Pub Date : 2024-05-11DOI: 10.24144/2788-6018.2024.02.93
I. Berdnik, I. Pylypenko
The criminal law assessment of each violation of the rules and customs of war under Article 438 of the Criminal Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine) requires reference to international treaties establishing such rules. This is indicated by the disposition of this article. In turn, international treaties have a list of provisions that contain instructions on prohibitions for parties to international armed conflicts and on specific violations of the rules and customs of war. This list is quite wide, due to which problems arise during the practical application of Article 438 of the Criminal Code of Ukraine, in particular, when formulating an indictment. Serious violations of the rules and customs of war include, in particular, turning the civilian population or individual civilians into targets of attack. Establishing objective and subjective signs of this act is of scientific interest. In the norms of international humanitarian law, this violation is formulated atypically for domestic criminal legislation. In addition, there are issues of differentiation with other serious violations of the rules and customs of war, correlation with prohibitions and requirements established in the norms of international humanitarian law. In order to clarify the essence of this violation, the norms of international treaties, which are part of international humanitarian law, as well as their interrelationship, were analyzed. This made it possible to draw conclusions about the objective features by which it is possible to distinguish the analyzed violation from other homogeneous violations, for example, from committing attacks of an indiscriminate nature. Possible variants of a subjective attitude to the commission of such a violation as the transformation of the civilian population or individual civilians into an object of attack are also defined. In addition, examples from judicial practice were considered with an emphasis on ways of formulating charges under Art. 438 of the Criminal Code of Ukraine. The importance of instructions for the commission of a serious violation of an international agreement during the formulation of charges in such proceedings is emphasized and substantiated. Prospects for further research on issues related to the criminal-legal assessment of attacks on the civilian population in the context of an international armed conflict are outlined.
{"title":"The civilian population as an object of attack during an international armed conflict: a criminal-legal assessment under the national legislation of Ukraine","authors":"I. Berdnik, I. Pylypenko","doi":"10.24144/2788-6018.2024.02.93","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.93","url":null,"abstract":"The criminal law assessment of each violation of the rules and customs of war under Article 438 of the Criminal Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine) requires reference to international treaties establishing such rules. This is indicated by the disposition of this article. In turn, international treaties have a list of provisions that contain instructions on prohibitions for parties to international armed conflicts and on specific violations of the rules and customs of war. This list is quite wide, due to which problems arise during the practical application of Article 438 of the Criminal Code of Ukraine, in particular, when formulating an indictment. \u0000Serious violations of the rules and customs of war include, in particular, turning the civilian population or individual civilians into targets of attack. Establishing objective and subjective signs of this act is of scientific interest. In the norms of international humanitarian law, this violation is formulated atypically for domestic criminal legislation. In addition, there are issues of differentiation with other serious violations of the rules and customs of war, correlation with prohibitions and requirements established in the norms of international humanitarian law. \u0000In order to clarify the essence of this violation, the norms of international treaties, which are part of international humanitarian law, as well as their interrelationship, were analyzed. This made it possible to draw conclusions about the objective features by which it is possible to distinguish the analyzed violation from other homogeneous violations, for example, from committing attacks of an indiscriminate nature. Possible variants of a subjective attitude to the commission of such a violation as the transformation of the civilian population or individual civilians into an object of attack are also defined. \u0000In addition, examples from judicial practice were considered with an emphasis on ways of formulating charges under Art. 438 of the Criminal Code of Ukraine. The importance of instructions for the commission of a serious violation of an international agreement during the formulation of charges in such proceedings is emphasized and substantiated. \u0000Prospects for further research on issues related to the criminal-legal assessment of attacks on the civilian population in the context of an international armed conflict are outlined.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":" 771","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140989336","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.65
A. Basko
The article is devoted to the study of the peculiarities of the activities of local selfgovernment bodies in united territorial communities under martial law. It was established that the creation of united territorial communities is one of the essential steps aimed at the implementation of the policy of decentralization of public power, which was launched almost ten years ago, but today has a number of unresolved problems, which include: the formation of communities based on the principle of equality of rights and responsibilities and responsibility for its members; the absence of a clear division of powers between the governing bodies of the united territorial communities and village administrations regarding the financing of the restoration of damaged infrastructure facilities - water, gas, pipelines, educational and cultural institutions, medical institutions, etc.; the procedure, conditions and procedures for the distribution of budget funds and expenses between the state budget and the budget of united territorial communities; leaving certain types of taxes in the revenue part of local budgets of united territorial communities. It was determined that the main problematic issue that must be resolved during military operations and in the post-war period is the legislative consolidation of the criteria for the division of budget revenues of the local and state budget, as well as the procedure for their use and control, including the public one over their distribution and use. It has been proven that the necessary institutional basis for decentralization of power is the consolidation of the subjects of the local selfgovernment system through the creation of united territorial communities, however, the activity of united territorial communities can be effective only under the condition of ensuring their financial capacity and fiscal autonomy. On the basis of the study of the Polish model of the formation of financial resources of local self-government, the need to change the tax mechanism in Ukraine is substantiated, in particular, by assigning the tax on the income of individuals to the category of local taxes with the simultaneous rejection of the practice of legislatively establishing a wide range of benefits from its payment, as well as by establishing a standard deduction of value added tax to local budgets.
{"title":"Peculiarities of the activities of local self-government bodies in united territorial communities under martial law","authors":"A. Basko","doi":"10.24144/2788-6018.2024.02.65","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.65","url":null,"abstract":"The article is devoted to the study of the peculiarities of the activities of local selfgovernment bodies in united territorial communities under martial law. \u0000It was established that the creation of united territorial communities is one of the essential steps aimed at the implementation of the policy of decentralization of public power, which was launched almost ten years ago, but today has a number of unresolved problems, which include: the formation of communities based on the principle of equality of rights and responsibilities and responsibility for its members; the absence of a clear division of powers between the governing bodies of the united territorial communities and village administrations regarding the financing of the restoration of damaged infrastructure facilities - water, gas, pipelines, educational and cultural institutions, medical institutions, etc.; the procedure, conditions and procedures for the distribution of budget funds and expenses between the state budget and the budget of united territorial communities; leaving certain types of taxes in the revenue part of local budgets of united territorial communities. It was determined that the main problematic issue that must be resolved during military operations and in the post-war period is the legislative consolidation of the criteria for the division of budget revenues of the local and state budget, as well as the procedure for their use and control, including the public one over their distribution and use. \u0000It has been proven that the necessary institutional basis for decentralization of power is the consolidation of the subjects of the local selfgovernment system through the creation of united territorial communities, however, the activity of united territorial communities can be effective only under the condition of ensuring their financial capacity and fiscal autonomy. On the basis of the study of the Polish model of the formation of financial resources of local self-government, the need to change the tax mechanism in Ukraine is substantiated, in particular, by assigning the tax on the income of individuals to the category of local taxes with the simultaneous rejection of the practice of legislatively establishing a wide range of benefits from its payment, as well as by establishing a standard deduction of value added tax to local budgets.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":" March","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140989873","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.124
S. Horovenko
The article analyzes the international legal prerequisites, main stages, achievements, and current state of Ukraine's foreign policy in the sphere of security over the past two years. The author primarily seeks to analyze the role and consequences of implementing the strategy of small «security alliances,» which dominated in Ukraine in 2020-2021, as well as to demonstrate how this strategy transformed with the onset of full-scale armed aggression against Ukraine, considering the current challenges to Ukraine's sovereignty, territorial integrity, and independence. Furthermore, the author operationalizes the concept (system) of «treaty security» as a possible stage in expanding the system of «collective defense» formed in the Euro-Atlantic area within the framework of the North Atlantic Treaty Organization (NATO). This concept is centered around Ukraine due to its unique geopolitical location on the European continent. The Kyiv Security Oompact (2022) and the Joint Declaration of Support for Ukraine (2023) have been thoroughly analyzed by the author. The latter serves as an international legal framework defining the international legal prerequisites for forming «treaty security» as a component of the system for maintaining international peace and security, both in Ukraine and, accordingly, in the Euro-Atlantic area. Additionally, the author provides a general overview of the Agreements on Security Cooperation concluded in 2024 in implementation of the Joint Declaration of Support for Ukraine. This lays the groundwork for further scholarly analysis of these documents, their strengths and weaknesses, the international legal obligations of partner states and Ukraine, analysis of their cumulative effect, and potential threats and consequences of their implementation. Finally, this scientific work is dedicated to analyzing Ukraine's unique path, amidst its resistance and defensive measures against the armed aggression of the Russian Federation, towards joining the North Atlantic Treaty Organization in the long term, as well as examining Ukraine's efforts to build its own capabilities and ensure security until such accession occurs.
{"title":"Formation of the \"treaty security\" system of Ukraine as a component of the modern architecture of international peace and security in the Euro-Atlantic area","authors":"S. Horovenko","doi":"10.24144/2788-6018.2024.02.124","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.124","url":null,"abstract":"The article analyzes the international legal prerequisites, main stages, achievements, and current state of Ukraine's foreign policy in the sphere of security over the past two years. The author primarily seeks to analyze the role and consequences of implementing the strategy of small «security alliances,» which dominated in Ukraine in 2020-2021, as well as to demonstrate how this strategy transformed with the onset of full-scale armed aggression against Ukraine, considering the current challenges to Ukraine's sovereignty, territorial integrity, and independence. \u0000Furthermore, the author operationalizes the concept (system) of «treaty security» as a possible stage in expanding the system of «collective defense» formed in the Euro-Atlantic area within the framework of the North Atlantic Treaty Organization (NATO). This concept is centered around Ukraine due to its unique geopolitical location on the European continent. \u0000The Kyiv Security Oompact (2022) and the Joint Declaration of Support for Ukraine (2023) have been thoroughly analyzed by the author. The latter serves as an international legal framework defining the international legal prerequisites for forming «treaty security» as a component of the system for maintaining international peace and security, both in Ukraine and, accordingly, in the Euro-Atlantic area. \u0000Additionally, the author provides a general overview of the Agreements on Security Cooperation concluded in 2024 in implementation of the Joint Declaration of Support for Ukraine. This lays the groundwork for further scholarly analysis of these documents, their strengths and weaknesses, the international legal obligations of partner states and Ukraine, analysis of their cumulative effect, and potential threats and consequences of their implementation. \u0000Finally, this scientific work is dedicated to analyzing Ukraine's unique path, amidst its resistance and defensive measures against the armed aggression of the Russian Federation, towards joining the North Atlantic Treaty Organization in the long term, as well as examining Ukraine's efforts to build its own capabilities and ensure security until such accession occurs.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":" 36","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140990438","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.108
I. Berdnik, S. Tagiev
The article is devoted to law-making acts of the judicial branch of power on the example of judgments of the European Court of Human Rights (hereinafter - ECHR) and the Supreme Court (hereinafter - SC) on determining the presence or absence of provocation of a crime by law enforcement agencies or persons involved by them. The choice of these courts is justified by the authors from the point of view that the resolution of legal issues by the ECHR and the SC is of significant importance for criminal proceedings - the performance of procedural actions, and the adoption of procedural decisions by pre-trial investigation bodies, prosecutors, and courts of first instance and appeal. The authors of the study focus on how the ECHR and the Supreme Court define provocation of a crime, citing, in particular, examples from Teixeira de Castro v. Portugal, Ramanauskas v. Lithuania, Malinas v. Lithuania, Milinene v. Lithuania, Sequeira v. Portugal, Furcht v. Germany, Chokhonelidze v. Georgia, and others. The provisions of these judgments, along with the provisions of the procedural legislation of Ukraine, are considered in the article as objective factors, compliance with which should indicate the legitimacy of law enforcement agencies. At the same time, focusing on the provocation of a crime, the authors emphasise that the recognition of law enforcement agencies' actions as provocative also depends on the subjectivity of the court's position based on the assessment of evidence provided by the parties to criminal proceedings. It is established that the subjectivity of the ECHR and the SC is of a different nature. In particular, the consistency and coherence of the ECHR's position on provocation of a crime has been consistent and unchanged since 1998, while the SC has adopted diametrically opposite legal opinions in a short period of time. The authors come to the conclusion that the activities of courts, which are legally obliged to establish justice, to observe the principles of criminal proceedings such as the rule of law and legal certainty, in terms of changing approaches to the assessment of evidence should be strictly regulated at the legislative level.
{"title":"Provocation of a crime: analysis of the case law of the European Court of Human Rights and the Supreme Court","authors":"I. Berdnik, S. Tagiev","doi":"10.24144/2788-6018.2024.02.108","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.108","url":null,"abstract":"The article is devoted to law-making acts of the judicial branch of power on the example of judgments of the European Court of Human Rights (hereinafter - ECHR) and the Supreme Court (hereinafter - SC) on determining the presence or absence of provocation of a crime by law enforcement agencies or persons involved by them. The choice of these courts is justified by the authors from the point of view that the resolution of legal issues by the ECHR and the SC is of significant importance for criminal proceedings - the performance of procedural actions, and the adoption of procedural decisions by pre-trial investigation bodies, prosecutors, and courts of first instance and appeal. \u0000The authors of the study focus on how the ECHR and the Supreme Court define provocation of a crime, citing, in particular, examples from Teixeira de Castro v. Portugal, Ramanauskas v. Lithuania, Malinas v. Lithuania, Milinene v. Lithuania, Sequeira v. Portugal, Furcht v. Germany, Chokhonelidze v. Georgia, and others. The provisions of these judgments, along with the provisions of the procedural legislation of Ukraine, are considered in the article as objective factors, compliance with which should indicate the legitimacy of law enforcement agencies. \u0000At the same time, focusing on the provocation of a crime, the authors emphasise that the recognition of law enforcement agencies' actions as provocative also depends on the subjectivity of the court's position based on the assessment of evidence provided by the parties to criminal proceedings. It is established that the subjectivity of the ECHR and the SC is of a different nature. In particular, the consistency and coherence of the ECHR's position on provocation of a crime has been consistent and unchanged since 1998, while the SC has adopted diametrically opposite legal opinions in a short period of time. \u0000The authors come to the conclusion that the activities of courts, which are legally obliged to establish justice, to observe the principles of criminal proceedings such as the rule of law and legal certainty, in terms of changing approaches to the assessment of evidence should be strictly regulated at the legislative level.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":"1 7","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140988536","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.95
D.K. Vasyuta
The article examines the complex interaction between societal factors and the criminalization of manipulations in the energy market. As society evolves, so do the legislative frameworks regulating economic sectors, including energy. Understanding the social determinants underlying the criminalization of manipulations in this critical sphere is crucial for policymakers, lawyers, and practitioners. By exploring these determinants, we gain insight into how societal norms, economic structures, and regulatory mechanisms converge to shape the contours of criminality in the energy market. Through this analysis, we seek to shed light on the multifaceted dynamics informing the legal response to manipulations, ultimately contributing to more informed decision-making and a more effective regulatory framework in the energy sector. The social determinants of criminalization of manipulation in the energy market are reflected in various aspects of societal life. Primarily, it is essential to protect consumer rights and economic interests and to preserve the health and well-being of our societies. Regulation and the establishment of criminal liability in this sphere promote the establishment of fair and transparent market conditions, fostering the development of a competitive energy sector. Additionally, this reduces dependence on unstable energy resources, which can mitigate the risks of geopolitical conflicts and energy crises. Ensuring trust in government and regulatory bodies through effective counteraction to manipulation in the energy market is critically important to uphold democratic values and the rule of law. This enhances the legitimacy of government and improves citizens' perception of the activities of state institutions. Finally, criminalizing manipulation in the energy market contributes to the preservation of natural resources and the reduction of negative environmental impact.
{"title":"Social determinants of criminalization of manipulation in the energy market","authors":"D.K. Vasyuta","doi":"10.24144/2788-6018.2024.02.95","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.95","url":null,"abstract":"The article examines the complex interaction between societal factors and the criminalization of manipulations in the energy market. As society evolves, so do the legislative frameworks regulating economic sectors, including energy. Understanding the social determinants underlying the criminalization of manipulations in this critical sphere is crucial for policymakers, lawyers, and practitioners. By exploring these determinants, we gain insight into how societal norms, economic structures, and regulatory mechanisms converge to shape the contours of criminality in the energy market. Through this analysis, we seek to shed light on the multifaceted dynamics informing the legal response to manipulations, ultimately contributing to more informed decision-making and a more effective regulatory framework in the energy sector. \u0000The social determinants of criminalization of manipulation in the energy market are reflected in various aspects of societal life. Primarily, it is essential to protect consumer rights and economic interests and to preserve the health and well-being of our societies. Regulation and the establishment of criminal liability in this sphere promote the establishment of fair and transparent market conditions, fostering the development of a competitive energy sector. Additionally, this reduces dependence on unstable energy resources, which can mitigate the risks of geopolitical conflicts and energy crises. \u0000Ensuring trust in government and regulatory bodies through effective counteraction to manipulation in the energy market is critically important to uphold democratic values and the rule of law. This enhances the legitimacy of government and improves citizens' perception of the activities of state institutions. Finally, criminalizing manipulation in the energy market contributes to the preservation of natural resources and the reduction of negative environmental impact.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":"117 38","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140987689","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.43
L. V. Kholmogorova
The article examines the concept, essence and legal nature of filing a claim in a civil process. The author critically evaluates the traditional view of filing a lawsuit as one procedural action that triggers the entire mechanism of protection of violated rights, freedoms, or interests in civil proceedings. Taking into account the need to observe the established procedure for the exercise of the right to file a claim, the point of view is substantiated that the filing of a claim is a set of procedural actions that determine the realization of the specified subjective procedural right. A list of procedural actions is given, with the help of which the right to file a claim is realized in the established order: the minimum permissible procedural actions and their increased number are determined. Based on this, it is concluded that the filing of a claim in a civil process can be presented in the form of abbreviated or extended legal composition. In the latter case, it is required to perform such a set of procedural actions, which are determined by the nature of the disputed legal relationship, the stated claim and the person of the applicant. Instead, the truncated composition of the lawsuit indicates that the plaintiff has certain procedural benefits. It is indicated that all procedural actions that must be taken by the plaintiff in order to comply with the established procedure for exercising the right to file a claim are mandatory, but their number may be different, depending on the type of legal structure that determines the realization of the right to file a claim. It is noted that despite the numerous procedural actions of the plaintiff, which form the legal structure of the right to file a lawsuit, only one behavior of the plaintiff at the stage of opening a lawsuit will be of decisive importance: submitting a claim statement to the court of first instance. Without this, the previous behavior of the plaintiff (preparation of a statement of claim of the prescribed form and content, payment of a court fee, etc.) will not have legal significance, since it does not indicate the will of the person to seek legal protection.
{"title":"Filing a lawsuit as a set of procedural actions at the stage of opening a lawsuit in a civil process","authors":"L. V. Kholmogorova","doi":"10.24144/2788-6018.2024.02.43","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.43","url":null,"abstract":"The article examines the concept, essence and legal nature of filing a claim in a civil process. \u0000The author critically evaluates the traditional view of filing a lawsuit as one procedural action that triggers the entire mechanism of protection of violated rights, freedoms, or interests in civil proceedings. Taking into account the need to observe the established procedure for the exercise of the right to file a claim, the point of view is substantiated that the filing of a claim is a set of procedural actions that determine the realization of the specified subjective procedural right. \u0000A list of procedural actions is given, with the help of which the right to file a claim is realized in the established order: the minimum permissible procedural actions and their increased number are determined. Based on this, it is concluded that the filing of a claim in a civil process can be presented in the form of abbreviated or extended legal composition. In the latter case, it is required to perform such a set of procedural actions, which are determined by the nature of the disputed legal relationship, the stated claim and the person of the applicant. Instead, the truncated composition of the lawsuit indicates that the plaintiff has certain procedural benefits. \u0000It is indicated that all procedural actions that must be taken by the plaintiff in order to comply with the established procedure for exercising the right to file a claim are mandatory, but their number may be different, depending on the type of legal structure that determines the realization of the right to file a claim. \u0000It is noted that despite the numerous procedural actions of the plaintiff, which form the legal structure of the right to file a lawsuit, only one behavior of the plaintiff at the stage of opening a lawsuit will be of decisive importance: submitting a claim statement to the court of first instance. Without this, the previous behavior of the plaintiff (preparation of a statement of claim of the prescribed form and content, payment of a court fee, etc.) will not have legal significance, since it does not indicate the will of the person to seek legal protection.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":" 480","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140989801","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.122
Y.V. Yakovyh
An important role in the process of compliance with the conventional guarantees of the protection of property rights in criminal proceedings is played by the clear regulation of the norms of criminal procedural legislation in terms of the application of restrictive measures and mechanisms by pretrial investigation bodies. In particular, this article is about the need for a legislative definition of the procedure (procedure, grounds and term) of transferring property (such as vehicles) to the owner for safekeeping in order to preserve the object's safety during criminal proceedings. Current judicial practice shows that the uncertainty of the norms of the Criminal Procedure Code of Ukraine regarding the possibility of transferring the vehicle to the owner for safekeeping as part of criminal proceedings leads to an unjustified restriction of the owner's rights to peacefully own, use and dispose of his property. As a result, the safekeeping of seized or seized property, which is in improper storage in pre-trial investigation bodies or other specialized institutions, is subject to deterioration, which leads to a significant decrease in its cost price, and therefore constitutes an unlawful interference with the property owner's right to property. In this regard, the author of the article proposes to make changes to the Criminal Procedure Code of Ukraine in the part of determining which entity (investigator or judge) transfers such property to the owner, who should initiate the procedure for transferring the property to responsible storage (the owner of such property or the investigator who carries out pre-trial investigation), establish the period during which such property must be transferred to the owner, as well as provide for proper storage conditions for vehicles at open-type sites.
{"title":"Transfer of the vehicle to the owner for safekeeping in criminal proceedings: criminal procedural aspect","authors":"Y.V. Yakovyh","doi":"10.24144/2788-6018.2024.02.122","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.122","url":null,"abstract":"An important role in the process of compliance with the conventional guarantees of the protection of property rights in criminal proceedings is played by the clear regulation of the norms of criminal procedural legislation in terms of the application of restrictive measures and mechanisms by pretrial investigation bodies. In particular, this article is about the need for a legislative definition of the procedure (procedure, grounds and term) of transferring property (such as vehicles) to the owner for safekeeping in order to preserve the object's safety during criminal proceedings. Current judicial practice shows that the uncertainty of the norms of the Criminal Procedure Code of Ukraine regarding the possibility of transferring the vehicle to the owner for safekeeping as part of criminal proceedings leads to an unjustified restriction of the owner's rights to peacefully own, use and dispose of his property. As a result, the safekeeping of seized or seized property, which is in improper storage in pre-trial investigation bodies or other specialized institutions, is subject to deterioration, which leads to a significant decrease in its cost price, and therefore constitutes an unlawful interference with the property owner's right to property. In this regard, the author of the article proposes to make changes to the Criminal Procedure Code of Ukraine in the part of determining which entity (investigator or judge) transfers such property to the owner, who should initiate the procedure for transferring the property to responsible storage (the owner of such property or the investigator who carries out pre-trial investigation), establish the period during which such property must be transferred to the owner, as well as provide for proper storage conditions for vehicles at open-type sites.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":" 23","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140988364","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.5
A. Kuchuk
The relevance of the study is determined by insufficient study of the duty of children who have reached the full age to take care of disabled parents and the necessity to clarify the general and legal characteristics of this duty. It is substantiated that the basis for understanding the issue of the obligation of children who have reached the full age to take care of disabled parents should be the understanding of the legal obligation as such an appropriate behavior involving either the conscious voluntary assumption of the corresponding obligation, or the conscious consent of the person to the presence of a corresponding obligation; a legal prescription alone is not enough (such a legal prescription should be perceived by a person as necessary, just, etc.). It is emphasized that the general and theoretical understanding of the issue of the duty of children who have reached the full age to take care of disabled parents should be the basis for the sectoral regulation of relevant relations. Herewith, the basis of such consideration is the distinction between moral obligation and legal obligation (the difference between the right and an ordinary coercion). The contradictions of the legislation's provisions regarding the obligation of children who have reached the full age to take care of disabled parents in the context of legal capacity, as well as the institution of civil liability of the owner of the source of increased danger, are analyzed. The nature of the duty of children who have reached the full age to take care of disabled parents differs from the legal duty to protect the Motherland (which arises under similar conditions) is characterized. Attention is focused on the lack of full conscious perception of the first, its indefiniteness, failure to take into account individual peculiarities of implementation, etc. The expediency of taking into account of the state's social obligations when determining the content of the duty of children who have reached the full age to take care of disabled parents is noted.
{"title":"The obligation of adult children to take care of their disabled parents as a common law problem","authors":"A. Kuchuk","doi":"10.24144/2788-6018.2024.02.5","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.5","url":null,"abstract":"The relevance of the study is determined by insufficient study of the duty of children who have reached the full age to take care of disabled parents and the necessity to clarify the general and legal characteristics of this duty. It is substantiated that the basis for understanding the issue of the obligation of children who have reached the full age to take care of disabled parents should be the understanding of the legal obligation as such an appropriate behavior involving either the conscious voluntary assumption of the corresponding obligation, or the conscious consent of the person to the presence of a corresponding obligation; a legal prescription alone is not enough (such a legal prescription should be perceived by a person as necessary, just, etc.). It is emphasized that the general and theoretical understanding of the issue of the duty of children who have reached the full age to take care of disabled parents should be the basis for the sectoral regulation of relevant relations. Herewith, the basis of such consideration is the distinction between moral obligation and legal obligation (the difference between the right and an ordinary coercion). \u0000The contradictions of the legislation's provisions regarding the obligation of children who have reached the full age to take care of disabled parents in the context of legal capacity, as well as the institution of civil liability of the owner of the source of increased danger, are analyzed. \u0000The nature of the duty of children who have reached the full age to take care of disabled parents differs from the legal duty to protect the Motherland (which arises under similar conditions) is characterized. Attention is focused on the lack of full conscious perception of the first, its indefiniteness, failure to take into account individual peculiarities of implementation, etc. The expediency of taking into account of the state's social obligations when determining the content of the duty of children who have reached the full age to take care of disabled parents is noted.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":" 929","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140989256","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 : 2024-05-11DOI: 10.24144/2788-6018.2024.02.28
I.S. Pyroha, M.I. Pyroha
The constitutional foundations of local selfgovernment in Ukraine are norms-principles reflected in more than 20 articles of the Constitution of Ukraine. Norms establishing the legal, organizational, material and financial foundations of local self-government provide for the establishment of a democratic decentralized management system, based on independent territorial communities, local self-government bodies, which are entrusted with the decision of all issues of local importance. Real effective local self-government is possible only in the presence of certain conditions that have objectively developed in society, and which collectively form the basis of local self-government. The basics of local selfgovernment create the foundation, that is, the foundation on which the entire system of local self-government is built. One of the fundamental foundations of local self-government is the participation of citizens in the social and political life of the state. The topicality of the topic is due primarily to the fact that at the current stage of democratic transformation of our country, local selfgovernment is the basis of civil society. Local self-government is one of the most important institutions of a democratic state. Its development is a central scientific problem of municipal law and a "cornerstone” in municipal science for many decades, since its inception. The 1996 Constitution of Ukraine created the legal basis for the development of local self-government as a special type of public power. The article analyzes the constitutional principles that established the status of municipal power, their influence on further legislation and practice of local selfgovernment. The constitutional principles of local self-government are analyzed. The approaches available in modern jurisprudence regarding the definition of the concept of "basics of local selfgovernment” have been considered. Arguments are presented in favor of separating the organizational- legal, territorial, and material-financial bases of the activity of local self-government bodies.
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Pub Date : 2024-05-11DOI: 10.24144/2788-6018.2024.02.130
I. Lukasevych-Krutnyk
The article by Lukasevych-Krutnyk I.S. is dedicated to defining the peculiarities of the contract for the supply of energy and other resources through an attached network and its place in the system of civil contracts through the prism of the provisions of the Concept of the Renewal of the Civil Code of Ukraine. It is noted that the recodification of Book 5 of the Civil Code of Ukraine envisages a comprehensive review of the norms of individual types of contracts, introduction of new contractual constructions into the system of civil contracts, and exclusion of certain contractual obligations. However, there is no mention of the contract for the supply of energy and other resources through an attached network in the list of contractual obligations that do not correspond to the modern dynamics of contractual relations. Therefore, it is evident that the investigated contractual structure will remain in the updated version of the Civil Code of Ukraine as one of the types of purchase and sale agreements. The application of general provisions on the contract of sale to the contract for the supply of energy and other resources through an attached network is fundamental for determining the legal nature of this contract and its civil regulation. The classification of the contract for the supply of energy and other resources through an attached network as contracts for the transfer of property, namely the contract of sale, is due to the fact that under this contract, goods are transferred from one party to another. However, the contract for the supply of energy and other resources through an attached network has several features that allow it to be identified as an independent type of purchase and sale agreement. Firstly, the subject matter of the contract is electrical or thermal energy, gas, or other resources. Secondly, the method of contract performance - continuous transfer of energy and other resources to the consumer is carried out only through the attached network. Thirdly, the transfer of energy resources entails a range of rights and obligations of the parties to the contract, which are not characteristic of other types of purchase and sale agreements.
{"title":"Features of the Contract for Supply of Energy and Other Resources through an Attached Network","authors":"I. Lukasevych-Krutnyk","doi":"10.24144/2788-6018.2024.02.130","DOIUrl":"https://doi.org/10.24144/2788-6018.2024.02.130","url":null,"abstract":"The article by Lukasevych-Krutnyk I.S. is dedicated to defining the peculiarities of the contract for the supply of energy and other resources through an attached network and its place in the system of civil contracts through the prism of the provisions of the Concept of the Renewal of the Civil Code of Ukraine. \u0000It is noted that the recodification of Book 5 of the Civil Code of Ukraine envisages a comprehensive review of the norms of individual types of contracts, introduction of new contractual constructions into the system of civil contracts, and exclusion of certain contractual obligations. However, there is no mention of the contract for the supply of energy and other resources through an attached network in the list of contractual obligations that do not correspond to the modern dynamics of contractual relations. Therefore, it is evident that the investigated contractual structure will remain in the updated version of the Civil Code of Ukraine as one of the types of purchase and sale agreements. \u0000The application of general provisions on the contract of sale to the contract for the supply of energy and other resources through an attached network is fundamental for determining the legal nature of this contract and its civil regulation. The classification of the contract for the supply of energy and other resources through an attached network as contracts for the transfer of property, namely the contract of sale, is due to the fact that under this contract, goods are transferred from one party to another. \u0000However, the contract for the supply of energy and other resources through an attached network has several features that allow it to be identified as an independent type of purchase and sale agreement. Firstly, the subject matter of the contract is electrical or thermal energy, gas, or other resources. Secondly, the method of contract performance - continuous transfer of energy and other resources to the consumer is carried out only through the attached network. Thirdly, the transfer of energy resources entails a range of rights and obligations of the parties to the contract, which are not characteristic of other types of purchase and sale agreements.","PeriodicalId":227965,"journal":{"name":"Analytical and Comparative Jurisprudence","volume":"119 10","pages":""},"PeriodicalIF":0.0,"publicationDate":"2024-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140987464","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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