning of the judicial system, an important element of which is the administrative courts that ensure the administration of administrative justice. Moreover, the protection of human and citizen’s rights and freedoms through the instruments of administrative justice is an important guarantee of protection against violations by public authorities and local self-government of the «weaker» side of public-legal relations - human and citizen. \u0000In the legal literature administrative legal proceedings is interpreted differently by different scholars, which makes it possible to conclude that this legal phenomenon is multidimensional. \u0000In addition to understanding «administrative legal proceedings » as a separate area of justice, scholars also view administrative law as meaning: administrative justice as an area of legal science; positive (objective) administrative justice as an area of law \u0000Administrative legal proceedings as a branch of legal science examines the current law and jurisprudence of its application, its history and theory, the legislation of other states governing certain legal relationships. \u0000The independence of the field of law is first of all indicated by the specific subject matter and method of regulation, which are the identifying features by which the branches of law are distinguished. Administrative legal proceedings is endowed with its specific subject (the set of social relations that determine the procedure for consideration and resolution by public courts of public law disputes) and the method of legal regulation of the relevant relations in the process of administration of justice, which is endowed with a complex character, that is, is positive. \u0000At the same time, administrative legal proceedings as a separate science, field of law and branch of justice is the subject of study of the same discipline. \u0000In addition, given the inaccuracy of the terms «administrative process» and «administrative legal proceedings» (the term administrative process is broader and more generalized term, which includes administrative justice), it is necessary to emphasize the need to teach «Administrative legal proceedings of Ukraine» separately from «Administrative Procedural Law of Ukraine» at the level of independent academic discipline. This will focus on the peculiarities of the procedure for the consideration and settlement of administrative cases by administrative courts at all stages of the judicial administrative process.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127359924","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 : 2019-08-06DOI: 10.15330/apiclu.51.136-145
S. Krul
Practice shows that today law enforcement is increasingly a need to obtain and use information about objects that were in the scope of the investigation on a variety of information systems regardless of their departmental affiliation. Therefore, it is proper information and reference software is a prerequisite for success of the pre-trial investigation. Crime investigation, as a dynamic procedural activity, goes through separate stages and is a process of transition from the original procedural situations to the next. Such activities are not possible without proper information and inquiry support for the investigation of crimes. Analyzing this order, it should be noted that the YERDR structure includes a large number of records of persons for whom criminal proceedings have been opened, as well as persons who were interested persons (applicant, victim, etc.) of these proceedings. In connection with what we can attribute a single register of pre-trial investigations to the information-inquiry systems of pre-trial investigation bodies. Therefore, it can be concluded that the investigator conducting the direct investigation of criminal offenses is limited in information on other criminal offenses. As a result, investigators consider the ineffective use of YERDR in criminal investigations as information support. Therefore, we suggest that investigators, after reporting a suspected person, have access to information outside the criminal offenses that they are being investigated. In addition, the cases provided for by the law on state secrets. This paper analyzes the use «YERDR» criminal investigation body and along these lines is suggested to use a registry as providing information and help investigate crimes.
{"title":"Problems Of Using YERDR As A System Of Information Support For Pre-Trial Investigation Of Criminal Offenses","authors":"S. Krul","doi":"10.15330/apiclu.51.136-145","DOIUrl":"https://doi.org/10.15330/apiclu.51.136-145","url":null,"abstract":"Practice shows that today law enforcement is increasingly a need to obtain and use information about objects that were in the scope of the investigation on a variety of information systems regardless of their departmental affiliation. Therefore, it is proper information and reference software is a prerequisite for success of the pre-trial investigation. \u0000Crime investigation, as a dynamic procedural activity, goes through separate stages and is a process of transition from the original procedural situations to the next. Such activities are not possible without proper information and inquiry support for the investigation of crimes. \u0000Analyzing this order, it should be noted that the YERDR structure includes a large number of records of persons for whom criminal proceedings have been opened, as well as persons who were interested persons (applicant, victim, etc.) of these proceedings. In connection with what we can attribute a single register of pre-trial investigations to the information-inquiry systems of pre-trial investigation bodies. \u0000Therefore, it can be concluded that the investigator conducting the direct investigation of criminal offenses is limited in information on other criminal offenses. As a result, investigators consider the ineffective use of YERDR in criminal investigations as information support. Therefore, we suggest that investigators, after reporting a suspected person, have access to information outside the criminal offenses that they are being investigated. In addition, the cases provided for by the law on state secrets. \u0000This paper analyzes the use «YERDR» criminal investigation body and along these lines is suggested to use a registry as providing information and help investigate crimes.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"203 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132276737","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 : 2019-08-06DOI: 10.15330/apiclu.51.145-154
Yu.V. Leka
The article substantiates the need to carry out a comparative legal analysis of Ukrainian and foreign legislation on fixing the motive of the crime and its criminal- legal significance. Comparative analysis of the laws of foreign countries is made taking into account the membership of countries in the legal systems. The research of the legal status of the motive of crime in the legislation of foreign countries was carried out on the basis of consideration of basic acts of criminal legislation approved at the state level by the higher legislative bodies of a state. The analysis of various approaches to determining the motive of the crime based on the works of foreign and domestic scientists. On the basis of consideration of normative legal acts of criminal nature of foreign countries, the main terms, which indicate the motive of the crime are defined. The basic approaches of fixing the motive of crime in the legislation of foreign countries are defined and the ways of improvement of the Ukrainian legislation in this matter are proposed. It has been established that the legislation of some countries clearly traces the role of motive as a circumstance aggravating punishment and as a sign that must be taken into account directly in sentencing. In spite of this, most countries still hold a position of indifference to the motive of the crime, recognizing it as a minor element of the subjective side of the crime. It is established that the position of the Ukrainian legislator on the optionality of the sign of motive among other constituents of the subjective side of the crime and the obligatory sign among the elements of evidence in the criminal process is quite logical and justified. But many aspects related to the motive for the crime must be refined. Ukrainian legislation, including criminal law, become more progressive every year and meets European standards.
{"title":"The Motive Of Crime In Foreign Law: A Comparative Legal Analysis","authors":"Yu.V. Leka","doi":"10.15330/apiclu.51.145-154","DOIUrl":"https://doi.org/10.15330/apiclu.51.145-154","url":null,"abstract":"The article substantiates the need to carry out a comparative legal analysis of Ukrainian and foreign legislation on fixing the motive of the crime and its criminal- legal significance. Comparative analysis of the laws of foreign countries is made taking into account the membership of countries in the legal systems. The research of the legal status of the motive of crime in the legislation of foreign countries was carried out on the basis of consideration of basic acts of criminal legislation approved at the state level by the higher legislative bodies of a state. The analysis of various approaches to determining the motive of the crime based on the works of foreign and domestic scientists. On the basis of consideration of normative legal acts of criminal nature of foreign countries, the main terms, which indicate the motive of the crime are defined. The basic approaches of fixing the motive of crime in the legislation of foreign countries are defined and the ways of improvement of the Ukrainian legislation in this matter are proposed. It has been established that the legislation of some countries clearly traces the role of motive as a circumstance aggravating punishment and as a sign that must be taken into account directly in sentencing. In spite of this, most countries still hold a position of indifference to the motive of the crime, recognizing it as a minor element of the subjective side of the crime. It is established that the position of the Ukrainian legislator on the optionality of the sign of motive among other constituents of the subjective side of the crime and the obligatory sign among the elements of evidence in the criminal process is quite logical and justified. But many aspects related to the motive for the crime must be refined. Ukrainian legislation, including criminal law, become more progressive every year and meets European standards.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114758292","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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