Pub Date : 2022-06-30DOI: 10.15330/apiclu.59.131-147
Y. Lomaha
The article is devoted to the study of the problems of the legal and technical description of the signs of premeditated murder in the system of norms about this offense in the Criminal Code of Ukraine in terms of their influence on potential problems of qualification for a set of criminal offenses. The Criminal Code of Ukraine contains a fairly extensive system of legal provisions that regulate responsibility for various types of murder. At the same time, the legislator uses various methods of describing the features of the composition of murders, some of which become nothing more than a legal and technical prerequisite for the emergence of problems in the future criminal-legal assessment of the committed murder in combination with other criminal offenses. A review of the system of norms on intentional homicide in the Criminal Code of Ukraine will help to determine the justification of the legislator’s use of those techniques of legal technique that can create potential problems of law enforcement. The purpose of the article was to highlight the system of norms on intentional homicide in the Criminal Code of Ukraine and the peculiarities of its normative regulation as a legal and technical prerequisite for the problems of qualification of intentional homicides by the totality of crimes. An attempt will be made in the article to prove the possibility of simplifying the description of the features of the composition of murders as a means of eliminating the problems of their adequate criminal-legal assessment. The information presented in the work gives grounds for the conclusion that the legislator’s use of unsuccessful legal and technical techniques in the construction of the articles of the Special Part of the Criminal Code of Ukraine, which contain a system of norms on responsibility for intentional homicide, creates potential problems in the application of these norms, calling into question the need to qualify the crimes committed offenses under a set of crimes. In this regard, it seems appropriate to introduce such changes to the Criminal Code of Ukraine that would remove doubts about the need to apply the general rule on murder, provided for in the relevant part of Art. 115 of the Criminal Code of Ukraine in combination with the norm on another criminal offense committed by a person. Such a legislative decision will make it possible to adequately qualify everything committed even if the attitude to the consequences in the form of death on the part of the guilty person was careless. In this case, the person may additionally be incriminated by the norm provided for in the relevant part of Art. 119 of the Criminal Code of Ukraine.
{"title":"The system of norms on intentional homicide in the Criminal Code of Ukraine as a legal and technical prerequisite for the problems of their qualification according to the totality of crimes","authors":"Y. Lomaha","doi":"10.15330/apiclu.59.131-147","DOIUrl":"https://doi.org/10.15330/apiclu.59.131-147","url":null,"abstract":"The article is devoted to the study of the problems of the legal and technical description of the signs of premeditated murder in the system of norms about this offense in the Criminal Code of Ukraine in terms of their influence on potential problems of qualification for a set of criminal offenses. The Criminal Code of Ukraine contains a fairly extensive system of legal provisions that regulate responsibility for various types of murder. At the same time, the legislator uses various methods of describing the features of the composition of murders, some of which become nothing more than a legal and technical prerequisite for the emergence of problems in the future criminal-legal assessment of the committed murder in combination with other criminal offenses. A review of the system of norms on intentional homicide in the Criminal Code of Ukraine will help to determine the justification of the legislator’s use of those techniques of legal technique that can create potential problems of law enforcement. The purpose of the article was to highlight the system of norms on intentional homicide in the Criminal Code of Ukraine and the peculiarities of its normative regulation as a legal and technical prerequisite for the problems of qualification of intentional homicides by the totality of crimes. An attempt will be made in the article to prove the possibility of simplifying the description of the features of the composition of murders as a means of eliminating the problems of their adequate criminal-legal assessment. The information presented in the work gives grounds for the conclusion that the legislator’s use of unsuccessful legal and technical techniques in the construction of the articles of the Special Part of the Criminal Code of Ukraine, which contain a system of norms on responsibility for intentional homicide, creates potential problems in the application of these norms, calling into question the need to qualify the crimes committed offenses under a set of crimes. In this regard, it seems appropriate to introduce such changes to the Criminal Code of Ukraine that would remove doubts about the need to apply the general rule on murder, provided for in the relevant part of Art. 115 of the Criminal Code of Ukraine in combination with the norm on another criminal offense committed by a person. Such a legislative decision will make it possible to adequately qualify everything committed even if the attitude to the consequences in the form of death on the part of the guilty person was careless. In this case, the person may additionally be incriminated by the norm provided for in the relevant part of Art. 119 of the Criminal Code of Ukraine.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123020044","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 : 2022-06-30DOI: 10.15330/apiclu.59.84-97
A. Stasiv
This article explores innovations as objects of civil legal relations and their impact on the contract. The contract is a universal form of regulation of these relations. The analysis of scientific concepts on the objects of legal relations became the basis for the conclusion about the priority of pluralistic approaches to the objects of legal relations in general. Regarding innovation, the article argues for an inexhaustible list of them.The author argues that innovation must be technological in nature. Therefore, goods and services produced by technological innovations cannot be innovations. Products can be innovations if they have new or improved qualities.On the basis of the analysis of special legislation, it is concluded that the characteristics of innovations stipulated therein are of an economic rather than legal nature. However, some of them, such as novelty and practical suitability for improving the industrial, economic or social sphere, are the basis for the formation of legal characteristics of innovations.From the point of law view, innovation is a complex integrated legal concept, which includes several objects of intellectual property rights. It is substantiated that innovations include, first of all, objects of industrial property rights, but not only them. Innovations consist from the objects of intellectual property rights, but differ from them in the moment of their creation. Objects of intellectual property rights acquire these attributes on the basis of receipt of supporting documents or other grounds established by law, while innovations acquire a special status by virtue of confirmation of the fact of their practical introduction into production.
{"title":"Innovation as an object of civil relationships","authors":"A. Stasiv","doi":"10.15330/apiclu.59.84-97","DOIUrl":"https://doi.org/10.15330/apiclu.59.84-97","url":null,"abstract":"This article explores innovations as objects of civil legal relations and their impact on the contract. The contract is a universal form of regulation of these relations. The analysis of scientific concepts on the objects of legal relations became the basis for the conclusion about the priority of pluralistic approaches to the objects of legal relations in general. Regarding innovation, the article argues for an inexhaustible list of them.The author argues that innovation must be technological in nature. Therefore, goods and services produced by technological innovations cannot be innovations. Products can be innovations if they have new or improved qualities.On the basis of the analysis of special legislation, it is concluded that the characteristics of innovations stipulated therein are of an economic rather than legal nature. However, some of them, such as novelty and practical suitability for improving the industrial, economic or social sphere, are the basis for the formation of legal characteristics of innovations.From the point of law view, innovation is a complex integrated legal concept, which includes several objects of intellectual property rights. It is substantiated that innovations include, first of all, objects of industrial property rights, but not only them. Innovations consist from the objects of intellectual property rights, but differ from them in the moment of their creation. Objects of intellectual property rights acquire these attributes on the basis of receipt of supporting documents or other grounds established by law, while innovations acquire a special status by virtue of confirmation of the fact of their practical introduction into production.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128920784","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 : 2022-02-28DOI: 10.15330/apiclu.58.47-56
M.K. Zubanskiy
The article conducts a comprehensive study of the legal category of «War Crimes» in the context of the provisions of international criminal law and international regulations. To date, the concept of war crime has not received clear legal regulation in the provisions of international law, but has become widespread and applied in practice a list of acts that are recognized as war crimes under the Rome Statute of the International Criminal Court and the Geneva Convention.A full analysis of the category of «war crime» is impossible without studying the legal features of war crimes based on the provisions of international humanitarian law and the security doctrine of the international community, through the prism of the practice of international law.War crimes are characterized by the significance of those features of a criminal offense that are irrelevant in ordinary crimes and in war crimes allow to correctly classify a socially dangerous act and determine the rules of international law applicable to a person committing a war crime. A special feature of the subject of the crime is the presence of a special subject of war crimes, namely combatants or non-combatants. From a subjective side a military crime is accomplished consciously and with the intentional form of guilt. Marked, that during the estimation of publicly-dangerous act as military crime an important value has research of signs of perfect act through the prism of signs of soldiery crimes, that is certain the norms of Genevan convention and also Roman charter of the International criminal court. It is thus summarized that as a military crime the feasance of international or domestic conflict comes forward a subject or by the persons of act, that consists in gross, mass violation of norms of international humanitarian law and also in gross violation of rights and freedoms of persons, that participate battle actions or are in the district of realization of battle actions, equated with them.
{"title":"The concept and composition of war crimes in the context of international criminal law","authors":"M.K. Zubanskiy","doi":"10.15330/apiclu.58.47-56","DOIUrl":"https://doi.org/10.15330/apiclu.58.47-56","url":null,"abstract":"The article conducts a comprehensive study of the legal category of «War Crimes» in the context of the provisions of international criminal law and international regulations. To date, the concept of war crime has not received clear legal regulation in the provisions of international law, but has become widespread and applied in practice a list of acts that are recognized as war crimes under the Rome Statute of the International Criminal Court and the Geneva Convention.A full analysis of the category of «war crime» is impossible without studying the legal features of war crimes based on the provisions of international humanitarian law and the security doctrine of the international community, through the prism of the practice of international law.War crimes are characterized by the significance of those features of a criminal offense that are irrelevant in ordinary crimes and in war crimes allow to correctly classify a socially dangerous act and determine the rules of international law applicable to a person committing a war crime. A special feature of the subject of the crime is the presence of a special subject of war crimes, namely combatants or non-combatants. From a subjective side a military crime is accomplished consciously and with the intentional form of guilt. Marked, that during the estimation of publicly-dangerous act as military crime an important value has research of signs of perfect act through the prism of signs of soldiery crimes, that is certain the norms of Genevan convention and also Roman charter of the International criminal court. It is thus summarized that as a military crime the feasance of international or domestic conflict comes forward a subject or by the persons of act, that consists in gross, mass violation of norms of international humanitarian law and also in gross violation of rights and freedoms of persons, that participate battle actions or are in the district of realization of battle actions, equated with them.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126032308","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 : 2022-02-28DOI: 10.15330/apiclu.58.20-26
Y. Fomenko
In the course of the research the normative-legal analysis was carried out and a number of general theoretical and practical problems of the national legislation of Ukraine on protection of the rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent were identified. The purpose of the research is to analyze the general theoretical and practical problems of the national legislation of Ukraine regarding the protection of the rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent. The right to protect one’s rights and interests is the basis of civil law and the guarantee of the proper performance of contractual obligations. Non-fulfillment or improper fulfillment of contractual obligations are the causes of disputes in the field of civil law. This scientific article examines some ways to protect the rights and interests of the creditor in case of breach of monetary obligations in foreign currency. The advantages and disadvantages of such methods are analyzed.The study established the lack of a legally defined procedure for accrual of penalty in a monetary obligation with a foreign currency equivalent and proposed to improve the law on protection of the rights and interests of the creditor in case of breach of a monetary obligation with a foreign currency equivalent. The use of foreign currency in monetary obligations will be used more and more frequently by the parties, which makes it necessary to regulate the use of foreign currency in monetary obligations. The results of the study can be used in lawmaking and law enforcement activities in the implementation of the creditor’s protection of their rights and interests in case of breach of monetary obligations with a foreign currency equivalent.
{"title":"Specific features of the protection of rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent","authors":"Y. Fomenko","doi":"10.15330/apiclu.58.20-26","DOIUrl":"https://doi.org/10.15330/apiclu.58.20-26","url":null,"abstract":"In the course of the research the normative-legal analysis was carried out and a number of general theoretical and practical problems of the national legislation of Ukraine on protection of the rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent were identified. The purpose of the research is to analyze the general theoretical and practical problems of the national legislation of Ukraine regarding the protection of the rights and interests of the creditor in case of breach of monetary obligation with a foreign currency equivalent. The right to protect one’s rights and interests is the basis of civil law and the guarantee of the proper performance of contractual obligations. Non-fulfillment or improper fulfillment of contractual obligations are the causes of disputes in the field of civil law. This scientific article examines some ways to protect the rights and interests of the creditor in case of breach of monetary obligations in foreign currency. The advantages and disadvantages of such methods are analyzed.The study established the lack of a legally defined procedure for accrual of penalty in a monetary obligation with a foreign currency equivalent and proposed to improve the law on protection of the rights and interests of the creditor in case of breach of a monetary obligation with a foreign currency equivalent. The use of foreign currency in monetary obligations will be used more and more frequently by the parties, which makes it necessary to regulate the use of foreign currency in monetary obligations. The results of the study can be used in lawmaking and law enforcement activities in the implementation of the creditor’s protection of their rights and interests in case of breach of monetary obligations with a foreign currency equivalent.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116644431","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 : 2021-01-17DOI: 10.15330/apiclu.55.64-77
N.S. Shymanska
The article examines the concept and legal nature of amendments to the contract. It is established that this legal phenomenon due to the rapid development of market relations is becoming widespread. The meaning of the concept of «change» and its legal nature are analyzed. An exhaustive list of possible options for exercising the right to amend the contract has been made. According to the results of scientific research of different points of view of civilians of different epochs on the concept of «change of contract terms», the own definition of the mentioned concept is formulated and it is proposed to make appropriate changes to the current Civil Code of Ukraine. After all, the perfect legislative regulation of certain relations begins with the consolidation of their definition, in order to have a common understanding of the concept. In our opinion, the lack of a legislative definition of the term “change of contract terms” is a negative phenomenon, as it leads to unequal understanding of the concept by parties, substitution of concepts, violation of the rights of parties, different case law, which is based on the results of consideration of the category of cases related to amendments to the contract. Therefore, we believe that the CC of Ukraine should be amended by including Article 650 1 «The concept of changing the terms of the contract», by which we mean the process, active behavior of the party (parties), which aims to create new or edit existing terms of the contract to bring it in accordance with certain life circumstances, legal norms, as well as its optimization, the purpose of which is to obtain by the party (parties) a certain positive result of property and / or non-property nature. The implementation of these changes will make it possible to avoid the above-mentioned negative consequences in the future and will ensure the introduction of uniform case law in resolving disputes related to amendments to the contract.
{"title":"The Concept And Legal Nature Of Amendments To The Contract","authors":"N.S. Shymanska","doi":"10.15330/apiclu.55.64-77","DOIUrl":"https://doi.org/10.15330/apiclu.55.64-77","url":null,"abstract":"The article examines the concept and legal nature of amendments to the contract. It is established that this legal phenomenon due to the rapid development of market relations is becoming widespread. The meaning of the concept of «change» and its legal nature are analyzed. An exhaustive list of possible options for exercising the right to amend the contract has been made. According to the results of scientific research of different points of view of civilians of different epochs on the concept of «change of contract terms», the own definition of the mentioned concept is formulated and it is proposed to make appropriate changes to the current Civil Code of Ukraine. After all, the perfect legislative regulation of certain relations begins with the consolidation of their definition, in order to have a common understanding of the concept. \u0000In our opinion, the lack of a legislative definition of the term “change of contract terms” is a negative phenomenon, as it leads to unequal understanding of the concept by parties, substitution of concepts, violation of the rights of parties, different case law, which is based on the results of consideration of the category of cases related to amendments to the contract. Therefore, we believe that the CC of Ukraine should be amended by including Article 650 1 «The concept of changing the terms of the contract», by which we mean the process, active behavior of the party (parties), which aims to create new or edit existing terms of the contract to bring it in accordance with certain life circumstances, legal norms, as well as its optimization, the purpose of which is to obtain by the party (parties) a certain positive result of property and / or non-property nature. The implementation of these changes will make it possible to avoid the above-mentioned negative consequences in the future and will ensure the introduction of uniform case law in resolving disputes related to amendments to the contract.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125790774","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 : 2021-01-17DOI: 10.15330/apiclu.55.120-129
A.M. Cheredarchuk
In the article the author analyzes the national legislation, scientific research and the results of law enforcement activities of law enforcement agencies in the field of public procurement. It has been established that the opacity and inefficiency of mechanisms for controlling the public procurement process leads to the use of corruption schemes to embezzle budget funds, legalize and misappropriate them by unscrupulous officials and, as a consequence, to «shadow» the national economy. In the current conditions of the country’s development, corruption is perhaps the most negative consequence of criminal acts in the field of public procurement. Corruption in the public procurement system, as in any other area, is associated with the exercise of power, distribution or redistribution of material resources or funds, a phenomenon that is not new or even national. Another clear example of the consequences of public procurement crime is the threat of unfair competition. Among the abuses committed by public procurement participants, the greatest degree of security threat is conspiracy of participants. A conspiracy is an agreement between two or more participants in a procurement procedure aimed at setting the price of a competitive bidding offer or a price offer at artificial or non-competitive levels with or without the knowledge of the customer. The main danger of fictitious entrepreneurship is property damage to legal entities and individuals, the state, which, in turn, is expressed in concealing the facts of prohibited activities, illegal conversion of non-cash into cash, creating preconditions for tax evasion and other illegal goals, promoting legalization ( money laundering) of funds obtained by criminal means, etc.
{"title":"Socially Dangerous Consequences Of Criminal Offenses In The Field Of Public Procurement","authors":"A.M. Cheredarchuk","doi":"10.15330/apiclu.55.120-129","DOIUrl":"https://doi.org/10.15330/apiclu.55.120-129","url":null,"abstract":"In the article the author analyzes the national legislation, scientific research and the results of law enforcement activities of law enforcement agencies in the field of public procurement. It has been established that the opacity and inefficiency of mechanisms for controlling the public procurement process leads to the use of corruption schemes to embezzle budget funds, legalize and misappropriate them by unscrupulous officials and, as a consequence, to «shadow» the national economy. \u0000In the current conditions of the country’s development, corruption is perhaps the most negative consequence of criminal acts in the field of public procurement. Corruption in the public procurement system, as in any other area, is associated with the exercise of power, distribution or redistribution of material resources or funds, a phenomenon that is not new or even national. \u0000Another clear example of the consequences of public procurement crime is the threat of unfair competition. \u0000Among the abuses committed by public procurement participants, the greatest degree of security threat is conspiracy of participants. A conspiracy is an agreement between two or more participants in a procurement procedure aimed at setting the price of a competitive bidding offer or a price offer at artificial or non-competitive levels with or without the knowledge of the customer. \u0000The main danger of fictitious entrepreneurship is property damage to legal entities and individuals, the state, which, in turn, is expressed in concealing the facts of prohibited activities, illegal conversion of non-cash into cash, creating preconditions for tax evasion and other illegal goals, promoting legalization ( money laundering) of funds obtained by criminal means, etc.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116347096","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 : 2021-01-17DOI: 10.15330/apiclu.55.142-158
D.V. Kamenskyi
The article critically reviews the models of criminal sanctions introduced in Ukraine and the United States for economic criminal offenses. It is emphasized that the meaning of the concept of punishment is inextricably linked to the fundamental category of criminal liability, which means the restrictions provided by criminal law for the exercise of the rights and freedoms of a person for committing a criminal offense. It has been noted that most American courts do not practice “linear” philosophy in terms of sentencing, but on the contrary, take the whole set of unique facts and circumstances with legal significance into account in each criminal case. It has been established that this approach partially resembles the content of paragraph 3, part 1 of Art. 65 of the Criminal Code of Ukraine: the court imposes punishment, taking into account severity of the crime, identity of the perpetrator as well as mitigating and aggravating circumstances. It has been also established that in comparison with the American domestic practice of sentencing in general and for economic crimes in particular seems unreasonably humane, such that it is not able to fully implement the purpose of punishment, declared in Art. 50 of the Criminal Code, and therefore, such as objectively unable to restrain the manifestations of illegal behavior in the economic sphere. The large- scale humanization of criminal liability for economic encroachments carried out by the Ukrainian legislator at the end of 2011, combined with the decriminalization of certain acts and the replacement of imprisonment with fines in sanctions of other norms, has intensified such negative trend. Third, the analysis of the content and application of the federal Penal Code demonstrates not only the advantages of this act of the federal criminal law, but also its individual shortcomings. There is a lot of criticism against this document’s provisions in terms of sentencing for economic crimes. The main reason for criticism is the purely arithmetic relationship between the amount of punishment and the amount of material damage caused by such a crime. Based on the results of elaboration of the American experience in terms of normative provision and practice of application of punishments for economic crimes, a position has been expressed on the expediency of introducing a model of limited formalization of punishments in Ukraine.
{"title":"Domestic And American Model Of Sanctions For Criminal Violations In The Economic Field: Critical Approach By A Comparativist","authors":"D.V. Kamenskyi","doi":"10.15330/apiclu.55.142-158","DOIUrl":"https://doi.org/10.15330/apiclu.55.142-158","url":null,"abstract":"The article critically reviews the models of criminal sanctions introduced in Ukraine and the United States for economic criminal offenses. It is emphasized that the meaning of the concept of punishment is inextricably linked to the fundamental category of criminal liability, which means the restrictions provided by criminal law for the exercise of the rights and freedoms of a person for committing a criminal offense. \u0000It has been noted that most American courts do not practice “linear” philosophy in terms of sentencing, but on the contrary, take the whole set of unique facts and circumstances with legal significance into account in each criminal case. It has been established that this approach partially resembles the content of paragraph 3, part 1 of Art. 65 of the Criminal Code of Ukraine: the court imposes punishment, taking into account severity of the crime, identity of the perpetrator as well as mitigating and aggravating circumstances. \u0000It has been also established that in comparison with the American domestic practice of sentencing in general and for economic crimes in particular seems unreasonably humane, such that it is not able to fully implement the purpose of punishment, declared in Art. 50 of the Criminal Code, and therefore, such as objectively unable to restrain the manifestations of illegal behavior in the economic sphere. The large- scale humanization of criminal liability for economic encroachments carried out by the Ukrainian legislator at the end of 2011, combined with the decriminalization of certain acts and the replacement of imprisonment with fines in sanctions of other norms, has intensified such negative trend. \u0000Third, the analysis of the content and application of the federal Penal Code demonstrates not only the advantages of this act of the federal criminal law, but also its individual shortcomings. There is a lot of criticism against this document’s provisions in terms of sentencing for economic crimes. The main reason for criticism is the purely arithmetic relationship between the amount of punishment and the amount of material damage caused by such a crime. \u0000Based on the results of elaboration of the American experience in terms of normative provision and practice of application of punishments for economic crimes, a position has been expressed on the expediency of introducing a model of limited formalization of punishments in Ukraine.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121932402","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 : 2021-01-17DOI: 10.15330/apiclu.55.130-142
V. Anatiichuk
The article focuses on one of the corporate forms of entrepreneurial activity - general and limited partnerships. Limited liability companies and joint stock companies are among the most popular legal forms of companies. However, the development of Ukrainian legislation moves in the direction of creating a system of different forms of entrepreneurship, which are aimed at different needs and interests of their founders. Such forms of entrepreneurship exist and operate successfully in Europe. Carrying out a comparative analysis in the article allows the author to confirm the existing thesis that there is no single vector in European countries concerning the legal status of these partnerships. Some states define these partnerships as legal entities, others - as a form of joint business activity. It is emphasized in the article that the European legal space is characterized by the use of the concept of defective legal entity. The author perceives any of these European approaches, but points to the need for its consistent reflection in all legal acts that determine the status of general and limited partnerships. The article supports the assertion formed in the scientific literature about the criticism of domestic legislation on general and limited partnerships. Such criticism concerns to those norms of Ukrainian legislation, which use untypical provisions for legal entities. All existing researches are directed to one aim - to develop a single vector in the regulation of general and limited partnerships. They should be regulated either as legal entities or as forms of joint activity on the basis of an agreement. The author states that the main attention in granting general and limited partnerships the status of a legal entity should be focused on clear boundaries between the liability of a legal entity and the subsidiary liability of its members. The article supports leading scholars’ critical assessment of the legislative definition of general partnerships as an association of persons for joint business activities. Based on the analysis of the definitions of a general partnership in EU law (for example, France), it is proposed to define a general partnership as an association of persons engaged in business activities through joint contributions of all participants (full partners) and their subsidiary liability for the company’s obligations. This wording indicates that the partnership itself carries out business activities, and not its members. The author also does not deny the possibility of introducing general and limited partnerships as associations of persons on the basis of an agreement on joint activities. At the same time, it is noted that all norms of national legislation should consistently adhere to such concept.
{"title":"General And Limited Partnerships: Features Of Legal Regulation In Ukraine And European States","authors":"V. Anatiichuk","doi":"10.15330/apiclu.55.130-142","DOIUrl":"https://doi.org/10.15330/apiclu.55.130-142","url":null,"abstract":"The article focuses on one of the corporate forms of entrepreneurial activity - general and limited partnerships. Limited liability companies and joint stock companies are among the most popular legal forms of companies. However, the development of Ukrainian legislation moves in the direction of creating a system of different forms of entrepreneurship, which are aimed at different needs and interests of their founders. Such forms of entrepreneurship exist and operate successfully in Europe. Carrying out a comparative analysis in the article allows the author to confirm the existing thesis that there is no single vector in European countries concerning the legal status of these partnerships. Some states define these partnerships as legal entities, others - as a form of joint business activity. \u0000It is emphasized in the article that the European legal space is characterized by the use of the concept of defective legal entity. The author perceives any of these European approaches, but points to the need for its consistent reflection in all legal acts that determine the status of general and limited partnerships. The article supports the assertion formed in the scientific literature about the criticism of domestic legislation on general and limited partnerships. Such criticism concerns to those norms of Ukrainian legislation, which use untypical provisions for legal entities. All existing researches are directed to one aim - to develop a single vector in the regulation of general and limited partnerships. They should be regulated either as legal entities or as forms of joint activity on the basis of an agreement. \u0000The author states that the main attention in granting general and limited partnerships the status of a legal entity should be focused on clear boundaries between the liability of a legal entity and the subsidiary liability of its members. \u0000The article supports leading scholars’ critical assessment of the legislative definition of general partnerships as an association of persons for joint business activities. Based on the analysis of the definitions of a general partnership in EU law (for example, France), it is proposed to define a general partnership as an association of persons engaged in business activities through joint contributions of all participants (full partners) and their subsidiary liability for the company’s obligations. This wording indicates that the partnership itself carries out business activities, and not its members. \u0000The author also does not deny the possibility of introducing general and limited partnerships as associations of persons on the basis of an agreement on joint activities. At the same time, it is noted that all norms of national legislation should consistently adhere to such concept.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128433019","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 : 2021-01-17DOI: 10.15330/apiclu.55.33-44
D. Polnyi
The paper deals with the concept of measures to protect the rights of the parties of lease agreement. It is stated that in case of violation, non-recognition or challenge of the rights of lease agreement, the person against whom the illegal act was committed has the right to defend his rights independently or seek protection from one of the authorized bodies. It is emphasized that protection consists of measures of various nature. The author proved that the effectiveness of protection depends on the correctly chosen method of protection and proof of the circumstances to which the person points. It is proved that it is important to set the right goal of personal protection and choose measures aimed at achieving this goal. These arguments are confirmed by judicial practice and scientific doctrine. It is argued that non-jurisdictional safety methods, in particular self-defense, measures of operational influence, may be applied if they are provided or prohibited by law and are sufficient. Also jurisdictional safety methods must be applied when enforcement is required, or safety methods must be applied only by an authorized body. Based on the analysis of judicial practice, the criteria for the effectiveness of safety methods are established and the limits of application of safety methods are determined. Measures of judicial protection of the rights of the parties of the lease agreement has been studied. It is concluded that the limits of application of the method of protection are reflected in the legality, objectivity of application, depend on the existence of appropriate grounds and conditions, the nature of the violation, non-recognition, challenge.
{"title":"Еffectiveness Of Protection The Rights Of The Parties Of Lease Agreement","authors":"D. Polnyi","doi":"10.15330/apiclu.55.33-44","DOIUrl":"https://doi.org/10.15330/apiclu.55.33-44","url":null,"abstract":"The paper deals with the concept of measures to protect the rights of the parties of lease agreement. It is stated that in case of violation, non-recognition or challenge of the rights of lease agreement, the person against whom the illegal act was committed has the right to defend his rights independently or seek protection from one of the authorized bodies. It is emphasized that protection consists of measures of various nature. \u0000The author proved that the effectiveness of protection depends on the correctly chosen method of protection and proof of the circumstances to which the person points. It is proved that it is important to set the right goal of personal protection and choose measures aimed at achieving this goal. These arguments are confirmed by judicial practice and scientific doctrine. \u0000It is argued that non-jurisdictional safety methods, in particular self-defense, measures of operational influence, may be applied if they are provided or prohibited by law and are sufficient. Also jurisdictional safety methods must be applied when enforcement is required, or safety methods must be applied only by an authorized body. \u0000Based on the analysis of judicial practice, the criteria for the effectiveness of safety methods are established and the limits of application of safety methods are determined. Measures of judicial protection of the rights of the parties of the lease agreement has been studied. \u0000It is concluded that the limits of application of the method of protection are reflected in the legality, objectivity of application, depend on the existence of appropriate grounds and conditions, the nature of the violation, non-recognition, challenge.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114215933","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 : 2021-01-17DOI: 10.15330/apiclu.55.45-55
L. Miskevych
The publication is devoted to the study of legal and doctrinal trends in solving the issue of the subject of a land lease agreement in complex with a water object located on it. The author makes a reservation that the difficulty of clearly defining the subject of the studied treaty is due not only to the absence in the civil doctrine of a unanimous approach to understanding the essence of the subject of the treaty, but also to the natural inseparability of the water body with the land located on it. In the article, the author found that the legislative modelling of the contract, which mediates modern relations of use of the water body, was preceded by scientific studies of the features of ownership and use of this natural resource in conjunction with the land on which it is located. The author established the practical and doctrinal significance of using one contractual design for the lease of a water body and a land plot located under it. Such a legislative approach positively solves the problematic issues of the moment of acquisition of the right to lease a water object and the moment of transfer of the use object to the tenant, since the legislator connects these points with the time of state registration of the right to lease a land plot. The doctrinal effect of the application of this treaty model is manifested in the possibility of defining this contract in the system of civil law contracts, and affects the scope of application of civil, land and water legislation to the lease relations of a water body. In the publication, the author established that both natural resources - a land plot and a water object, together constitute the subject of a land lease agreement in conjunction with a water object located on it, formally correspond to the qualifying criteria of the thing as the subject of a hire (lease) agreement. The author concludes that the name of the contract model, simultaneously with the time of occurrence of the right to lease a land plot and a water object located on it, and the mandatory inclusion of a water body passport in such an agreement, make it possible to conclude that in the lease agreement of a land plot in complex with the water object located on it, it is not necessary to indicate technical data (volume and area) of the water body, since they are presented in its passport.
{"title":"The Subject Of A Land Lease Agreement In Conjunction With A Water Facility Located On It","authors":"L. Miskevych","doi":"10.15330/apiclu.55.45-55","DOIUrl":"https://doi.org/10.15330/apiclu.55.45-55","url":null,"abstract":"The publication is devoted to the study of legal and doctrinal trends in solving the issue of the subject of a land lease agreement in complex with a water object located on it. \u0000The author makes a reservation that the difficulty of clearly defining the subject of the studied treaty is due not only to the absence in the civil doctrine of a unanimous approach to understanding the essence of the subject of the treaty, but also to the natural inseparability of the water body with the land located on it. \u0000In the article, the author found that the legislative modelling of the contract, which mediates modern relations of use of the water body, was preceded by scientific studies of the features of ownership and use of this natural resource in conjunction with the land on which it is located. \u0000The author established the practical and doctrinal significance of using one contractual design for the lease of a water body and a land plot located under it. Such a legislative approach positively solves the problematic issues of the moment of acquisition of the right to lease a water object and the moment of transfer of the use object to the tenant, since the legislator connects these points with the time of state registration of the right to lease a land plot. \u0000The doctrinal effect of the application of this treaty model is manifested in the possibility of defining this contract in the system of civil law contracts, and affects the scope of application of civil, land and water legislation to the lease relations of a water body. \u0000In the publication, the author established that both natural resources - a land plot and a water object, together constitute the subject of a land lease agreement in conjunction with a water object located on it, formally correspond to the qualifying criteria of the thing as the subject of a hire (lease) agreement. \u0000The author concludes that the name of the contract model, simultaneously with the time of occurrence of the right to lease a land plot and a water object located on it, and the mandatory inclusion of a water body passport in such an agreement, make it possible to conclude that in the lease agreement of a land plot in complex with the water object located on it, it is not necessary to indicate technical data (volume and area) of the water body, since they are presented in its passport.","PeriodicalId":196689,"journal":{"name":"Actual problems of improving of current legislation of Ukraine","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130343406","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}