Pub Date : 2022-03-24DOI: 10.18523/2617-2607.2021.8.54-59
Yana Pustovoitova
The article based on the study of scientific sources and investigative practice examines the features of the search during the investigation of illegal extraction of precious stones of organogenic formation. It is noted that the search is the investigative (search) action that is carried out in almost every criminal proceeding during the investigation of illegal extraction of precious stones of organogenic formation. At the same time, the procedure is multifaceted, which is due to the need not only to achieve the task of justice but also not to restrict the rights and freedoms of citizens. It is noted that in preparation for this investigative (search) action it is mandatory to obtain information: about the persons who will be searched; about the objects you need to find; about the place where the search will be conducted.The efficiency of the organization of the tactical operation “Group Search” is argued. It is noted that if there are several places of search, it is necessary to conduct a tactical operation “Allowing a search with a negative result”.However, if the wanted persons are to be detained, a tactical operation “Search – Detention” is being carried out. The author gives the list of objects that are the object of the search and the criteria for their delimitation in the investigation of illegal extraction of precious stones of organogenic formation. Attention is paid to the tactical and organizational principles of this investigative (search) action. Several problems during searches in criminal proceedings of this category are analyzed and ways to eliminate them are suggested. Recommendations for quality evidence collection are provided. The author pays special attention to the fact that the success of the search and, ultimately, all effective and impartial pretrial investigation depends on the qualification of the investigator, timeliness of the search, use of tactics, performance of tasks.
{"title":"Certain Aspects of Search During Investigation of Illegal Extraction of Precious Organogenic Stone","authors":"Yana Pustovoitova","doi":"10.18523/2617-2607.2021.8.54-59","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.54-59","url":null,"abstract":"The article based on the study of scientific sources and investigative practice examines the features of the search during the investigation of illegal extraction of precious stones of organogenic formation. It is noted that the search is the investigative (search) action that is carried out in almost every criminal proceeding during the investigation of illegal extraction of precious stones of organogenic formation. At the same time, the procedure is multifaceted, which is due to the need not only to achieve the task of justice but also not to restrict the rights and freedoms of citizens. It is noted that in preparation for this investigative (search) action it is mandatory to obtain information: about the persons who will be searched; about the objects you need to find; about the place where the search will be conducted.The efficiency of the organization of the tactical operation “Group Search” is argued. It is noted that if there are several places of search, it is necessary to conduct a tactical operation “Allowing a search with a negative result”.However, if the wanted persons are to be detained, a tactical operation “Search – Detention” is being carried out. The author gives the list of objects that are the object of the search and the criteria for their delimitation in the investigation of illegal extraction of precious stones of organogenic formation. Attention is paid to the tactical and organizational principles of this investigative (search) action. Several problems during searches in criminal proceedings of this category are analyzed and ways to eliminate them are suggested. Recommendations for quality evidence collection are provided. The author pays special attention to the fact that the success of the search and, ultimately, all effective and impartial pretrial investigation depends on the qualification of the investigator, timeliness of the search, use of tactics, performance of tasks.","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":"45159540","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: 10.18523/2617-2607.2021.8.69-84
Mykola Khavroniuk
The article examines the problem of the content of the principle of legal certainty in relation to criminal law. Ten general requirements of this principle are defined and systematized: requirements of legal certainty of the law in the context of its form and content (accessibility; prohibition of retroactivity; stability; legitimate expectations; clarity; unambiguity; prevention of abuse due to discretion) and in the context of application and interpretation of the law (unity in the interpretation and application, availability of court decisions, their binding nature and enforceability). It is proved that the Criminal Code of Ukraine and the practice of its application do not meet all the requirements of the principle of legal certainty of the law. The methods of ensuring such compliance used during the drafting of the new Criminal Code of Ukraine are demonstrated, in particular: defining the concept of the principle of legal certainty in the Code; introduction of verification by the Plenum of the Supreme Court of amendments to the Code for compliance with this principle; establishment of time limits for amendments to the Criminal Code of Ukraine and increase of time for bringing its provisions to the population; introduction of a glossary (dictionary to the text of the Code), own unit of account and uniform amounts of damage of different types; determining the logical structure of the Code; other forms of articles of its General Part (one logical provision – one part of the article) and articles of the Special Part (one act – one paragraph of the article); 10 degrees of gravity of crimes and 10 types of sanctions (instead of the existing more than 150); typification of lists of circumstances that change the severity of crimes, and determination of the rules under which the severity of crimes changes; establishing the rules of criminal law qualification; unification of criminal remedies, such as punishment, probation, criminal record, security measures, restitution and compensation, confiscation of property and seizure of property and criminal remedies against a legal entity; typification of the grounds for release from punishment, amnesty and pardon, etc. Proposals were made to ensure this compliance by adopting the new Criminal Code of Ukraine and the Code of Administrative Offenses, and compliance with the requirement of uniform interpretation and application of the law – by maintaining in the Supreme Court a control copy of the Criminal Code of Ukraine with article-by-article materials with decisions of the panel of judges, the chamber, the joint chamber or the Grand Chamber of the Supreme Court.
{"title":"Regarding Compliance or Inconsistency of the Criminal Code of Ukraine with the Principle of Legal Certainty","authors":"Mykola Khavroniuk","doi":"10.18523/2617-2607.2021.8.69-84","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.8.69-84","url":null,"abstract":"The article examines the problem of the content of the principle of legal certainty in relation to criminal law. Ten general requirements of this principle are defined and systematized: requirements of legal certainty of the law in the context of its form and content (accessibility; prohibition of retroactivity; stability; legitimate expectations; clarity; unambiguity; prevention of abuse due to discretion) and in the context of application and interpretation of the law (unity in the interpretation and application, availability of court decisions, their binding nature and enforceability). It is proved that the Criminal Code of Ukraine and the practice of its application do not meet all the requirements of the principle of legal certainty of the law. The methods of ensuring such compliance used during the drafting of the new Criminal Code of Ukraine are demonstrated, in particular: defining the concept of the principle of legal certainty in the Code; introduction of verification by the Plenum of the Supreme Court of amendments to the Code for compliance with this principle; establishment of time limits for amendments to the Criminal Code of Ukraine and increase of time for bringing its provisions to the population; introduction of a glossary (dictionary to the text of the Code), own unit of account and uniform amounts of damage of different types; determining the logical structure of the Code; other forms of articles of its General Part (one logical provision – one part of the article) and articles of the Special Part (one act – one paragraph of the article); 10 degrees of gravity of crimes and 10 types of sanctions (instead of the existing more than 150); typification of lists of circumstances that change the severity of crimes, and determination of the rules under which the severity of crimes changes; establishing the rules of criminal law qualification; unification of criminal remedies, such as punishment, probation, criminal record, security measures, restitution and compensation, confiscation of property and seizure of property and criminal remedies against a legal entity; typification of the grounds for release from punishment, amnesty and pardon, etc. Proposals were made to ensure this compliance by adopting the new Criminal Code of Ukraine and the Code of Administrative Offenses, and compliance with the requirement of uniform interpretation and application of the law – by maintaining in the Supreme Court a control copy of the Criminal Code of Ukraine with article-by-article materials with decisions of the panel of judges, the chamber, the joint chamber or the Grand Chamber of the Supreme Court.","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":"48699000","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.20-27
A. Zaiets
The article is devoted to the elucidation of the ideological foundations of the law of the states of the early civilizations of the East, which last from the VII millennium BC (Sumer and Akkad, Babylon, India, China and Egypt). The spontaneously formed mythical, religious, moral and rational components of the worldview, as well as elements of philosophical doctrines are analyzed, traced as the unity of the notions of the gravity of sin and sinful behavior and even the community as a whole, caste character based on the idea of the inevitability of social inequality, the subordinate position of women, and significant differences in different legal systems, based on the specifics of economic structure and political system, civilizational and cultural differences, historical features of state formation, as well as worldviews of peoples, their understanding of the world, world order, natural and terrestrial laws. It is concluded that the general primary basis of the legal worldview of the peoples of the early states of the East are mythical and religious beliefs of peoples (as, incidentally, in all other early states), which served to explain the world order and justify the general laws of nature, and also served as a criterion for evaluating human actions.These ideas were based on common to all civilizations moral ideas about good and evil, justice and injustice, truth and injustice, moral and immoral. In philosophical treatises, in some literary and legal sources of the ancient East, one can find key common moral postulates that take long from the most ancient beliefs and religions and moral rules, known to science, and then reflected in Hinduism, Christianity, Islam. From the point of view of social and state ideology, the ruling elite was interested in spreading and affirming the notions of the sanctity and inviolability of the supreme power of rulers, who often combined religious and secular power. The laws of the rulers were also proclaimed by the commands of the gods, the highe rpowers, which must be strictly observed by all. This view of laws was reinforced by a system of severe punishments for violating them. Although this together helped to centralize the early states, to establish more effective protection against external enemies, and from the point of view of internal organization to keep the people firmly in subjection, it did not contribute to the development of ideals of individual freedom.
{"title":"Law Philosophical Foundations of the Early Eastern States","authors":"A. Zaiets","doi":"10.18523/2617-2607.2021.7.20-27","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.7.20-27","url":null,"abstract":"The article is devoted to the elucidation of the ideological foundations of the law of the states of the early civilizations of the East, which last from the VII millennium BC (Sumer and Akkad, Babylon, India, China and Egypt). The spontaneously formed mythical, religious, moral and rational components of the worldview, as well as elements of philosophical doctrines are analyzed, traced as the unity of the notions of the gravity of sin and sinful behavior and even the community as a whole, caste character based on the idea of the inevitability of social inequality, the subordinate position of women, and significant differences in different legal systems, based on the specifics of economic structure and political system, civilizational and cultural differences, historical features of state formation, as well as worldviews of peoples, their understanding of the world, world order, natural and terrestrial laws. It is concluded that the general primary basis of the legal worldview of the peoples of the early states of the East are mythical and religious beliefs of peoples (as, incidentally, in all other early states), which served to explain the world order and justify the general laws of nature, and also served as a criterion for evaluating human actions.These ideas were based on common to all civilizations moral ideas about good and evil, justice and injustice, truth and injustice, moral and immoral. In philosophical treatises, in some literary and legal sources of the ancient East, one can find key common moral postulates that take long from the most ancient beliefs and religions and moral rules, known to science, and then reflected in Hinduism, Christianity, Islam. From the point of view of social and state ideology, the ruling elite was interested in spreading and affirming the notions of the sanctity and inviolability of the supreme power of rulers, who often combined religious and secular power. The laws of the rulers were also proclaimed by the commands of the gods, the highe rpowers, which must be strictly observed by all. This view of laws was reinforced by a system of severe punishments for violating them. Although this together helped to centralize the early states, to establish more effective protection against external enemies, and from the point of view of internal organization to keep the people firmly in subjection, it did not contribute to the development of ideals of individual freedom.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43456029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.33-43
Vasyl Marmazov, P. Pushkar
The Ukrainian legal thought has traditionally regarded the right of access to justice as a right of access to the State court, or to State managed or controlled procedures for dispute settlement. One of the main reasons for that was that the non-state, or uncontrolled by the State dispute settlement was not formally permitted, prohibition being imposed by the Soviet system and even to a certain extent during the period of domination on parts of the territory of the modern Ukraine, of the various externally imposed requirements of various legal systems in force at the material time. Non-state dispute settlement in its traditional forms, mainly based on the custom, was also left outside the attention in the pre-Soviet times and could not find its dignified place between accessible schemes and instruments for dispute settlement. Moreover, the understanding that justice delivery for the parties to the dispute should remain within State monopoly, became commonly accepted as from 1996. The adoption of the Constitution of Ukraine to a certain extent perverted approach to settlement of conflicts, focusing on the main role for the State courts, to these ends. In particular, the courts are having “direct jurisdiction” over any dispute, this led to perception of pre-trial settlements as unnecessary, even as regards those that remained in force, notably, the commissions on labour disputes that were recognized in the case-law of the European Court as equating in legal force to binding and enforceable legal instruments. Thus, the traditional historical approach to seeing judicial examination of disputes as an exceptional step in dispute settlement, in the absence of agreement or settlement by the parties, notably through mediation, arbitration or conciliation, variousforms of third party involvement, steadily disappeared. However, alternative examination of disputes is returning back to its original standing. It is gaining its place in the discussions on the judicial reform and reform of the system for settlement of disputes. This reform is far from being finalised and possibly has not even started in practice. The new approach to settlement of disputes, aimed at breaking the principle of State monopoly on examination of disputes and seeing State dispute settlement by court as an exception, is still not firmly entrenched into the mentality of lawyers, public servants, judges, law enforcement employees and politicians in Ukraine. Thus, the article suggests and points out to importance of taking into account with these changes of a wider European perspective. Such a perspective should relate not only to theoretical and practical advantages of the non-state dispute settlement, but also provides that the privatisation of the dispute settlement procedures and breaking the state monopoly on it, is a part of wider international obligations, also being a part of the supranational legal order of the European Union. This obligation of Ukraine is also seen as part of the
{"title":"The Right of Access to Non-State Dispute Resolution in the Legal Order of Larger Europe: A Yardstick to Harmonise Approaches to State and Non-State Dispute Settlement in Ukraine","authors":"Vasyl Marmazov, P. Pushkar","doi":"10.18523/2617-2607.2021.7.33-43","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.7.33-43","url":null,"abstract":"The Ukrainian legal thought has traditionally regarded the right of access to justice as a right of access to the State court, or to State managed or controlled procedures for dispute settlement. One of the main reasons for that was that the non-state, or uncontrolled by the State dispute settlement was not formally permitted, prohibition being imposed by the Soviet system and even to a certain extent during the period of domination on parts of the territory of the modern Ukraine, of the various externally imposed requirements of various legal systems in force at the material time. Non-state dispute settlement in its traditional forms, mainly based on the custom, was also left outside the attention in the pre-Soviet times and could not find its dignified place between accessible schemes and instruments for dispute settlement. Moreover, the understanding that justice delivery for the parties to the dispute should remain within State monopoly, became commonly accepted as from 1996. The adoption of the Constitution of Ukraine to a certain extent perverted approach to settlement of conflicts, focusing on the main role for the State courts, to these ends. In particular, the courts are having “direct jurisdiction” over any dispute, this led to perception of pre-trial settlements as unnecessary, even as regards those that remained in force, notably, the commissions on labour disputes that were recognized in the case-law of the European Court as equating in legal force to binding and enforceable legal instruments. Thus, the traditional historical approach to seeing judicial examination of disputes as an exceptional step in dispute settlement, in the absence of agreement or settlement by the parties, notably through mediation, arbitration or conciliation, variousforms of third party involvement, steadily disappeared. However, alternative examination of disputes is returning back to its original standing. It is gaining its place in the discussions on the judicial reform and reform of the system for settlement of disputes. This reform is far from being finalised and possibly has not even started in practice. The new approach to settlement of disputes, aimed at breaking the principle of State monopoly on examination of disputes and seeing State dispute settlement by court as an exception, is still not firmly entrenched into the mentality of lawyers, public servants, judges, law enforcement employees and politicians in Ukraine. Thus, the article suggests and points out to importance of taking into account with these changes of a wider European perspective. Such a perspective should relate not only to theoretical and practical advantages of the non-state dispute settlement, but also provides that the privatisation of the dispute settlement procedures and breaking the state monopoly on it, is a part of wider international obligations, also being a part of the supranational legal order of the European Union. This obligation of Ukraine is also seen as part of the","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45560087","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.87-95
I. Yarosh
The author of the article describes the collisions regarding the participation of the prosecutor in the civil procedure. It is mentioned that the emergence of collisions regarding the participation of the prosecutor in the civil procedure is associated with the reform and adoption of the new civil procedure legislation, as well as the amendments to the Constitution of Ukraine. The collisions which have arisen between the Constitution of Ukraine and the Law of Ukraine “On the Prosecutor’s Office” of 2014 and the Family Code of Ukraine are described. According to the Constitution of Ukraine, the prosecutor is deprived of the function of representation of citizens, and now has the function of representing the state in the civil procedure. It is mentioned that the legislator erroneously substantiates the existence in the laws of Ukraine, which contradict the constitutional norms, of such functions of the prosecutor as the representation of citizens and protection of children’s rights by the social role of the state. The State ombudsman should perform these functions, and the state should develop the institution of the free legal aid. The author analyzes the scientific publications of the last four years and emphasizes the contradictory points in them. It is mentioned that not all scientists have consistently considered the participation of the prosecutor in the civil procedure. Today not only society but also scientists interpret the laws differently due to the shortcomings of the legislation. It is separately substantiated that the prosecutor is the official representative of the state, defending its interests in court. So the plaintiff in cases, where there is no state body that can file a lawsuit, should be the state but not the prosecutor. It is emphasized that the legislation of Ukraine regarding the participation of the prosecutor in civil proceedings has to be brought in line with the provisions of the Constitution of Ukraine. The prosecutor must perform only the functions specified in the Constitution of Ukraine. In this case, the principles of the rule of law and a democratic social state will be maintained.
{"title":"Collisions Regarding еhe Participation of the Prosecutor in Civil Procedure","authors":"I. Yarosh","doi":"10.18523/2617-2607.2021.7.87-95","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.7.87-95","url":null,"abstract":"The author of the article describes the collisions regarding the participation of the prosecutor in the civil procedure. It is mentioned that the emergence of collisions regarding the participation of the prosecutor in the civil procedure is associated with the reform and adoption of the new civil procedure legislation, as well as the amendments to the Constitution of Ukraine. The collisions which have arisen between the Constitution of Ukraine and the Law of Ukraine “On the Prosecutor’s Office” of 2014 and the Family Code of Ukraine are described. According to the Constitution of Ukraine, the prosecutor is deprived of the function of representation of citizens, and now has the function of representing the state in the civil procedure. It is mentioned that the legislator erroneously substantiates the existence in the laws of Ukraine, which contradict the constitutional norms, of such functions of the prosecutor as the representation of citizens and protection of children’s rights by the social role of the state. The State ombudsman should perform these functions, and the state should develop the institution of the free legal aid. The author analyzes the scientific publications of the last four years and emphasizes the contradictory points in them. It is mentioned that not all scientists have consistently considered the participation of the prosecutor in the civil procedure. Today not only society but also scientists interpret the laws differently due to the shortcomings of the legislation. It is separately substantiated that the prosecutor is the official representative of the state, defending its interests in court. So the plaintiff in cases, where there is no state body that can file a lawsuit, should be the state but not the prosecutor. It is emphasized that the legislation of Ukraine regarding the participation of the prosecutor in civil proceedings has to be brought in line with the provisions of the Constitution of Ukraine. The prosecutor must perform only the functions specified in the Constitution of Ukraine. In this case, the principles of the rule of law and a democratic social state will be maintained.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46782028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.28-32
Yurii Kliuchkovskyi
The article considers one of the aspects of the temporal measure of the election process: the preclusive nature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally accepted that terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed. Any actions that were to be committed during such a period have no legal consequences if they are committed after its expiration. Some election terms are recognized as preclusive by the law. The lack of a normative provision on the possibility of extending or renewing other election terms, together with the awareness that the election process is fast-paced and irreversible as well as the analogy with the terms recognized as preclusive, provides grounds for law enforcement bodies to extend this feature to all election terms. The article considers one of the aspects of the temporal measure of the election process: the preclusivenature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally acceptedthat terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed.Any actions that were to be committed during such a period have no legal consequences if they are committedafter its expiration. Some election terms are recognized as preclusive by the law. The lack of a normativeprovision on the possibility of extending or renewing other election terms, together with the awareness thatthe election process is fast-paced and irreversible as well as the analogy with the terms recognized aspreclusive, provides grounds for law enforcement bodies to extend this feature to all election terms.Judicial practice demonstrates various approaches to understanding the nature of different election terms. Although their preclusive nature is declared, it is not followed in all cases. Therefore, there exists a problem to search for a criterion that would allow to divide the terms of the implementation of certain election procedures by the relevant subjects of the election process into preclusive ones and those being mandatory but extendable. To find such a criterion, we used a comparison of two similar situations related to passive suffrage during the national elections – the nomination of a candidate and deciding regarding his registration.The difference between the conditions of the corresponding procedures is that the candidate being he holder of passive suffrage acts on his own initiative, i.e. at his own discretion submits documents for registration, while the opposite party (election commission), registering the candidate, acts on duty, having imperative power to consider these documents and make decisions on them in accordance with the requirements of the law. This is the reason for the difference in the nature of the terms for the corresponding proce
{"title":"On the Problem of Preclusive Character of Electoral Terms","authors":"Yurii Kliuchkovskyi","doi":"10.18523/2617-2607.2021.7.28-32","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.7.28-32","url":null,"abstract":"The article considers one of the aspects of the temporal measure of the election process: the preclusive nature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally accepted that terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed. Any actions that were to be committed during such a period have no legal consequences if they are committed after its expiration. Some election terms are recognized as preclusive by the law. The lack of a normative provision on the possibility of extending or renewing other election terms, together with the awareness that the election process is fast-paced and irreversible as well as the analogy with the terms recognized as preclusive, provides grounds for law enforcement bodies to extend this feature to all election terms. The article considers one of the aspects of the temporal measure of the election process: the preclusivenature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally acceptedthat terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed.Any actions that were to be committed during such a period have no legal consequences if they are committedafter its expiration. Some election terms are recognized as preclusive by the law. The lack of a normativeprovision on the possibility of extending or renewing other election terms, together with the awareness thatthe election process is fast-paced and irreversible as well as the analogy with the terms recognized aspreclusive, provides grounds for law enforcement bodies to extend this feature to all election terms.Judicial practice demonstrates various approaches to understanding the nature of different election terms. Although their preclusive nature is declared, it is not followed in all cases. Therefore, there exists a problem to search for a criterion that would allow to divide the terms of the implementation of certain election procedures by the relevant subjects of the election process into preclusive ones and those being mandatory but extendable. To find such a criterion, we used a comparison of two similar situations related to passive suffrage during the national elections – the nomination of a candidate and deciding regarding his registration.The difference between the conditions of the corresponding procedures is that the candidate being he holder of passive suffrage acts on his own initiative, i.e. at his own discretion submits documents for registration, while the opposite party (election commission), registering the candidate, acts on duty, having imperative power to consider these documents and make decisions on them in accordance with the requirements of the law. This is the reason for the difference in the nature of the terms for the corresponding proce","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44450266","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.52-60
Zoya Pogorelova
The article, based on clarifying the content of related concepts of law-making, considers the principles of the rule-making activity as the power activity of public authorities. Such principles include the principles of humanism, democracy, the rule of law, human rights, and scientific validity of rule-making decisions, which necessitates the professionalism of rule-making activities, planning, systematics, complexity, timely revision and updating of legislation, and transparency. The content of these principles is revealed, their ranking is carried out, their importance for legal science and practice is emphasized, and the positions of scientists concerning their optimal list and characteristics are analyzed. In particular, attention is drawn to the fact that the principle of humanism is reflected in the fundamental values that underlie the constitutional order, the basis of the current law and human rights enshrined in the Constitution and laws of Ukraine: human dignity, the right to self-realization, justice and freedom, non-discrimination and equality before thelaw, tolerance, responsibility and respect for others. The principle of democracy, as a fundamental principle of rule-making, legitimizes the subjects of rule-making and creates a basis for their legal activities. The rule of law is also a fundamental principle of rule-making (including its components such as the principle of direct effect of the Constitution of Ukraine, the rule of the Constitution as the Basic Law, the principle of legality, legal certainty, the equality before the law and non-discrimination, and proportionality). It is emphasized that the principle of scientific validity of rule-making decisions necessitates professionalism of rule-making activities, and ensuring a high professional level of rule-makers makes it possible to carry out rule-making activities at a high scientific level, on a planned, systematic, comprehensive basis, the legal regulation of public relations, and the implementation of state functions. Aspects of the principle of publicity of normative activity of the Parliament, the Government, and the President of Ukraine are also analyzed.
{"title":"Principles оf Regulatory Activity of Bodies State Authority","authors":"Zoya Pogorelova","doi":"10.18523/2617-2607.2021.7.52-60","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.7.52-60","url":null,"abstract":"The article, based on clarifying the content of related concepts of law-making, considers the principles of the rule-making activity as the power activity of public authorities. Such principles include the principles of humanism, democracy, the rule of law, human rights, and scientific validity of rule-making decisions, which necessitates the professionalism of rule-making activities, planning, systematics, complexity, timely revision and updating of legislation, and transparency. The content of these principles is revealed, their ranking is carried out, their importance for legal science and practice is emphasized, and the positions of scientists concerning their optimal list and characteristics are analyzed. In particular, attention is drawn to the fact that the principle of humanism is reflected in the fundamental values that underlie the constitutional order, the basis of the current law and human rights enshrined in the Constitution and laws of Ukraine: human dignity, the right to self-realization, justice and freedom, non-discrimination and equality before thelaw, tolerance, responsibility and respect for others. The principle of democracy, as a fundamental principle of rule-making, legitimizes the subjects of rule-making and creates a basis for their legal activities. The rule of law is also a fundamental principle of rule-making (including its components such as the principle of direct effect of the Constitution of Ukraine, the rule of the Constitution as the Basic Law, the principle of legality, legal certainty, the equality before the law and non-discrimination, and proportionality). It is emphasized that the principle of scientific validity of rule-making decisions necessitates professionalism of rule-making activities, and ensuring a high professional level of rule-makers makes it possible to carry out rule-making activities at a high scientific level, on a planned, systematic, comprehensive basis, the legal regulation of public relations, and the implementation of state functions. Aspects of the principle of publicity of normative activity of the Parliament, the Government, and the President of Ukraine are also analyzed.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47499375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.3-13
S. Bahirov
The article highlights the problem of inconsistency of legislative provisions on careless forms of guilt,which are contained in the General Part of the Criminal Code of Ukraine, to the constructive peculiarity ofcriminal offenses that are provided by the Special Part of this Code.The author draws attention to the problem which emerged due to the future transfer of a significantnumber of criminal offenses from the Code of Ukraine on Administrative Offenses to the book of criminaloffenses of the new Criminal Code of Ukraine. The vast majority of these offenses are constructed so as tohave a formal composition, to wit the consequences outside it. At the same time, the construction of acareless form of guilt and its varieties, recklessness and negligence, the normative models of which arecontained in the General Part of the draft Criminal Code of Ukraine, provides for a mental attitude to theconsequences.It is substantiated that the developers of the draft of the new Criminal Code of Ukraine will have todecide on one of the two directions of the system: either to completely abandon the criminalization ofinconsequent carelessness, leaving the legislative concept of carelessness covering only criminal offenseswith material composition, or to agree with the idea of presence of the inconsequent carelessness within theinstitute of criminal offense.Future problems with determining the form of guilt of criminal offenses are shown, if among theprovisions of the General Part of the projected Criminal Code of Ukraine there is a provision on the limitedpunishment of a careless behavior.The principle of constructing norms on criminal liability for careless acts is proposed, according towhich resultative careless delicts should be provided in the book of crimes, and careless offenses with aformal composition should be misdemeanors.In order to properly cover the provisions of the General Part of the future Criminal Code of Ukraine onthe carelessness of all constructive types of careless offenses, the author proposes to provide two types ofcareless form of guilt: resultative carelessness and inconsequent carelessness.Theoretical modeling of the relevant criminal law norms has been carried out, which will consolidate theinconsequent carelessness and its varieties.
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Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.44-51
A. Nikitin
The concept of criminal influence, which was introduced into the Criminal Code of Ukraine in June 2020, has been highly criticized by the scientific community and practitioners, among other things, for violation of the principle of legal certainty and the rule of law. This article defines the main disadvantages of the provisions that establish criminal liability for acts related to criminal influence and analyzes the feasibility of preservation of these provisions in their original form in the Criminal Code of Ukraine and the possibility of their transfer to the draft of the new Criminal Code of Ukraine. It is concluded that the mentioned norms should be at least substantially revised, with taking into account comments of the Ukrainian scientists, and cannot be transferred into the new criminal law as they are currently defined. Moreover, introduction of specific amendments to other laws is also required in this regard.The Working Group on the development of criminal law, as the author of the draft of the new Criminal Code, reasonably refused from the existing concept of the criminal influence. At the same time, they defined criminally punishable acts, which can be considered as a certain equivalent of the criminal influence (socalled “criminal leadership”). Provisions developed by the Working Group differ from the current by the more precise definition of specific actions, which constitute corpus delicti of criminal leadership, avoidance of jargon formulations, decrease of the terms of imprisonment for committing the relevant crimes, and diversification of criminal legal measures that can be applied to offender besides the punishment. In general, it appears that the Working Group avoided the main mistakes which are present in the current legislation. However, it is too early to draw conclusions regarding the acceptability of the proposed article of the new criminal law. Only after the draft of the new Criminal Code of Ukraine has been finished and its provisions can be analyzed altogether, final conclusions regarding the mentioned norms can be drawn.
{"title":"Criminal Influence and Feasibility of its Preservation in New Criminal Code of Ukraine","authors":"A. Nikitin","doi":"10.18523/2617-2607.2021.7.44-51","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.7.44-51","url":null,"abstract":"The concept of criminal influence, which was introduced into the Criminal Code of Ukraine in June 2020, has been highly criticized by the scientific community and practitioners, among other things, for violation of the principle of legal certainty and the rule of law. This article defines the main disadvantages of the provisions that establish criminal liability for acts related to criminal influence and analyzes the feasibility of preservation of these provisions in their original form in the Criminal Code of Ukraine and the possibility of their transfer to the draft of the new Criminal Code of Ukraine. It is concluded that the mentioned norms should be at least substantially revised, with taking into account comments of the Ukrainian scientists, and cannot be transferred into the new criminal law as they are currently defined. Moreover, introduction of specific amendments to other laws is also required in this regard.The Working Group on the development of criminal law, as the author of the draft of the new Criminal Code, reasonably refused from the existing concept of the criminal influence. At the same time, they defined criminally punishable acts, which can be considered as a certain equivalent of the criminal influence (socalled “criminal leadership”). Provisions developed by the Working Group differ from the current by the more precise definition of specific actions, which constitute corpus delicti of criminal leadership, avoidance of jargon formulations, decrease of the terms of imprisonment for committing the relevant crimes, and diversification of criminal legal measures that can be applied to offender besides the punishment. In general, it appears that the Working Group avoided the main mistakes which are present in the current legislation. However, it is too early to draw conclusions regarding the acceptability of the proposed article of the new criminal law. Only after the draft of the new Criminal Code of Ukraine has been finished and its provisions can be analyzed altogether, final conclusions regarding the mentioned norms can be drawn.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44982722","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-07-20DOI: 10.18523/2617-2607.2021.7.14-19
Denys Bykov
The article explores the problems of a temporary seizure and arrest of property in the course of pre-trial investigation in light of the case law of the Appellate Chamber of the High Anti-Corruption Court and the European Court of Human Rights. It is outlined that investigators face particular problems with differentiation of material objects that are subject to seizure upon the decision of an investigator or a prosecutor and may be used for the purposes of the criminal proceedings and those which fall into the category of temporarily seized property, and the legality of their seizure is subject to control by an investigating judge. Investigating judges face the same difficulties which result in decisions on arrest imposed on biological, biometric traces, cigarette butts and other material objects that are not subject to arrest for they do not belong to the category of property. The author analyses whether documents, personal notes, and other items of the kind may be regarded as property and the criteria to categorize them as such. It is concluded that if these items are used as evidence in the criminal proceedings but have no characteristics of property, are not objects of civil rights, have no historical, artistic, scientific, literary, economic, or any other significant value in general or for a certain individual, they are not subject to judicial control and arrest and should be attached to the criminal proceedings in accordance with the rules prescribed by the Criminal Procedural Code of Ukraine.The author pays particular attention to the unfortunate wording of Part 7 of Article 236 of the Criminal Procedural Code of Ukraine, which prescribes that seized objects and documents not included in the list of items to be found in the course of a search, contained in the decision of the investigating judge onpermission to conduct a search, are considered temporarily seized property. This legal norm makes the issue of whether certain items belong to the category of property dependent upon their inclusion in thelist or absence in the list, contained in the decision of the investigating judge. Such an approach contradicts the basic principles of the property law. Therefore, the norm should be excluded from Part 7 of Article 236 of the Code. The author also suggests to change the wording of Part 7 of Article 237 of the Code and to clearly outline that documents, as a general rule, are seized and items that fall into the category of property are temporarily seized.The suggested approach will lead to harmonization of the norms of criminal procedural law with those of civil law, setting clear and understandable criteria for defining the legal status of items seized or temporarily seized in the course of examination or search and fulfilling the tasks of effective and impartial pre-trial investigation.
{"title":"Certain Aspects of Arrest of Property in Light of the Case Law of the Appeal Chamber of the High Anti-Corruption Court","authors":"Denys Bykov","doi":"10.18523/2617-2607.2021.7.14-19","DOIUrl":"https://doi.org/10.18523/2617-2607.2021.7.14-19","url":null,"abstract":"The article explores the problems of a temporary seizure and arrest of property in the course of pre-trial investigation in light of the case law of the Appellate Chamber of the High Anti-Corruption Court and the European Court of Human Rights. It is outlined that investigators face particular problems with differentiation of material objects that are subject to seizure upon the decision of an investigator or a prosecutor and may be used for the purposes of the criminal proceedings and those which fall into the category of temporarily seized property, and the legality of their seizure is subject to control by an investigating judge. Investigating judges face the same difficulties which result in decisions on arrest imposed on biological, biometric traces, cigarette butts and other material objects that are not subject to arrest for they do not belong to the category of property. The author analyses whether documents, personal notes, and other items of the kind may be regarded as property and the criteria to categorize them as such. It is concluded that if these items are used as evidence in the criminal proceedings but have no characteristics of property, are not objects of civil rights, have no historical, artistic, scientific, literary, economic, or any other significant value in general or for a certain individual, they are not subject to judicial control and arrest and should be attached to the criminal proceedings in accordance with the rules prescribed by the Criminal Procedural Code of Ukraine.The author pays particular attention to the unfortunate wording of Part 7 of Article 236 of the Criminal Procedural Code of Ukraine, which prescribes that seized objects and documents not included in the list of items to be found in the course of a search, contained in the decision of the investigating judge onpermission to conduct a search, are considered temporarily seized property. This legal norm makes the issue of whether certain items belong to the category of property dependent upon their inclusion in thelist or absence in the list, contained in the decision of the investigating judge. Such an approach contradicts the basic principles of the property law. Therefore, the norm should be excluded from Part 7 of Article 236 of the Code. The author also suggests to change the wording of Part 7 of Article 237 of the Code and to clearly outline that documents, as a general rule, are seized and items that fall into the category of property are temporarily seized.The suggested approach will lead to harmonization of the norms of criminal procedural law with those of civil law, setting clear and understandable criteria for defining the legal status of items seized or temporarily seized in the course of examination or search and fulfilling the tasks of effective and impartial pre-trial investigation.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-07-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46152991","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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