Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.12-17
Ielyzaveta Badanova
Following its accession to the Energy Community Treaty and the conclusion of the association agreement with the EU, Ukraine implemented key EU acquis in energy by way of adoption of primary laws. They incorporate “instruments of EU legal integration,” i.e. provisions not required in the EU but included to ensure that the EU law is correctly transposed and applied in Ukraine. The Ukrainian Supreme Court in its recent jurisprudence made conclusions on legal aspects of their application, namely: on the place of EU case-law in the Ukrainian legal system, the value of opinions of the Energy Community Secretariat (ECS) as well as the obligation to conduct consultations with the European Commission and the ECS. While the acceptance of guidance from European institutions on application of EU acquis is commendable, there seems to be room for improvement in the way the Supreme Court applies principles of EU law, in particular related to the functioning of energy markets.
{"title":"EU Law in Non-EU Countries: Reflections on Ukrainian Supreme Court’s Jurisprudence on Energy Matters","authors":"Ielyzaveta Badanova","doi":"10.18523/2617-2607.2022.9-10.12-17","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.12-17","url":null,"abstract":"Following its accession to the Energy Community Treaty and the conclusion of the association agreement with the EU, Ukraine implemented key EU acquis in energy by way of adoption of primary laws. They incorporate “instruments of EU legal integration,” i.e. provisions not required in the EU but included to ensure that the EU law is correctly transposed and applied in Ukraine. The Ukrainian Supreme Court in its recent jurisprudence made conclusions on legal aspects of their application, namely: on the place of EU case-law in the Ukrainian legal system, the value of opinions of the Energy Community Secretariat (ECS) as well as the obligation to conduct consultations with the European Commission and the ECS. While the acceptance of guidance from European institutions on application of EU acquis is commendable, there seems to be room for improvement in the way the Supreme Court applies principles of EU law, in particular related to the functioning of energy markets.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43060929","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-04DOI: 10.18523/2617-2607.2022.9-10.98-107
M. Shumylo
The article examines the model cases in the field of social protection considered by the Supreme Court. Today, the Supreme Court sets trends and is at the forefront of both judicial practice and doctrinal research in the field of law. Some decisions of the cassation instance solve long-standing problems and also formulate new questions to be answered by the legislator and legal doctrine. The study classifies the legal conclusions of the Supreme Court.Analyzing the practice of the Supreme Court in terms of model proceedings, it can be said that model cases can be classified by two criteria: by the subject of the dispute and by the subject of the appeal.The research analyzes some model cases in which violations of rights in the field of social protection are stated. This made it possible to establish that the Supreme Court has not considered a single pension case on pensions under the general law. Instead, we observe a number of problematic issues in the field of special pensions. The reasons for this, in particular, are: regulations recognized as unconstitutional, low level of legal technique during rulemaking, incorrect interpretation of the law by specially authorized bodies (departments of the Pension Fund).One of the ways to overcome this crisis could be a radical reform (update) of legislation in this area with further codification of pension legislation, where special pensions would take their rightful place in a special part of such a Pension Code, which could later become one of the magnum books of the Social Code on the German model.It is emphasized that there is an objective need to introduce liability (disciplinary) for employees of the pension fund, if the illegality of their actions was established by a court decision that has entered into force – is an objective necessity.
{"title":"Model Cases as an Effective Tool for the Protection of Social Rights and Ensuring the Uniformity of Court Practice","authors":"M. Shumylo","doi":"10.18523/2617-2607.2022.9-10.98-107","DOIUrl":"https://doi.org/10.18523/2617-2607.2022.9-10.98-107","url":null,"abstract":"The article examines the model cases in the field of social protection considered by the Supreme Court. Today, the Supreme Court sets trends and is at the forefront of both judicial practice and doctrinal research in the field of law. Some decisions of the cassation instance solve long-standing problems and also formulate new questions to be answered by the legislator and legal doctrine. The study classifies the legal conclusions of the Supreme Court.Analyzing the practice of the Supreme Court in terms of model proceedings, it can be said that model cases can be classified by two criteria: by the subject of the dispute and by the subject of the appeal.The research analyzes some model cases in which violations of rights in the field of social protection are stated. This made it possible to establish that the Supreme Court has not considered a single pension case on pensions under the general law. Instead, we observe a number of problematic issues in the field of special pensions. The reasons for this, in particular, are: regulations recognized as unconstitutional, low level of legal technique during rulemaking, incorrect interpretation of the law by specially authorized bodies (departments of the Pension Fund).One of the ways to overcome this crisis could be a radical reform (update) of legislation in this area with further codification of pension legislation, where special pensions would take their rightful place in a special part of such a Pension Code, which could later become one of the magnum books of the Social Code on the German model.It is emphasized that there is an objective need to introduce liability (disciplinary) for employees of the pension fund, if the illegality of their actions was established by a court decision that has entered into force – is an objective necessity.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45515499","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 : 2022-03-24DOI: 10.18523/2617-2607.2021.8.3-16
Oleksiy Gorokh
Reforming criminal law leads to the emergence of new or improvement of existing legal institutions, which actualizes the conduct of thorough research. The purpose of the article is seen in the definition of the author’s vision of the model of the institution of release from punishment in the draft of the new Criminal Code of Ukraine. To achieve this goal using historical and legal, comparative, dialectical, systemic, hermeneutic and other methods, we critically analyzed national and foreign legislation, doctrinal provisions, and highlighted the proposals for the draft of the new Criminal Code of Ukraine.According to the results of the study, the main novelties of reforming the legal institution of release from punishment are substantiated. The considerations guided by the working group on the development of the new criminal legislation in formulating new legislative provisions are given. The necessity of changing the terminology of the institute of release from punishment is proved. The expediency of enshrining in the legislation new sub-institutions of the institute of release from punishment is substantiated: non-sentencing; non-execution of the sentencing; deferral of execution of sentencing; suspension of execution of punishment. Arguments concerning expediency of optimization of the system of types of release from punishment are resulted. It is argued that the institution of release from criminal liability is inconsistent with the principle of presumption of innocence. In this regard, the expediency of transforming this legal institution into an institution of release from punishment has been proven. The ways of systematization of types of release from punishment provided in the legislation of the criminal block are defined. The types of release from punishment have been systematized taking into account the stage of criminal proceedings. The way of solving the problem of ensuring the system of external relations of the system of types of release from punishment within the legislation of the criminal bloc is highlighted. A new vision of amnesty and pardon regulation is proposed.The urgency of improvement in the new legislation of legal regulation of the types of release from punishment tested in practice is argued: in connection with the expiration of the statute of limitations; release from serving a probation sentence; parole.Demonstrated as positive obligations of the state in the field of human rights have influenced the design of provisions on exemption from punishment for illness, parole, amnesty. Legislative proposals have been made to settle the issue of early release of convicts sentenced to life imprisonment.
{"title":"Release from Punishment under the Draft New Criminal Code of Ukraine","authors":"Oleksiy Gorokh","doi":"10.18523/2617-2607.2021.8.3-16","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.3-16","url":null,"abstract":"Reforming criminal law leads to the emergence of new or improvement of existing legal institutions, which actualizes the conduct of thorough research. The purpose of the article is seen in the definition of the author’s vision of the model of the institution of release from punishment in the draft of the new Criminal Code of Ukraine. To achieve this goal using historical and legal, comparative, dialectical, systemic, hermeneutic and other methods, we critically analyzed national and foreign legislation, doctrinal provisions, and highlighted the proposals for the draft of the new Criminal Code of Ukraine.According to the results of the study, the main novelties of reforming the legal institution of release from punishment are substantiated. The considerations guided by the working group on the development of the new criminal legislation in formulating new legislative provisions are given. The necessity of changing the terminology of the institute of release from punishment is proved. The expediency of enshrining in the legislation new sub-institutions of the institute of release from punishment is substantiated: non-sentencing; non-execution of the sentencing; deferral of execution of sentencing; suspension of execution of punishment. Arguments concerning expediency of optimization of the system of types of release from punishment are resulted. It is argued that the institution of release from criminal liability is inconsistent with the principle of presumption of innocence. In this regard, the expediency of transforming this legal institution into an institution of release from punishment has been proven. The ways of systematization of types of release from punishment provided in the legislation of the criminal block are defined. The types of release from punishment have been systematized taking into account the stage of criminal proceedings. The way of solving the problem of ensuring the system of external relations of the system of types of release from punishment within the legislation of the criminal bloc is highlighted. A new vision of amnesty and pardon regulation is proposed.The urgency of improvement in the new legislation of legal regulation of the types of release from punishment tested in practice is argued: in connection with the expiration of the statute of limitations; release from serving a probation sentence; parole.Demonstrated as positive obligations of the state in the field of human rights have influenced the design of provisions on exemption from punishment for illness, parole, amnesty. Legislative proposals have been made to settle the issue of early release of convicts sentenced to life imprisonment.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49327815","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 : 2022-03-24DOI: 10.18523/2617-2607.2021.8.92-96
I. Yatskevych
The European Court of Human Rights has already addressed certain issues caused by or connected to COVID-19 pandemic situation and numerous restrictions introduced by states to counteract virus propagation. It is necessary to mention that there are many applications pending judgments or declared inadmissible. Herewith we are going to comment on recently decided cases on the topic of COVID-19 health crisis and human rights protection. Meanwhile, there are more cases expected to be decided as many applications are pending examination by the European Court in Strasbourg.
{"title":"Human Rights and COVID-19 Pandemic Challenge: What is the ECHR Approach?","authors":"I. Yatskevych","doi":"10.18523/2617-2607.2021.8.92-96","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.92-96","url":null,"abstract":"The European Court of Human Rights has already addressed certain issues caused by or connected to COVID-19 pandemic situation and numerous restrictions introduced by states to counteract virus propagation. It is necessary to mention that there are many applications pending judgments or declared inadmissible. Herewith we are going to comment on recently decided cases on the topic of COVID-19 health crisis and human rights protection. Meanwhile, there are more cases expected to be decided as many applications are pending examination by the European Court in Strasbourg.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"338 5-6","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41309250","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 : 2022-03-24DOI: 10.18523/2617-2607.2021.8.16-25
P. Demchuk
This article addresses the problem of the possibility of exercising implicit powers of the court that are not defined by the criminal procedure law but are provided by the Constitution of Ukraine. Such dilemmas arise in cases when the court comes to the conclusion that a certain provision of the criminal law does not comply with the Constitution of Ukraine. According to the formal approach, the criminal procedure law does not give the court the power to assess the criminal law for compliance with the Constitution of Ukraine.The main hypothesis is that the conflict between a judge’s lack of power to assess the quality of criminal law and the need to ensure respect for human rights should be resolved in the light of the axiological nature of due process, namely human rights. Through this concept, the author argues that in cases where the application of the criminal law will violate the Constitution of Ukraine, the court must reasonably establish such a contradiction with the Basic Law and not apply the relevant provision. This approach requires the formulation of a methodology for the casual assessment of the constitutionality of the provisions of criminal law in order to prevent the arbitrary application of universal values and categories of constitutional law in the course of criminal proceedings.The author considers it possible to propose the following algorithm for assessing the provisions of the Criminal Code of Ukraine for compliance with the principle of legality in criminal law: literal interpretation of the provision (more than one interpretation will indicate uncertainty), analysis of its application (inconsistent practice at the cassation level indicates uncertainty). It is also necessary to assess the complexity of the area covered by the provisions of the Criminal Code of Ukraine, the possibility of eliminating doubts about its application by seeking professional advice from a lawyer. In the case of the formulation of a blanket disposition, it is necessary to additionally study the existence of powers to adopt the norm to which the criminal law refers and its certainty.
{"title":"Judge’s Discretion in Identifying Contradiction in Provisions of the Criminal Code to the Constitution of Ukraine","authors":"P. Demchuk","doi":"10.18523/2617-2607.2021.8.16-25","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.16-25","url":null,"abstract":"This article addresses the problem of the possibility of exercising implicit powers of the court that are not defined by the criminal procedure law but are provided by the Constitution of Ukraine. Such dilemmas arise in cases when the court comes to the conclusion that a certain provision of the criminal law does not comply with the Constitution of Ukraine. According to the formal approach, the criminal procedure law does not give the court the power to assess the criminal law for compliance with the Constitution of Ukraine.The main hypothesis is that the conflict between a judge’s lack of power to assess the quality of criminal law and the need to ensure respect for human rights should be resolved in the light of the axiological nature of due process, namely human rights. Through this concept, the author argues that in cases where the application of the criminal law will violate the Constitution of Ukraine, the court must reasonably establish such a contradiction with the Basic Law and not apply the relevant provision. This approach requires the formulation of a methodology for the casual assessment of the constitutionality of the provisions of criminal law in order to prevent the arbitrary application of universal values and categories of constitutional law in the course of criminal proceedings.The author considers it possible to propose the following algorithm for assessing the provisions of the Criminal Code of Ukraine for compliance with the principle of legality in criminal law: literal interpretation of the provision (more than one interpretation will indicate uncertainty), analysis of its application (inconsistent practice at the cassation level indicates uncertainty). It is also necessary to assess the complexity of the area covered by the provisions of the Criminal Code of Ukraine, the possibility of eliminating doubts about its application by seeking professional advice from a lawyer. In the case of the formulation of a blanket disposition, it is necessary to additionally study the existence of powers to adopt the norm to which the criminal law refers and its certainty.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42316222","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 : 2022-03-24DOI: 10.18523/2617-2607.2021.8.60-68
Anton Tymofeiev
The article reveals the development and functioning of the institute of special pre-trial investigation in Ukraine. The genesis of the origin and implementation of a special pre-trial investigation in the current Criminal Procedure Code is determined. The changes from April 21, 2021 to the Criminal Procedure Code of Ukraine are analyzed in order to improve the functioning of this institution in terms of grounds for execution, delivery of subpoenas, obtaining a permit for detention in absentia, etc. The aspect of delivery of subpoenas is considered, which is related to the difficulty of proving the fact of receiving subpoenas by person and the practice of the ECHR and international conventions, which partially contradict the existing procedure. The decisions of the European Court of Human Rights are described, which indicate a violation of the person’s right to defense in connection with the implementation of a special pre-trial investigation. Negative aspects of the experience regarding the interaction of investigative units with the Interpol NCB have been identified, as well as the reasons for the latter’s refusal to include persons in the Interpol NCB databases and to declare persons internationally wanted. The unresolved issues with the subject and the moment of appointment of a defense counsel during the special pre-trial investigation procedure are described, which causes difficulties and contradictory decisions of national courts in this regard. The existing issues concerning the inconsistency of legal acts, which indicate the grounds for a special pre-trial investigation and the need to determine these grounds only in the Criminal Procedure Code of Ukraine. The need to enshrine the legal obligation of the investigator or prosecutor to reopen criminal proceedings at the time of consideration of a request for a special pre-trial investigation in order to avoid the return of these requests by the investigating judge has been revealed. The positive changes in the aspect of obtaining an indefinite detention order in respect of persons subject to a special pre-trial investigation have been analyzed, which will simplify international legal assistance regarding their extradition.
{"title":"Problems of Practical Implementation of the Procedure of Special Pre-Trial Investigation (in Absentia) in Ukraine","authors":"Anton Tymofeiev","doi":"10.18523/2617-2607.2021.8.60-68","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.60-68","url":null,"abstract":"The article reveals the development and functioning of the institute of special pre-trial investigation in Ukraine. The genesis of the origin and implementation of a special pre-trial investigation in the current Criminal Procedure Code is determined. The changes from April 21, 2021 to the Criminal Procedure Code of Ukraine are analyzed in order to improve the functioning of this institution in terms of grounds for execution, delivery of subpoenas, obtaining a permit for detention in absentia, etc. The aspect of delivery of subpoenas is considered, which is related to the difficulty of proving the fact of receiving subpoenas by person and the practice of the ECHR and international conventions, which partially contradict the existing procedure. The decisions of the European Court of Human Rights are described, which indicate a violation of the person’s right to defense in connection with the implementation of a special pre-trial investigation. Negative aspects of the experience regarding the interaction of investigative units with the Interpol NCB have been identified, as well as the reasons for the latter’s refusal to include persons in the Interpol NCB databases and to declare persons internationally wanted. The unresolved issues with the subject and the moment of appointment of a defense counsel during the special pre-trial investigation procedure are described, which causes difficulties and contradictory decisions of national courts in this regard. The existing issues concerning the inconsistency of legal acts, which indicate the grounds for a special pre-trial investigation and the need to determine these grounds only in the Criminal Procedure Code of Ukraine. The need to enshrine the legal obligation of the investigator or prosecutor to reopen criminal proceedings at the time of consideration of a request for a special pre-trial investigation in order to avoid the return of these requests by the investigating judge has been revealed. The positive changes in the aspect of obtaining an indefinite detention order in respect of persons subject to a special pre-trial investigation have been analyzed, which will simplify international legal assistance regarding their extradition.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41446068","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 : 2022-03-24DOI: 10.18523/2617-2607.2021.8.42-53
V. Novozhylov
The study focuses on the issue of determination of protection from the criminal offences concept as the objective of criminal procedure. The concept of protection can be defined widely and narrowly. Protection as a wide notion means certain activities aimed at ensuring, implementing, restoring the rights and freedoms of victims or the interests of society. All criminal procedures can be considered as the action of legal protection enforcement according to this definition. Protection as a narrow notion means the activity of the subject who is external to the criminal offence aimed against this offence. The status of the person carrying out the counteraction to the offence is the criterion of differentiation between defence and protection from delinquent offence.The author analyses the current legal construct of the objective of criminal procedure “protection from crime and misdemeanour” and concluded that it is not entirely accurate due to the fact that it is impossible to establish and prove the presence of all necessary conditions of crime or misdemeanour at the time of criminal procedural counteractions is needed to be issued.Substantiation of illegality (that is the delinquent offence is prescribed directly in the Criminal Code of Ukraine) as a necessary and sufficient condition of the criminal offence which should be counteracted and eliminated to fulfil the protection as the objective of criminal procedure was provided.The possibility to use social danger as a condition for the enforcement of the protection from delinquent offences as the objective of criminal procedure is analysed. The author stated that social danger of the offence should be evaluated only by a legislative body in the process of criminal law amendments including changes in the classification of criminal offenses. The social danger evaluation of the criminal offence the illegality of which is prescribed in the Criminal Code of Ukraine is not the objective of criminal procedure in any of its stages because social danger is not a formalised notion, unlike conditions of criminal offence that are prescribed in the Criminal Code and should be proven on the trial.The author’s definition of “the protection from criminal offences as the objective of criminal procedure” is derived, according to which this is the activity of the subject who is external to the criminal offence and whose authority or rights are prescribed by criminal procedural norms or initiate the enforcement of these norms, and this activity is aimed at creation of obstacles for a certain delinquent offence the illegality of which is determined by criminal law, suppresses it, prevents or minimizes negative consequences of it.An overview of objects of protection in criminal procedure is provided. The author proposed to attribute the individual, community, society and the Ukrainian People as objects of protection from criminal offences.The author states that only certain subjects can realize the protection from the cr
{"title":"Protection from Criminal Offences as the Objective of Criminal Procedure","authors":"V. Novozhylov","doi":"10.18523/2617-2607.2021.8.42-53","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.42-53","url":null,"abstract":"The study focuses on the issue of determination of protection from the criminal offences concept as the objective of criminal procedure. The concept of protection can be defined widely and narrowly. Protection as a wide notion means certain activities aimed at ensuring, implementing, restoring the rights and freedoms of victims or the interests of society. All criminal procedures can be considered as the action of legal protection enforcement according to this definition. Protection as a narrow notion means the activity of the subject who is external to the criminal offence aimed against this offence. The status of the person carrying out the counteraction to the offence is the criterion of differentiation between defence and protection from delinquent offence.The author analyses the current legal construct of the objective of criminal procedure “protection from crime and misdemeanour” and concluded that it is not entirely accurate due to the fact that it is impossible to establish and prove the presence of all necessary conditions of crime or misdemeanour at the time of criminal procedural counteractions is needed to be issued.Substantiation of illegality (that is the delinquent offence is prescribed directly in the Criminal Code of Ukraine) as a necessary and sufficient condition of the criminal offence which should be counteracted and eliminated to fulfil the protection as the objective of criminal procedure was provided.The possibility to use social danger as a condition for the enforcement of the protection from delinquent offences as the objective of criminal procedure is analysed. The author stated that social danger of the offence should be evaluated only by a legislative body in the process of criminal law amendments including changes in the classification of criminal offenses. The social danger evaluation of the criminal offence the illegality of which is prescribed in the Criminal Code of Ukraine is not the objective of criminal procedure in any of its stages because social danger is not a formalised notion, unlike conditions of criminal offence that are prescribed in the Criminal Code and should be proven on the trial.The author’s definition of “the protection from criminal offences as the objective of criminal procedure” is derived, according to which this is the activity of the subject who is external to the criminal offence and whose authority or rights are prescribed by criminal procedural norms or initiate the enforcement of these norms, and this activity is aimed at creation of obstacles for a certain delinquent offence the illegality of which is determined by criminal law, suppresses it, prevents or minimizes negative consequences of it.An overview of objects of protection in criminal procedure is provided. The author proposed to attribute the individual, community, society and the Ukrainian People as objects of protection from criminal offences.The author states that only certain subjects can realize the protection from the cr","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47592961","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 : 2022-03-24DOI: 10.18523/2617-2607.2021.8.85-91
Roksolana Khanyk-Pospolitak, Roman Nuryshchenko
The article studies the effectiveness of the institution of dispute resolution with the participation of a judge through the analysis of legislation and judicial practice in all types of proceedings in the courts of first instance, except criminal. It is noted that since 2017, a completely new procedural institute for the settlement of disputes with the participation of a judge has appeared in procedural codes of Ukraine, except criminal, and in judicial practice thereafter. Its introduction into Ukrainian procedural law was with the intention to relieve the judicial system. However, to find out whether this institute has fulfilled the assigned intention, the analysis of judicial practice is required. Accordingly, the analysis of judicial practice has been conducted, comprising all years of existence of this institution in civil, administrative, and commercial litigation in order to determine the frequency and success rates of its application in practice. This revealed that dispute settlement with the participation of a judge in administrative proceedings barely applies. In addition, based on the analysis of one hundred cases for the last period, there are certain categories of cases where dispute settlement with the participation of a judge was used more often. Eventually, it was concluded that today the institute of dispute settlement with the participation of a judge has not been widely used and its effectiveness remains insignificant. Therefore, the institution of dispute resolution with the participation of a judge requires a great reformation – consisting of enforcement of mediation execution by judges, specific ways of resolution of cases belonging to certain categories as well as insertion of corresponding provisions in procedural codes, and popularization to the masses.
{"title":"Settlement of Disputes with the Participation of a Judge: Is This Procedure Effective?","authors":"Roksolana Khanyk-Pospolitak, Roman Nuryshchenko","doi":"10.18523/2617-2607.2021.8.85-91","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.85-91","url":null,"abstract":"The article studies the effectiveness of the institution of dispute resolution with the participation of a judge through the analysis of legislation and judicial practice in all types of proceedings in the courts of first instance, except criminal. It is noted that since 2017, a completely new procedural institute for the settlement of disputes with the participation of a judge has appeared in procedural codes of Ukraine, except criminal, and in judicial practice thereafter. Its introduction into Ukrainian procedural law was with the intention to relieve the judicial system. However, to find out whether this institute has fulfilled the assigned intention, the analysis of judicial practice is required. Accordingly, the analysis of judicial practice has been conducted, comprising all years of existence of this institution in civil, administrative, and commercial litigation in order to determine the frequency and success rates of its application in practice. This revealed that dispute settlement with the participation of a judge in administrative proceedings barely applies. In addition, based on the analysis of one hundred cases for the last period, there are certain categories of cases where dispute settlement with the participation of a judge was used more often. Eventually, it was concluded that today the institute of dispute settlement with the participation of a judge has not been widely used and its effectiveness remains insignificant. Therefore, the institution of dispute resolution with the participation of a judge requires a great reformation – consisting of enforcement of mediation execution by judges, specific ways of resolution of cases belonging to certain categories as well as insertion of corresponding provisions in procedural codes, and popularization to the masses.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42667072","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 : 2022-03-24DOI: 10.18523/2617-2607.2021.8.34-41
Y. Matvieieva
The article reveals the importance of combining the moral basis and the formal content in the nature of law. The practical significance of German legal philosopher Robert Alexy’s theory of the dual nature of law is investigated. Duality presupposes that law necessarily includes both real, or factual, and ideal, or critical, dimensions. The actual dimension is represented by elements of official origin and social efficiency, while the ideal dimension is expressed in the element of moral correctness. Accordingly, the thesis of the dual nature of law presupposes non-positivism. Importance is being increasingly attached to the question of the conformity of legal certainty and correctness of the content of norms, which is connected with the principle of justice, requiring that the decisions of the authorities are morally correct. The principles of legal certainty and justice can often conflict with each other. However, no principle can displace another one under any circumstances. On the contrary, the dual nature of law requires that both of these principles be applied in correct proportionality and be balanced. And this seems possible only in the political form of democratic or discursive constitutionalism. Constitutional rights and democracy are the main elements of constitutionalism. They are mandatory in the discursive theory and both are dual in nature. Positivism has the weaknesses of legal certainty (openness of language, the presence of conflicting norms, the dynamics of social life, etc.).But they become strong arguments for the protection of human dignity, rights and freedoms. It is the orientation of the right to its further humane development, to its “humanization”, based on the need to protect people based on justice, equality and freedom, that can be an argument filling the weaknesses of legal certainty. Then, and only then, the principle of formal legal certainty of the law is transformed into legal certainty as a component of the rule of law, which characterizes the stable and civilized development of the legal framework.
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Pub Date : 2022-03-24DOI: 10.18523/2617-2607.2021.8.26-33
Olha Kaduk
In this article the author analyzes causation with the emphasis on tort relations. Nevertheless, causation is a fundamental concept that is applicable to all areas of law, especially causation in tort relations in Ukraine is the least examined issue.The basic conceptions of causation were overlooked, in particular the “but for” test and “conditio sine gua non” which establish that causation exists only in the case act or omission is a necessary antecedent for the concrete consequences. To fulfill the requirement of causation existence between the act or omission and the consequence, such causation should be direct. However, whether the causation is direct or not in tort cases is often left to judicial activism. So the main objective of this article is to specify certain instruments which can be used to establish the existence of causation. Moreover, there are certain burdensome obstacles that complicate this objective, such as when the consequences of the unlawful act or omission are unpredictable, when causation is interrupted by the act or omission of a third independent decision-maker or when there are multiple causes, which could lead to a particular consequence. Thereby, to reach that goal many approaches used in various jurisdictions were analyzed. Firstly, the predictability principle in the contract law settled in Hadley v. Baxendale and analogues of this principle in tort law were examined. Secondly, the dependence of the presence of a causation on the nature of consequence was analyzed with the reference to the case Jolley v. Sutton LBC. Thirdly, the difficulty of establishing causation in cases when causation is interrupted by the act or omission of independent decision-maker was managed to be addressed by means of analyzing the case of European Court of Justice Kone AG and Others v. ÖBB-Infrastruktur AG. Fourthly, “materially contributing cause”, developed in Athey v. Leonati was studied in context of multiple causation. To establish the existence of causation, the factor of predictability can be used, i.e. in the current situation, the reasonable bystander, who would be in the same circumstances as the offender, would have to anticipate the occurrence of the corresponding consequences. That is why, the consequences should not be “specific” or unpredictable.In case of multiple causes, the approaches to address the issue of causation differ significantly. For example, in the Anglo-Saxon legal family in case of multiple causes, it is sufficient to prove that one of them had greater impact on the occurrence of negative consequences than the others. Whereas in the practice of national courts, it is necessary to prove that one cause directly and indirectly affected the occurrence of a negative consequence and that in the case of multiple causes of a causal link, there is no causation.Thus, in cases where it is difficult to establish a causal link, it is necessary to use the principles developed by both the national practice and the practic
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