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Legal Support For Automatic Exchange Of Tax Information According To The CRS Standard For Tax Residents Of Ukraine 乌克兰税务居民按CRS标准自动交换税收信息的法律支持
Pub Date : 2020-11-30 DOI: 10.15330/apiclu.54.101-118
D. Kosse
The article deals with the issues of legal support and an integrated legal approach to the analysis and research of issues of provision, receipt, use of tax information in relation to individuals at the interstate level. The legal grounds for the current procedures for the exchange of tax information in Ukraine and the Hellenic Republic, the existing legal possibilities for obtaining tax information on possible tax residents of the respective countries have been determined. The author analyzes the powers of banks and other financial structures to obtain tax information, the legal responsibility of taxpayers, lists of financial structures that must take part in the receipt and transmission of such information are determined. An analysis of the implementation of the Multilateral Convention on Cooperation between Competent Bodies on the Automatic Exchange of Information According to the CRS (Common Reporting Standard) standard in Ukraine and Greece shows the need for legal mechanisms and legislative actions in Ukraine to launch multilateral automatic exchange of tax information on CRS standard. Specific complexes of legal actions for the implementation of multilateral automatic exchange of tax information according to the CRS standard in Ukraine are proposed. The proposed implementations of automatic exchange of tax information will allow the regulatory authorities to fully implement the policy of objective and transparent administration of taxes from income received outside Ukraine by tax residents of Ukraine. In fact, when such an exchange functions, the regulatory authorities will have the same information as inside the country and use it for the correct administration of taxes. This approach will help implement the principles of fairness in the payment of taxes. The effectiveness of such an exchange of tax information is confirmed by the results of the implementation in Ukraine of the FATCA (Foreign Account Tax Compliance Act) on tax reporting on foreign accounts, which was adopted to combat tax evasion by US residents and is already in force in Ukraine for tax residents of Ukraine in USA and US tax residents in Ukraine.
本文讨论了法律支持问题,并采用综合法律方法分析和研究与州际层面个人有关的税收信息的提供、接收和使用问题。目前在乌克兰和希腊共和国交换税务资料的程序的法律依据,以及获取各自国家可能的税务居民的税务资料的现有法律可能性已经确定。作者分析了银行和其他金融机构获取税收信息的权力,纳税人的法律责任,确定了必须参与接收和传递这些信息的金融机构名单。通过对乌克兰和希腊《CRS(共同报告标准)税收情报自动交换多边主管机构合作公约》实施情况的分析,乌克兰需要建立相应的法律机制和立法行动,以启动CRS标准的多边税收情报自动交换。根据乌克兰的CRS标准,提出了实施多边税务信息自动交换的具体法律行动。拟议实施的税务信息自动交换将使监管当局能够充分执行对乌克兰税务居民在乌克兰境外收到的收入进行客观和透明的税收管理的政策。事实上,当这样的交换发挥作用时,监管当局将拥有与国内相同的信息,并将其用于正确的税收管理。这种做法将有助于落实公平纳税的原则。这种税收信息交换的有效性得到了FATCA(外国账户税收合规法案)在乌克兰实施的结果的证实,该法案旨在打击美国居民的逃税行为,并且已经在乌克兰对在美国的乌克兰税务居民和在乌克兰的美国税务居民生效。
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引用次数: 0
Factors And Principles Of Fair Pay 公平薪酬的因素和原则
Pub Date : 2020-11-30 DOI: 10.15330/apiclu.54.36-45
M. Pyzhova
The article covers the issues of factors influencing the formation of fair wages. The principles on which the system of guarantees of realization of the rights of workers to a fair wage should be based are considered. There are two groups of factors in the formation of wages: a) market; b) non-market or socio-legal. The first group includes: 1)     changes in supply and demand in the market of goods and services in the production of which this work is used; 2) the usefulness of the resource of the entrepreneur; 3) the elasticity of demand for labor at price; 4) interchangeability of resources; 5) change in prices for consumer goods and services. The second group includes: 1) measures of state regulation related to the establishment of the minimum wage, minimum salary, subsistence level; 2) the level of wages and conditions of employment can have a significant impact on trade union policy, the strength of the trade union movement; 3)     the final results of the enterprise and the personal contribution of the employee; 4)     the existence of a system of guarantees for the realization of employees’ rights to fair remuneration. It is pointed out that we cannot study the institution of wages in isolation from the current economic situation in the country, so we need to know what factors affect the determination of the level of wages. There are four principles on which the system of guarantees for the realization of employees’ rights to fair remuneration should be based: 1) equality of remuneration; 2)     timeliness of remuneration; 3) completeness of payment of wages; 4) fair pay. It is concluded that the proposed and analyzed factors that affect the formation of wages should be studied and taken into account during the regulatory reform of the institution of wages. In our opinion, the principles on which the system of guarantees for the realization of workers’ rights to fair remuneration should be based must be enshrined in law. It is argued that the institution of wages needs comprehensive reform. And above all, it is necessary to pay attention to the principles on which it should be built, because these are the fundamental foundations.
这篇文章涵盖了影响公平工资形成的因素。审议了保障实现工人获得公平工资权利的制度所应依据的原则。工资的形成有两组因素:a)市场;B)非市场的或社会法律的。第一组包括:1)在生产中使用该工作的商品和服务市场的供求变化;2)企业家资源的有用性;3)按价格计算的劳动力需求弹性;4)资源的互换性;5)消费品和服务价格变动。第二组包括:1)国家有关规定最低工资、最低工资、最低生活水平的措施;2)工资水平和就业条件可以对工会政策、工会运动的力量产生重大影响;3)企业的最终成果和员工的个人贡献;4)是否有保障员工公平薪酬权利实现的制度。有人指出,我们不能脱离国家当前的经济形势来研究工资制度,所以我们需要知道是什么因素影响了工资水平的决定。实现员工薪酬公平权利的保障制度应立足于四个原则:1)薪酬平等;2)报酬的及时性;(三)工资支付情况完整;4)公平薪酬。本文的结论是,提出并分析的影响工资形成的因素应该在工资制度的规制改革中加以研究和考虑。我们认为,保障实现工人获得公平报酬权利的制度所依据的原则必须载入法律。有人认为,工资制度需要全面改革。最重要的是,有必要注意建立在其上的原则,因为这些是根本的基础。
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引用次数: 0
Prior Criminal Offense As A Prerequisite For Secondary Criminal Activity 前科犯罪是二次犯罪的先决条件
Pub Date : 2020-11-30 DOI: 10.15330/apiclu.54.129-138
A.S. Mikish
In recent years, the legal literature has begun to use the concept of secondary crime, which has long been used in German criminal law and is based on the theory of involvement in a crime. An analysis of the domestic criminal law literature suggests that this concept has not yet been sufficiently disclosed by anyone. It should be noted that the problems of involvement in the crime are given much less attention than, for example, complicity. This can be explained by the fact that involvement is considered by individual scholars within the institute of complicity. The term «preceding» is intended to emphasize the fact that the commission of the main elements of a criminal offense is not possible without a previous, simultaneous or subsequent actual commission, or without a previously formed intention to commit another criminal offense. In this regard, it should be noted: speaking of «precedence», we do not mean strictly temporal dependence, when one action objectively precedes in time another, and mental-logical dependence, when one action or actually precedes another, or on at least exists in the plan to commit the latter. The previous crime is not part of the main structure of the criminal offense, remaining an independent component. Such a criminal offense only complements the feature of the main criminal offense with a special meaning, narrows it and thus describes, although in itself does not turn into a feature of this composition of the main criminal offense.
近年来,法律文献开始使用二次犯罪的概念,这一概念在德国刑法中使用已久,并建立在共犯理论的基础上。对国内刑法文献的分析表明,这一概念尚未被任何人充分披露。应当指出的是,参与犯罪的问题得到的重视远远少于诸如共谋等问题。这可以用这样一个事实来解释,即参与是由共犯研究所的个别学者考虑的。“先前”一词旨在强调这样一个事实,即如果没有先前、同时或随后的实际犯罪,或者没有先前形成的实施另一刑事犯罪的意图,就不可能实施刑事犯罪的主要要素。在这方面,应该注意到:说到“优先”,我们并不是指严格的时间依赖性,当一个行为客观地在时间上先于另一个行为时,以及心理-逻辑依赖性,当一个行为或实际上先于另一个行为时,或至少存在于实施后者的计划中。前犯不构成犯罪的主体结构,是一个独立的组成部分。这种犯罪行为只是对主犯的特征进行了特殊意义的补充,使其变窄,从而对主犯的构成进行了描述,虽然其本身并没有成为主犯构成的特征。
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引用次数: 0
General Provisions On Duties Of Company Officials In The Legislation Of Ukraine 乌克兰立法中关于公司官员职责的一般规定
Pub Date : 2020-11-30 DOI: 10.15330/apiclu.54.3-10
V. Vasylieva
The purpose of the article is to study the provisions of the current legislative acts of Ukraine, which regulate the legal status and duties of the company’s officials, compare the completeness and detail of the regulation of duties of officials for joint stock companies, limited liability companies and additional liability companies. The main methods of research applied by the author are analysis and comparison. The norms of the Civil and Commercial Codes of Ukraine, laws of Ukraine on JSC, LLC and ALC were investigated. The article explores the provisions of the proposed draft law on joint stock companies; proposals for improving the legal regulation of this issue are analyzed. The author explored that new law contains such general provisions on duties of the joint stock company officials: the officials must act in the interests of the company, within the powers granted to them by the charter of the company and the legislation; act in good faith and reason; act in a manner that, in their good faith, will contribute to achieving the goal of the company. Also new regulation is supposed to include a list of duties of officials such as: 1) the duty to facilitate the company’s achievement of successful results in accordance with this Law; 2) the duty to make independent decisions in accordance with this Law; 3) duty to act with a reasonable degree of diligence, professionalism and diligence in accordance with this Law; 4) duty to avoid conflicts of interest; 5) duty to refrain from accepting benefits (benefits) from third parties; 6) duty of notification about the interest in the company’s agreement. The author expressed positive comments on certain proposed changes, such as establishing a list of duties for officials of the joint stock company and determining the responsibility for these duties breaking, as well as negative comments on law drafting technique, vague concepts and providing the possibility of an exceptional approach towards responsibility for duties breach.
本文的目的是研究乌克兰现行立法中对公司高管法律地位和职责的规定,比较股份公司、有限责任公司和附加责任公司对高管职责规定的完备性和细节性。本文采用的主要研究方法是分析和比较。考察了乌克兰民商法典的规范,乌克兰关于JSC、LLC和ALC的法律。本文探讨了股份公司法草案关于股份公司法的规定;分析了完善这一问题法律规制的建议。笔者探讨了新法律对股份公司高管职责的一般规定:高管必须在公司章程和法律赋予的职权范围内为公司利益行事;本着诚信和理性行事;以一种善意的方式行事,将有助于实现公司的目标。此外,新法规还应包括官员的职责清单,例如:1)根据本法规定促进公司取得成功成果的责任;(二)依照本法有独立决定的义务;(三)依照本法规定,有合理勤勉、专业、勤勉的义务;4)避免利益冲突的义务;5)不接受第三方利益(利益)的义务;6)公司协议中利益的告知义务。笔者对设立股份公司管理人员职责清单、确定违反职责责任等修改意见给予积极评价,对法律起草技术、概念模糊、提供违反职责责任例外处理方式的可能性给予消极评价。
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引用次数: 0
Analysis Of The Punishment Of Penalties By Courts For Wrongful Death During Violation Of Rules Of Road Safety Or Operation Of Transport 对违反道路安全或交通运输规则致人过失死亡的法院处罚的处罚分析
Pub Date : 2020-11-30 DOI: 10.15330/apiclu.54.118-128
T. Lutskyi
The article covers the methodology and results of the analysis of sentencing for violation of traffic safety rules or operation of transport by persons who drive vehicles which caused caused the death of the victim or death (Part 2 and part 3 of Article 286 of the Criminal Code of Ukraine). The ratio of the type and amount of punishment imposed by courts under this articleі of the Criminal Code of Ukraine on the basis of sentences passed by courts during 2019 is given. The appointment of the courts under the sanction of Part 2 and 3 of Article 286 of the Criminal Code of Ukraine of each of the types of penalty is analyzed. The author outlined the main aspects in the using of these types of punishments by the courts. The article also reveals the characteristics of the application by the courts of the provisions of Articles 69 and 75 of the Criminal Code of Ukraine. Among other things, the author examined the state of application by the courts of additional punishment in the form of deprivation of the right to drive vehicles. According to the results, such an additional punishment in 2019 was applied by courts in less than half of the analyzed sentences. All court verdicts for 2019, contained in the Unified State Register of court decisions rendered in respect of crimes under Part 2 and Part 3 of Art. 286 of the Criminal Code of Ukraine, which resulted in negligent death of another person. In addition, the author of the article suggested possible solutions to the problem, which are likely to arise as a result of the mandatory deprivation of the right to drive vehicles. According to the results of the analysis, the author identified the problems that arise when sentencing courts under Part 2 and part 3 of Art. 286 of the Criminal Code of Ukraine and suggested possible ways to solve them. It also covers the expediency of release by a court from serving a sentence of reprimand for negligent death of a person as a result of violation of traffic safety rules and operation of transport, as well as the imposition of a milder punishment than provided by law.
该条涉及对驾驶车辆的人违反交通安全规则或运输操作造成受害人死亡或死亡的量刑分析的方法和结果(《乌克兰刑法》第286条第2部分和第3部分)。根据2019年法院作出的判决,给出了法院根据《乌克兰刑法》本条判处的刑罚类型和数额的比例。在《乌克兰刑法》第286条第2和第3部分的制裁下,对每一种刑罚类型的法院的任命进行了分析。作者概述了法院使用这类刑罚的主要方面。该条还揭示了法院适用《乌克兰刑法》第69条和第75条规定的特点。除其他事项外,提交人审查了法院以剥夺驾驶车辆权利的形式实施额外惩罚的情况。结果显示,在2019年的分析判决中,法院适用这种追加处罚的不到一半。《乌克兰刑法》第286条第2部分和第3部分规定的导致他人过失死亡的罪行的法院判决统一国家登记册》中所载的2019年所有法院判决。此外,这篇文章的作者还提出了解决这一问题的可能办法,因为强制剥夺驾驶车辆的权利很可能导致这一问题。根据分析的结果,发件人指出了根据《乌克兰刑法》第286条第2部分和第3部分对法院量刑时出现的问题,并提出了解决这些问题的可能方法。它还涵盖了法院对因违反交通安全规则和运输操作而造成的过失死亡而判处的谴责刑罚的刑罚免除执行的权宜性,以及施加比法律规定更轻的惩罚。
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引用次数: 0
Formation And Development Of Constitutional And Legal Responsibility In The Ukrainian Lands In The Lithuanian-Polish Period 立陶宛-波兰时期乌克兰土地上宪法和法律责任的形成与发展
Pub Date : 2020-11-30 DOI: 10.15330/apiclu.54.169-180
V. Knysh
The article examines the peculiarities of the genesis and further development of constitutional and legal responsibility in the Ukrainian lands in the Lithuanian- Polish era. The author’s conviction that during the Lithuanian-Polish period in the Ukrainian lands the main administrative tendencies and sources of law of this period influenced the formation and development of the institution of constitutional and legal responsibility in the Ukrainian lands. To such features of the investigated type of responsibility, it is necessary to carry a number of features. The first of them was a combination of centralization and decentralization in the field of positive constitutional and legal responsibility and the implementation of state policy between the Grand Duke of Lithuania and local princes in the fourteenth century. In this case, the relationship between the Grand Duke and local princes were vassal. Local princes had broad autonomy in internal affairs, but, at the request of the Grand Duke, had to participate in military campaigns with his army and pay tribute. Thus, the centralizing tendencies of responsibility concerned the Grand Duke of Lithuania and were reduced to positive responsibility for the military-defence sphere and national taxes. As for the decentralization principles of responsibility, it was the sphere of local princes, which was reduced to broad internal powers in the lands under their control. The second significant feature was the centralization of power and the growing role of constitutional and legal responsibility of the Grand Duke during the fifteenth century with a simultaneous narrowing of the powers and responsibilities of local princes. In particular, the Privilege of 1434 finally consolidated the loss of state rights of local princes and turned them into subjects of the Grand Duke. The third feature was the redistribution of the principles of positive constitutional and legal responsibility based on caste-representative principles, the priority of collegial (collective) responsibility over individual. This was manifested in the fact that at the end of the fifteenth century. Century expanded the competence of the lords of the council, which was formed of the most influential vassals of the Grand Duke (princes, magnates, boyars, lords, including Ukrainian, church hierarchs) and acted initially as an advisory body. In particular, under the privilege of 1492, the prince decided the most important state affairs together with the gentlemen-advisers. This included issues of foreign policy, the issuance and repeal of laws, the appointment and dismissal of senior government officials, the implementation of expenditures from the state treasury, court decisions. The privilege of 1506 further strengthened the legal position of the council. Now, if the opinions of the gentlemen-advisers did not coincide with the views of the prince, the latter had to obey the council. In the absence of the Grand Duke, the council was to govern all
本文考察了立陶宛-波兰时代乌克兰土地上宪法和法律责任的起源和进一步发展的特点。提交人确信,在乌克兰土地上的立陶宛-波兰时期,这一时期的主要行政倾向和法律渊源影响了乌克兰土地上宪法和法律责任制度的形成和发展。对这类特征的责任追究类型,有必要附带若干特征。第一个是14世纪立陶宛大公和地方诸侯之间在积极的宪法和法律责任领域的集权和分权的结合以及国家政策的实施。在这种情况下,大公与地方诸侯的关系是附庸关系。地方诸侯在内部事务上有广泛的自治权,但在大公的要求下,必须随他的军队参加军事行动并进贡。因此,责任的集中倾向涉及立陶宛大公,并减少到对军事防御领域和国民税收的积极责任。至于责任的分散原则,是地方王公的范围,在他们控制的土地上,它被缩减为广泛的内部权力。第二个显著特征是十五世纪权力的集中以及大公在宪法和法律责任上的日益重要的作用与此同时,地方王公的权力和责任也在缩小。特别是《1434年特权法》最终巩固了地方诸侯丧失的国家权利,使他们成为大公的臣民。第三个特点是根据种姓代表原则重新分配积极的宪法和法律责任原则,集体(集体)责任优先于个人。这在15世纪末的事实中得到了体现。世纪扩大了议会领主的权限,该委员会由大公最有影响力的诸侯(王子,大亨,波雅尔,领主,包括乌克兰人,教会等级)组成,最初作为一个咨询机构。特别是,在1492年的特权下,王子与绅士顾问一起决定最重要的国家事务。这包括外交政策、法律的颁布和废除、高级政府官员的任命和解雇、国家财政支出的执行、法院判决等问题。1506年的特权进一步加强了议会的法律地位。现在,如果顾问们的意见与君主的意见不一致,君主就必须服从御前会议。在大公缺席的情况下,议会将管理所有的内政和外交政策——包括宣战权。1529年立陶宛法令承认大自由议会为国家机构。作为代议制议会机构的seima的形成一直持续到16世纪中叶。如果一开始是地方行政长官和几个贵族进入国会,那么从1564年开始,贵族开始从县选举两名代表进入国会。所研究的这一时期的第四个特点是联邦议会在立法活动和国际关系方面的权力和宪法责任的扩大,同时在1569年卢布林联盟下减少了联邦国王的这种责任范围。
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引用次数: 0
Legal Education In Higher Educational Establishments Of The Ministry Of Internal Affairs Of Ukraine: Pro E Contra 乌克兰内务部高等教育机构的法律教育:Pro E Contra
Pub Date : 2020-11-30 DOI: 10.15330/apiclu.54.139-149
Yu.D. Nikitina, Y. Balan, N. Lashchuk
The pros and cons arguments of the possibility of granting legal education to the students on the speciality “Law” in the higher educational establishments with specific learning conditions are considered in the article. There are the following options: 1) the possibility of training on the speciality “Law Enforcement” of investigators, interrogating officers, operatives employees, forensic scientists for the needs of the national police or other public authorities exclusively; 2) the possibility of training on the speciality “Law Enforcement” of investigators, interrogating officers, operatives employees, forensic scientists for the needs of the national police or other public authorities exclusively, but at the same time training of “broad” lawyers on the speciality “Law” at the expense of individuals and legal entities; 3) the possibility of training both on the specialities “Law Enforcement” and “Law” of investigators, interrogating officers, operatives employees, forensic scientists for the needs of the national police or other public authorities and “broad” lawyers on the speciality “Law” at the expense of individuals and legal entities. It is stated that legal education of lawyers in higher educational establishments with specific learning conditions is not only possible but also appropriate. Legislative restriction of the range of educational institutions that can train lawyers leads to a lack of competition as competition is the key to improving quality of education.
本文就高等学校对“法学”专业学生进行具有特定学习条件的法学教育的可能性进行了正反两方面的论证。有以下选择:1)可能针对国家警察或其他公共当局的需要专门对调查人员、审讯人员、特工雇员、法医科学家进行“执法”专业培训;2)是否有可能专门为国家警察或其他公共当局的需要对调查人员、审讯人员、特工雇员、法医进行“执法”专业培训,但同时以牺牲个人和法律实体为代价对“广义”律师进行“法律”专业培训;3)以牺牲个人和法律实体为代价,为国家警察或其他公共当局的需要培训调查人员、审讯人员、特工雇员、法医科学家和“广义”律师在“法律”专业方面的“执法”和“法律”专业的可能性。指出在具有特定学习条件的高等院校对律师进行法学教育不仅是可能的,而且是适当的。由于竞争是提高教育质量的关键,立法限制了能够培养律师的教育机构的范围,导致缺乏竞争。
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引用次数: 1
Systematization Of Functions Of Criminal Law Policy 论刑法政策职能的系统化
Pub Date : 2020-02-28 DOI: 10.15330/apiclu.52.22-30
I. Kozych
The author argues that the policy in the field of combating crime as a component of state legal policy ensures the implementation of certain functions on the basis of the relevant principles. Anti-crime policy performs a number of functions inherent in politics in general. In particular, the integrative function ensures the unity, integrity and stability of society. The managerial and regulatory function is that the policy expresses the socially significant interests of all segments of society by defining specific goals and objectives of the relevant bodies. The function of rationalization forms the tactical and strategic goals of society, determines effective methods of their implementation. The function of innovation is to respond to anti-crime policies to new forms of social life using appropriate dynamic methods and techniques. The function of resource mobilization ensures the use of appropriate efforts to address the tasks assigned to the studied policy area (and, accordingly, the effectiveness of policy implementation in the field of combating crime in general). The human rights function is aimed at criminal law protection of human rights and freedoms. The function of political socialization «includes» people, public organizations in the world of criminal law regulation and protection, giving them various opportunities to influence the implementation of criminal law policy. The author points to the survival of the following formative (incoming) functions of criminal law policy: 1) the function of forming a request; 2) the function of determining resources. Among the implementation («initial») functions of criminal law policy should be noted: 1) rule-making function, 2) rule-making function, 3) control function. Service functions are: 1) interpretive function; 2) information and communication function.
作者认为,作为国家法律政策组成部分的打击犯罪政策确保了在相关原则的基础上实现某些功能。一般来说,反犯罪政策具有许多政治固有的功能。特别是整合功能,保证了社会的团结、完整和稳定。管理和监管功能是,政策通过确定有关机构的具体目标和目的,表达了社会各阶层的重大社会利益。合理化的功能形成了社会的战术和战略目标,决定了实现这些目标的有效方法。创新的功能是使用适当的动态方法和技术对反犯罪政策作出反应,以适应新的社会生活形式。调动资源的职能确保利用适当的努力来处理分配给所研究的政策领域的任务(从而确保在一般打击犯罪领域执行政策的有效性)。人权职能是刑法对人权和自由的保障。政治社会化的功能“包括”人、社会组织在刑法领域的调节和保护,使他们有各种机会影响刑法政策的实施。笔者指出刑法政策的形成(传入)功能的存在:1)形成请求功能;2)确定资源的功能。刑法政策的执行(“初始”)功能应注意:1)规则制定功能,2)规则制定功能,3)控制功能。服务功能有:1)解释功能;2)信息通信功能。
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引用次数: 0
The Representation Of Interests In The Mechanism For The Legal Regulation Of Environmental Relations: Certain Aspects 环境关系法律规制机制中的利益代表:若干方面
Pub Date : 2019-08-06 DOI: 10.15330/apiclu.51.88-99
H. V. Moroz
The article is aimed at studying the legal means (ways) of representing (formalizing) interests in the mechanism for the legal regulation of environmental relations. The conclusion is reached that it deems reasonable to pose a question about an optimal correlation between interests, i.e. about their sound compromise, not a balance between them, since the latter requires balancing them out which is neither factually, nor legally possible. One characteristic feature of environmental law is its simultaneous use of a permit-based way of the legal regulation by granting the corresponding rights and introducing prohibitions. It contributes to developing a rigid model of the behaviour between the subjects of environmental relations. One of the criteria determining the degree of the efficiency of the mechanism for the legal regulation of a certain type of relations is, among others, taking a full account of the interests of the subjects of this type of relations by means of representing (formalizing) these interests in legislation, their juridization. There exist several ways aimed at formalizing environmental interests: 1) permits, concerning only citizens and public unions, i.e the powers provided for by the environmental rights of the subjects of environmental law; 2) obligations - prescriptions binding on persons to be fulfilled, designed for state authorities, subjects of economic relations, citizens and their unions; 3) proscriptions. All of the components of the environmental law mechanism described in the article are complex in terms of their procedure and, in fact, constitute the public law mechanism being aimed at ensuring mostly public environmental interests. Furthermore, its implementation will definitely involve influencing private, often nonenvironmental interests, which should also be taken into consideration. This is what constitutes the very purpose of the environmental law mechanism as a comprehensive coherent system of normatively established measures and requirements, actions and processes aimed at gradually and effectively achieving the objectives of environmental law. This objective lies in developing environmental law and order as a guarantee for the fulfillment of the constitutional environmental rights and nature conservation, including the objective of conserving biodiversity. Considering the dynamic nature of the development of environmental and other relations with regard to the possibility of the direction of the interests of the subjects of these relations being changed, it deems necessary to reconsider the nature and content of those legal means that constitute the environmental law mechanism.
本文旨在研究在环境关系法律规制机制中,利益代表(形式化)的法律手段(途径)。得出的结论是,它认为提出一个关于利益之间的最佳关联的问题是合理的,即关于它们之间的合理妥协,而不是它们之间的平衡,因为后者需要平衡它们,这既不是事实,也不是法律上可能的。环境法的一个特点是同时采用以许可为基础的法律规制方式,赋予相应的权利并引入相应的禁止。它有助于发展环境关系主体之间行为的严格模型。决定某种类型关系的法律规制机制效率程度的标准之一是,除其他外,通过在立法中代表(形式化)这些利益,将这些利益合法化,充分考虑到这种类型关系的主体的利益。有几种方式旨在使环境利益正式化:1)许可,只涉及公民和公共联盟,即环境法主体的环境权利所规定的权力;(2)义务——为国家权力机关、经济关系主体、公民及其联盟制定的对必须履行的人具有约束力的规定;3)施用。本文所述的环境法律机制各组成部分在程序上都是复杂的,实际上构成了以保障公众环境利益为主要目的的公法机制。此外,它的实施肯定会影响私人利益,通常是非环境利益,这也应该考虑在内。这正是环境法机制的目的所在,它是一个全面连贯的系统,包括规范制定的措施和要求、行动和程序,旨在逐步和有效地实现环境法的目标。这一目标在于发展环境法律和秩序,以保障宪法环境权利和自然保护的实现,包括保护生物多样性的目标。考虑到环境和其他关系发展的动态性质,以及这些关系主体的利益方向可能发生变化,我们认为有必要重新考虑构成环境法机制的那些法律手段的性质和内容。
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引用次数: 0
Historical Aspects Of Constitutional Responsibility In Ukrainian Lands In 1917-1920 1917-1920年乌克兰土地上宪法责任的历史方面
Pub Date : 2019-08-06 DOI: 10.15330/apiclu.51.213-221
V. Knysh
The article explores the main aspects of legal consolidation of constitutional legal responsibility on Ukrainian lands in 1917-1920. In this case, the main attention is paid to the legislation of the Ukrainian People’s Republic (UNR) on this issue. On the author’s conviction, the responsibility of state authorities and local selfgovernment of the UPR was characterized by the following features: 1)     the consolidation at the level of the Constitution of the general and specific features of the constitutional and legal responsibility of the parliament of the UPR (NationalAssembly ofthe UPR). In particular, the common features ofthe constitutional legal responsibility of the Parliament of the UPR are their clear correspondence with the main functions: law-making (responsibility for the exercise of the functions of the legislative power) and personnel (constitutional and legal responsibility for the formation of executive and judicial authorities). Specific features of constitutional legal responsibility were expressed in the functions of exclusive constitutional rulemaking (amending the Constitution of the UPR by at least 3/5 of the votes of the present deputies; the authority to approve political and economic treaties concluded in the name of the UPR and to be responsible for their content and execution); economic and fiscal functions (the impossibility of collecting taxes without a decision of the National Assembly; the impossibility of establishing loans and pledging state property without a resolution of the National Assembly) emergency functions (responsibility for the National Assembly to form troops and law enforcement agencies of the state, for declaring war and peace) 1)    legal consolidation in relation to the government (Council of People’s Ministers) of sole retrospective (negative) constitutional legal responsibility, which provides for constitutional legal sanctions against the ministers themselves, as well as collective retrospective (negative) constitutional legal responsibility, which provides for constitutional legal sanctions against the entire government; 2)    Determination of constitutional legal responsibility (both positive and negative) for the administration of justice in the state by the General Court of the UPR; 3)    approval of the constitutional and legal responsibility of local authorities for the control function of the ministers of the UPR in relation to the elected Councils and Administrations of communities, volosts and lands, as well as through the jurisdictional function of the justice authorities; 4)    Conditionality of the constitutional and legal responsibility of the autonomous rights of national Unions with the exclusive competence of the National Unions and bodies representing them with functions of a fiscal and economic nature. So, the basic principles of competence and constitutional legal responsibility of the organs of state power and local self-government of the UPR according to the Constit
本文探讨了1917-1920年乌克兰土地上宪法法律责任法律巩固的主要方面。在这种情况下,主要注意的是乌克兰人民共和国(UNR)关于这个问题的立法。根据作者的信念,国家当局和地方自治政府对普遍定期审议的责任具有以下特点:1)在宪法层面巩固了普遍定期审议议会(普遍定期审议国民大会)的宪法和法律责任的一般和具体特点。特别是,普遍定期审议中议会的宪法法律责任的共同特征是它们与主要职能的明确对应:立法(行使立法权职能的责任)和人事(组建行政和司法当局的宪法和法律责任)。宪法法律责任的具体特征体现在专门的宪法规则制定职能中(以至少3/5的现任代表投票修改普遍定期审议的宪法;有权批准以普遍定期审议的名义缔结的政治和经济条约,并对其内容和执行负责);经济和财政职能(没有国会的决定就不可能征税;没有国会的决议就不可能提供贷款和抵押国有财产)紧急职能(国会组建国家军队和执法机构的责任,宣布战争与和平的责任)1)与政府(人民部长会议)有关的法律巩固,只有追溯的(消极的)宪法法律责任;它规定了对部长本身的宪法法律制裁,以及集体追溯(负面)宪法法律责任,这规定了对整个政府的宪法法律制裁;2)由普遍定期审议的普通法院确定国家司法行政的宪法法律责任(正面和负面);3)批准地方当局的宪法和法律责任,以监督普遍定期审议部长对选举产生的理事会和社区、州和土地行政当局的控制职能,并通过司法当局的管辖职能;(四)国家联盟的自治权的宪法和法律责任具有条件性,国家联盟和代表它们行使财政和经济职能的机构具有专属权限。因此,普遍定期审议宪法规定的国家权力机关和地方自治机关职权和宪法法律责任的基本原则,与三权分立原则等主导原则密切相关,是民主国家、社会国家和法治国家的相应模式。还应该指出的是,在乌克兰宪政发展的现阶段,对宪法法律责任基础(以及乌克兰宪法的其他机构)的规范性巩固不仅应该基于当前国家和立法的需要,而且应该基于乌克兰土地上早期存在的某些积极的历史和法律传统。
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Actual problems of improving of current legislation of Ukraine
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