Pub Date : 2019-02-28DOI: 10.18523/2617-2607.2020.5.25-31
S. Katynska
The article addresses the problems of palliative care in Ukraine. It has provided a characteristic of existing regulations in this field. In the legislation of Ukraine it is defined that palliative care is provided at the latest stages of incurable diseases and it includes a set of measures aimed at alleviating the physical and emotional suffering of patients, as well as providing psychosocial and moral support to members of their families. One of the most actual problems is receiving narcotic pain medication. Narcotic analgesics are drugs of strict accountability. Painkillers in Ukraine are not registered in tablets, plasters. Therefore, palliative patients depend on injection drug administration. It’s a fact that in foreign countries Medicinal Cannabis is used for anesthesia and the treatment of certain diseases. This substance is banned in Ukraine. Public organizations are trying to initiate a law that would legalize this drug for the use in medicine. The next actual problem is psychological support of patients. It is noted that palliative patients and their families need psychological and spiritual support. A foreign experience has been analyzed in this field. The Agency for Healthcare Research and Quality in the USA has founded a special curriculum for doctors. The aim is to improve understanding of the basic principles of palliative care. It is possible to arrange upgrading courses, read necessary lectures or print literature and appropriate brochures for healthcare professionals. It suggests an improvement in the education of palliative workers on the basis of higher education. There is a problem with the lack of staff in the hospices of Ukraine. This profession is not popular and employees of hospices have a small salary. Still, this work is responsible and nervous. The article also presents an analysis of the trends and the development of laws in the field of palliative care in Ukraine. Manuscript received 28.02.2019
{"title":"Legal Aspects of Palliative Care in Ukraine","authors":"S. Katynska","doi":"10.18523/2617-2607.2020.5.25-31","DOIUrl":"https://doi.org/10.18523/2617-2607.2020.5.25-31","url":null,"abstract":"The article addresses the problems of palliative care in Ukraine. It has provided a characteristic of existing regulations in this field. In the legislation of Ukraine it is defined that palliative care is provided at the latest stages of incurable diseases and it includes a set of measures aimed at alleviating the physical and emotional suffering of patients, as well as providing psychosocial and moral support to members of their families. One of the most actual problems is receiving narcotic pain medication. Narcotic analgesics are drugs of strict accountability. Painkillers in Ukraine are not registered in tablets, plasters. Therefore, palliative patients depend on injection drug administration. It’s a fact that in foreign countries Medicinal Cannabis is used for anesthesia and the treatment of certain diseases. This substance is banned in Ukraine. Public organizations are trying to initiate a law that would legalize this drug for the use in medicine. The next actual problem is psychological support of patients. It is noted that palliative patients and their families need psychological and spiritual support. A foreign experience has been analyzed in this field. The Agency for Healthcare Research and Quality in the USA has founded a special curriculum for doctors. The aim is to improve understanding of the basic principles of palliative care. It is possible to arrange upgrading courses, read necessary lectures or print literature and appropriate brochures for healthcare professionals. It suggests an improvement in the education of palliative workers on the basis of higher education. There is a problem with the lack of staff in the hospices of Ukraine. This profession is not popular and employees of hospices have a small salary. Still, this work is responsible and nervous. The article also presents an analysis of the trends and the development of laws in the field of palliative care in Ukraine. Manuscript received 28.02.2019","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68267342","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 : 2018-12-27DOI: 10.18523/2617-2607.2018.29-32
Юлія Геннадіївна Матвєєва
The question addressed by this article is whether it is possible to state that European adherence to legal certainty and American legal uncertainty make up the characteristics of the two distinct legal systems (common law and civil law). There is an inevitable certainty and uncertainty both in common law and civil law states. The law is based on the language which leads us to the “internal uncertainty of the language itself.” This applies to the court practice, statutory law; nevertheless, the worldwide tendency regarding the usage of the plain language can be observed. It is also worth to support the idea that the law resembles a number of “legal formants”. This means that legal analysis should take into account the legislation, court practice and legal academic works regardless of whether the legal system considers the latter as sources of law. Further research should focus on how these formants compete and interact with each other. Therefore, legal systems very rarely have only one correct key answer to a certain problem. Thus, legal reforms that nowadays appear to be fairly frequent and lead to system changes in the legal regulation, reveal the legal system instability. In addition, both the change of judicial practice and the dynamic approach (method) of legal interpretation are the display of legal uncertainty. But those are quite usual practices. In fact, the law is a phenomenon that depends on changes of public life. At the same time, legal certainty is an element of the rule of law without which, according to Professor Ronald Dworkin, a well-known American philosopher of law, it is impossible to understand the phenomenon of law as such. Therefore, legal certainty is also inherent to the law itself. It is realized in requirements to written legal texts (clarity, exactness, and availability of acts of legislation, court decisions, acts of subjects of imperious plenary powers) and in an attempt to provide the unity of judicial practice. As a result, the regarded elements of legal certainty and uncertainty are at the same degree specific both for common and civil law. Sometimes certain legal uncertainty is acceptable and even desirable. Countries have to balance between certainty and ability to adjust to the law.
{"title":"Legal Certainty: Pro et Contra","authors":"Юлія Геннадіївна Матвєєва","doi":"10.18523/2617-2607.2018.29-32","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.29-32","url":null,"abstract":"The question addressed by this article is whether it is possible to state that European adherence to legal certainty and American legal uncertainty make up the characteristics of the two distinct legal systems (common law and civil law). There is an inevitable certainty and uncertainty both in common law and civil law states. The law is based on the language which leads us to the “internal uncertainty of the language itself.” This applies to the court practice, statutory law; nevertheless, the worldwide tendency regarding the usage of the plain language can be observed. It is also worth to support the idea that the law resembles a number of “legal formants”. This means that legal analysis should take into account the legislation, court practice and legal academic works regardless of whether the legal system considers the latter as sources of law. Further research should focus on how these formants compete and interact with each other. Therefore, legal systems very rarely have only one correct key answer to a certain problem. Thus, legal reforms that nowadays appear to be fairly frequent and lead to system changes in the legal regulation, reveal the legal system instability. In addition, both the change of judicial practice and the dynamic approach (method) of legal interpretation are the display of legal uncertainty. But those are quite usual practices. In fact, the law is a phenomenon that depends on changes of public life. At the same time, legal certainty is an element of the rule of law without which, according to Professor Ronald Dworkin, a well-known American philosopher of law, it is impossible to understand the phenomenon of law as such. Therefore, legal certainty is also inherent to the law itself. It is realized in requirements to written legal texts (clarity, exactness, and availability of acts of legislation, court decisions, acts of subjects of imperious plenary powers) and in an attempt to provide the unity of judicial practice. As a result, the regarded elements of legal certainty and uncertainty are at the same degree specific both for common and civil law. Sometimes certain legal uncertainty is acceptable and even desirable. Countries have to balance between certainty and ability to adjust to the law.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42892625","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 : 2018-12-27DOI: 10.18523/2617-2607.2018.21-24
Viktor Kushyk
The article addresses the problems of realization of social and economic human rights in the context of the Universal Declaration of Human Rights, as well as their connection with civil and political rights. It is drawn to the fact that there are certain contradictions between the principles enshrined in the declaration. The author raises the issue of dignity, cultural differences, and justice in the distribution of public goods. The question of the state’s responsibilities in the provision of social and economic rights is considered. States have a primary responsibility for the social and economic well-being of their citizens. Fair economic growth must play a decisive role in this area, and it is important to consolidate the link between the economic policy and the human rights. The support of the international community should, to a certain extent, be conditional on the governments of individual countries fulfilling their own responsibilities. The Universal Declaration of Human Rights leaves open the question of the placement of social and economic rights in the constitutions of the countries and the issue of their judicial protection. The most effective instrument for realizing these rights will be the development of social legislation, rather than the general provisions of social rights in the constitutions of countries. However, the problems faced by many states can not be fully solved by the efforts of the state alone. The question of morality is the interpretation of the provisions of the Declaration on Social and Economic Rights as an obligation of the international community to act to prevent poverty in the world. The possibility of involving not only states but also international enterprises in the process of combatting poverty is considered. On the basis of the Declaration, the companies and other interested parties begin to formulate sectoral standards of human rights. Possible ways to implement social and economic rights at the local and global levels are also discussed.
{"title":"Problems of Realization of Social and Economic Human Rights","authors":"Viktor Kushyk","doi":"10.18523/2617-2607.2018.21-24","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.21-24","url":null,"abstract":"The article addresses the problems of realization of social and economic human rights in the context of the Universal Declaration of Human Rights, as well as their connection with civil and political rights. It is drawn to the fact that there are certain contradictions between the principles enshrined in the declaration. The author raises the issue of dignity, cultural differences, and justice in the distribution of public goods. The question of the state’s responsibilities in the provision of social and economic rights is considered. States have a primary responsibility for the social and economic well-being of their citizens. Fair economic growth must play a decisive role in this area, and it is important to consolidate the link between the economic policy and the human rights. The support of the international community should, to a certain extent, be conditional on the governments of individual countries fulfilling their own responsibilities. The Universal Declaration of Human Rights leaves open the question of the placement of social and economic rights in the constitutions of the countries and the issue of their judicial protection. The most effective instrument for realizing these rights will be the development of social legislation, rather than the general provisions of social rights in the constitutions of countries. However, the problems faced by many states can not be fully solved by the efforts of the state alone. The question of morality is the interpretation of the provisions of the Declaration on Social and Economic Rights as an obligation of the international community to act to prevent poverty in the world. The possibility of involving not only states but also international enterprises in the process of combatting poverty is considered. On the basis of the Declaration, the companies and other interested parties begin to formulate sectoral standards of human rights. Possible ways to implement social and economic rights at the local and global levels are also discussed.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68266687","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 : 2018-12-27DOI: 10.18523/2617-2607.2018.9-14
Ievgen Zvieriev
Статтю присвячено роздумам про актуальне на сьогодні поняття постправди у всій різноманітності його сприйняття. Автор робить спроби оцінити його з погляду релігії, журналістики та передусім права. Здійснено аналіз історії виникнення явища, його позитивних та негативних характеристик, а також подано рекомендації щодо боротьби з його можливими негативними проявами.
{"title":"Certain Thoughts on Post-truth in Law","authors":"Ievgen Zvieriev","doi":"10.18523/2617-2607.2018.9-14","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.9-14","url":null,"abstract":"Статтю присвячено роздумам про актуальне на сьогодні поняття постправди у всій різноманітності його сприйняття. Автор робить спроби оцінити його з погляду релігії, журналістики та передусім права. Здійснено аналіз історії виникнення явища, його позитивних та негативних характеристик, а також подано рекомендації щодо боротьби з його можливими негативними проявами.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68266806","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 : 2018-12-27DOI: 10.18523/2617-2607.2018.39-49
Ольга Лобач
The principles of law belong to one of the fundamental concepts of law which has been studied by human thought for a long time. As fundamental principles, the principles of law find their legislative presentation in the world legal systems, and researchers investigate the principles of law in various directions. The goal of law and its principles is to serve society. The financial science and the tax law science turn to the clarification of this concept trying to find out the role of principles and their impact on the development of a fair, efficient, optimal tax system, taking into account that in today’s society the taxing is one of the most significant financial sources to meet the public needs of society. The principles of law are classifiable according to numerous general and sectoral criteria. The general principles are justice, equality, freedom, humanism, etc., which must determine the nature of sectoral principles, i.e. fiscal sufficiency, social justice (solvency), and others. Classification of tax principles is intended to contribute to compliance with the rights of taxpayers, to create a balance of taxpayers’ interests with the interests of the state, in which these taxpayers have the object of taxation and to which they pay taxes. The legislative activity of the state regarding the establishment and collection of taxes should take into account the principles of law. Solving problematic issues of ideological and methodological understanding of the principles of law, including the principles of the taxation sphere, is the task for both lawmaking and for the practical application of these principles in the practice of tax authorities, taxpayers, and courts. This article addresses all these problems. Article received 17.05.2018
{"title":"Principles of Law: Features in the Law of Taxation","authors":"Ольга Лобач","doi":"10.18523/2617-2607.2018.39-49","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.39-49","url":null,"abstract":"The principles of law belong to one of the fundamental concepts of law which has been studied by human thought for a long time. As fundamental principles, the principles of law find their legislative presentation in the world legal systems, and researchers investigate the principles of law in various directions. The goal of law and its principles is to serve society. The financial science and the tax law science turn to the clarification of this concept trying to find out the role of principles and their impact on the development of a fair, efficient, optimal tax system, taking into account that in today’s society the taxing is one of the most significant financial sources to meet the public needs of society. The principles of law are classifiable according to numerous general and sectoral criteria. The general principles are justice, equality, freedom, humanism, etc., which must determine the nature of sectoral principles, i.e. fiscal sufficiency, social justice (solvency), and others. Classification of tax principles is intended to contribute to compliance with the rights of taxpayers, to create a balance of taxpayers’ interests with the interests of the state, in which these taxpayers have the object of taxation and to which they pay taxes. The legislative activity of the state regarding the establishment and collection of taxes should take into account the principles of law. Solving problematic issues of ideological and methodological understanding of the principles of law, including the principles of the taxation sphere, is the task for both lawmaking and for the practical application of these principles in the practice of tax authorities, taxpayers, and courts. This article addresses all these problems. Article received 17.05.2018","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44116748","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 : 2018-12-27DOI: 10.18523/2617-2607.2018.25-28
V. Buryĭ
The article analyzes the ways of interpretation and enforcement of the right of access to justice. Through comparison of national and foreign studies, the author is trying to prove the demand for a wide interpretation of the right of access to justice. By providing certain national studies, the decision of the Constitutional Court of Ukraine, and in-force legal policy, the author shows that only the first “wave” of the right to access to justice is implemented in Ukraine. Due to a narrow definition of the right of access to justice, the legal policy cannot guarantee a proper level of the rule of law. This fact is supported by the annual legal ranking of the countries by the World Justice Project Rule of Law Index. The countries in the top of the rule of law rating accept a wide definition of the right of access to justice, with all four “waves” [of this right] implemented. The article describes the elements of each “wave” that are also presented by the legal framework of reforming justice in Australia, the decisions of the Supreme Court of India, the Courts of Canada, and the Supreme Court of the United States of America. Those components include: a real possibility to use legal remedies of the formal justice, access to qualified legal assistance, promotion of pre-trial dispute resolution by facilitation, mediation or arbitration, and preventing disputes arising overall. The possibility of implementing the idea mentioned hereinabove is proposed by interpreting the 3rd article of the Constitution of Ukraine that underlines that human rights, freedoms, and guarantees shall determine the essence and course of activities of the State, and highlights that ensuring human rights and freedoms shall be the main duty of the State.
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Pub Date : 2018-12-18DOI: 10.18523/2617-2607.2018.34-38
I. Matvieieva
Legal certainty is the main idea for the entire legal system. The degree and manner it is included to positive law varies from system to system, but its implementation in a certain form is important for individual autonomy. Legal certainty has the key role in creating legal methods that form, recognize, and apply the law. At the same time, legal uncertainty cannot and does not have the same leading function as does the Legal certainty. When uncertainty is covered or expected, the rules set back in order of importance; i.e., if we cannot guarantee making the decision according to the law and legal rules, then we at least can guarantee it in accordance with the legal process. Thus, if legal certainty in the legal systems of common law is not ensured by clarity and accessibility of legal statements, it is achieved by applying the similar court decisions, as well as compliance with the rules of due process of law. These rules serve as procedural aspects and principles of court consideration. The Civil law is characterized by regulations and codification. The latter is a systematic and rational streamlining of laws into official codes. Thanks to this codification, the Civil law becomes reachable. It is clear and easy to understand, so any people, owners or consumers reading the codes can find out how the rules of law can be applied towards them. The law is also easily understood, as each rule is formulated with simple and general terms. This results in legal certainty, which is the main advantage for citizens, allowing them to predict the outcome of court proceedings and estimate financial risks in case of a court appeal. Thus, legal certainty in different legal families is provided in different ways; this creates the basis for the allocation of static and dynamic concepts of legal certainty. The static concept is provided by an effective system of codified legislation, which prescribes requirements to the content of the law – it must be fairly clear, understandable and accessible to ordinary people. On the other hand, dynamic concept is based on a flexible and more creative approach to resolving legal disputes and is ensured by the predictability of the judicial system and a significant law-forming role of judges in making decisions.
{"title":"Статистична та динамічна концепції правової визначеності","authors":"I. Matvieieva","doi":"10.18523/2617-2607.2018.34-38","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.34-38","url":null,"abstract":"Legal certainty is the main idea for the entire legal system. The degree and manner it is included to positive law varies from system to system, but its implementation in a certain form is important for individual autonomy. Legal certainty has the key role in creating legal methods that form, recognize, and apply the law. At the same time, legal uncertainty cannot and does not have the same leading function as does the Legal certainty. When uncertainty is covered or expected, the rules set back in order of importance; i.e., if we cannot guarantee making the decision according to the law and legal rules, then we at least can guarantee it in accordance with the legal process. Thus, if legal certainty in the legal systems of common law is not ensured by clarity and accessibility of legal statements, it is achieved by applying the similar court decisions, as well as compliance with the rules of due process of law. These rules serve as procedural aspects and principles of court consideration. The Civil law is characterized by regulations and codification. The latter is a systematic and rational streamlining of laws into official codes. Thanks to this codification, the Civil law becomes reachable. It is clear and easy to understand, so any people, owners or consumers reading the codes can find out how the rules of law can be applied towards them. The law is also easily understood, as each rule is formulated with simple and general terms. This results in legal certainty, which is the main advantage for citizens, allowing them to predict the outcome of court proceedings and estimate financial risks in case of a court appeal. Thus, legal certainty in different legal families is provided in different ways; this creates the basis for the allocation of static and dynamic concepts of legal certainty. The static concept is provided by an effective system of codified legislation, which prescribes requirements to the content of the law – it must be fairly clear, understandable and accessible to ordinary people. On the other hand, dynamic concept is based on a flexible and more creative approach to resolving legal disputes and is ensured by the predictability of the judicial system and a significant law-forming role of judges in making decisions.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"2 1","pages":"34-38"},"PeriodicalIF":0.0,"publicationDate":"2018-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68266262","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 : 2018-12-18DOI: 10.18523/2617-2607.2018.49-54
Anastasiia Ulasevych
This scientific article is dedicated to finding out whether the task of the justice could be considered as a component of the “spirit” of law and whether the novel of procedural codes is possible to be considered as a mechanism of appeal to the “spirit” of law, due to the idea that the court and the participants of the trial must be guided by the tasks of the justice, and this tack prevails over any other issues in the trial. After analyzing scientist researches and practices of European court of justice, the conclusions are as follows. First, the opportunity to apply such tasks of justice as fair, impartial, and timely; consideration of the case and its solution for the effective protection of rights and opportunity to use these tasks in a prevailing position over other considerations appeal to the “spirit” of law. Second, norms to use tasks of justice in a prevailing position are entirely an appeal to justice, the establishment of truth, the application of the rule of law, and the spirit of law. Third, this norm is an attempt of the legislator to introduce a mechanism of applying the “spirit” of law. After analyzing the exceptions of norms to use tasks of justice in a prevailing position in different proceed cods of Ukraine, we have the following conclusions. Exceptions of this norm in Criminal Procedure Code of Ukraine and in Code of Administrative Proceedings of Ukraine are a temporarily precautionary measure in connection with the specifics of regulation of these branches of law and the probable risks of using the “spirit” of law in countries with young democracy and high level of corruption. Taking into consideration the absence of experience in Ukraine in the application of the “spirit” of law, it is logical to temporarily postpone the application of norms that place tasks beyond other considerations in order to avoid abuses that could lead to violations of human rights. As a general conclusion – appeal to the “spirit” of law in time when the level of corruption in Ukraine is high enough should be very careful so as not to turn into arbitrariness.
{"title":"Запровадження механізму застосування «духу» права в нових процесуальних кодексах","authors":"Anastasiia Ulasevych","doi":"10.18523/2617-2607.2018.49-54","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.49-54","url":null,"abstract":"This scientific article is dedicated to finding out whether the task of the justice could be considered as a component of the “spirit” of law and whether the novel of procedural codes is possible to be considered as a mechanism of appeal to the “spirit” of law, due to the idea that the court and the participants of the trial must be guided by the tasks of the justice, and this tack prevails over any other issues in the trial. After analyzing scientist researches and practices of European court of justice, the conclusions are as follows. First, the opportunity to apply such tasks of justice as fair, impartial, and timely; consideration of the case and its solution for the effective protection of rights and opportunity to use these tasks in a prevailing position over other considerations appeal to the “spirit” of law. Second, norms to use tasks of justice in a prevailing position are entirely an appeal to justice, the establishment of truth, the application of the rule of law, and the spirit of law. Third, this norm is an attempt of the legislator to introduce a mechanism of applying the “spirit” of law. After analyzing the exceptions of norms to use tasks of justice in a prevailing position in different proceed cods of Ukraine, we have the following conclusions. Exceptions of this norm in Criminal Procedure Code of Ukraine and in Code of Administrative Proceedings of Ukraine are a temporarily precautionary measure in connection with the specifics of regulation of these branches of law and the probable risks of using the “spirit” of law in countries with young democracy and high level of corruption. Taking into consideration the absence of experience in Ukraine in the application of the “spirit” of law, it is logical to temporarily postpone the application of norms that place tasks beyond other considerations in order to avoid abuses that could lead to violations of human rights. As a general conclusion – appeal to the “spirit” of law in time when the level of corruption in Ukraine is high enough should be very careful so as not to turn into arbitrariness.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"2 1","pages":"49-54"},"PeriodicalIF":0.0,"publicationDate":"2018-12-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68266412","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 : 2018-01-01DOI: 10.18523/2617-2607.2018.79-92
Yu.І. Ishchenko
Some features of the development of the science of administrative law have been researched in the article since the adoption of the Concept of Administrative Reform to date. The author addressed the study to analyze the defended dissertations for obtaining the degree of Doctor of Law in specialty 12.00.07 – administrative law and process; finance law; information law in Ukraine. In total, 245 such dissertations have been analyzed. The fact of the dynamics of the growth of the number of doctoral theses is indisputable. Especially this growth of dynamics is apparent after 2010. Between 1997 and 2007, only 43 doctoral dissertations were defended. From 2008 to July 2018, 202 such works were already defended. The absolute record for the number of defended doctoral theses is 2015 (32 doctoral dissertations). 80 theses (33 % of the total number) were defended in the institutions belonging to the Ministry of Internal Affairs of Ukraine. The defense of doctoral theses takes place in specialized academic councils, the list of which is approved by the Ministry of Education and Science of Ukraine. 15 specialized scientific councils operated in Ukraine as of December 2016, in which dissertations for the degree of Doctor of Law in specialty 12.00.07 were defended. 7 councils acted in Kyiv, 3 councils acted in Kharkiv. In the cities of Zaporizhzhya, Dnipro, Lviv, Odesa and Irpin, one specialized scientific council was active in each city. The features of the thematic focus of scientific research, the activity of specialized academic councils were also studied. The subjects of the law enforcement bodies are very popular. Such themes have been embodied in 22 doctoral dissertations (9 % of the total). The subjects of public administration and public administration are reflected in 20 dissertations (8.2 % of the total). The issue of state control has been reflected in 15 dissertations (6.1 % of the total). Proposals on perspective issues of research, new horizons of science of administrative law are given.
{"title":"Наукові горизонти адміністративного права: тенденції та перспективи","authors":"Yu.І. Ishchenko","doi":"10.18523/2617-2607.2018.79-92","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.79-92","url":null,"abstract":"Some features of the development of the science of administrative law have been researched in the article since the adoption of the Concept of Administrative Reform to date. The author addressed the study to analyze the defended dissertations for obtaining the degree of Doctor of Law in specialty 12.00.07 – administrative law and process; finance law; information law in Ukraine. In total, 245 such dissertations have been analyzed. The fact of the dynamics of the growth of the number of doctoral theses is indisputable. Especially this growth of dynamics is apparent after 2010. Between 1997 and 2007, only 43 doctoral dissertations were defended. From 2008 to July 2018, 202 such works were already defended. The absolute record for the number of defended doctoral theses is 2015 (32 doctoral dissertations). 80 theses (33 % of the total number) were defended in the institutions belonging to the Ministry of Internal Affairs of Ukraine. The defense of doctoral theses takes place in specialized academic councils, the list of which is approved by the Ministry of Education and Science of Ukraine. 15 specialized scientific councils operated in Ukraine as of December 2016, in which dissertations for the degree of Doctor of Law in specialty 12.00.07 were defended. 7 councils acted in Kyiv, 3 councils acted in Kharkiv. In the cities of Zaporizhzhya, Dnipro, Lviv, Odesa and Irpin, one specialized scientific council was active in each city. The features of the thematic focus of scientific research, the activity of specialized academic councils were also studied. The subjects of the law enforcement bodies are very popular. Such themes have been embodied in 22 doctoral dissertations (9 % of the total). The subjects of public administration and public administration are reflected in 20 dissertations (8.2 % of the total). The issue of state control has been reflected in 15 dissertations (6.1 % of the total). Proposals on perspective issues of research, new horizons of science of administrative law are given.","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"2 1","pages":"79-92"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68267110","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 : 2018-01-01DOI: 10.18523/2617-2607.2018.67-72
V. Kostiuk
The article reveals the issues connected with the legal characteristic of the right to social assistance in the present conditions. The peculiarities of the formation of the right to social assistance through the prism of the right to social protection are analized. The key role of social assistance among types of social security is noted. The article emphasizes the need to take into account European social standards in shaping the latest system of social benefits. The emphasis is put on certain types of state and social insurance assistance. The basic tendencies of development of the legislation on social assistance are discussed. It is noted that the right to social assistance is a complex, systematic social right which includes the possibility for a person to receive financial support in the form of a cash in the event of full, partial, or temporary loss of disability, loss of breadwinner, unemployment from circumstances independent of them, as well as in old age and in other cases, in the manner prescribed by law. The main features of the right to social assistance are as follows: complex and systematic social rights; stems from the content of the right to social protection; functions in state and non-state social protection and social insurance system; the object is social assistance and its individual types; entitled persons are mainly socially vulnerable categories of persons who can not independently provide their livelihoods on an adequate level; as a rule, guaranteed when the person is not entitled to a pension; subject mainly to legislative regulation, a special place in which belongs to the law on the State Budget for the relevant year; characterized by the existence of specific mechanisms for implementation, guarantee and legal protection; determined, as a rule, in relation to the subsistence minimum; to be monitored, supervised and controlled. It is obvious that in the current situation, an important social strategy should be further harmonization of the size of the subsistence minimum with a sufficient standard of living, which will ensure the proper level and quality of life of eligible persons, including by agreeing the subsistence minimum for able-bodied and disabled people to a higher level. In the context of the reform of social protection, the reform of social assistance should be carried out through the prism of reforms of the system of state social protection; reforms of the social insurance system; development of non-state social protection; increasing the effectiveness, efficiency and accessibility of the right to social assistance; systematization and codification of legislation on social protection. The main tendencies of legislative provision of the right to social assistance are as follows: organization of systemic economic reforms; organization and implementation of social protection reform, taking into account international and national experience; ensuring the effectiveness, accessibility and effectiveness of imple
{"title":"Право на соціальні допомоги в умовах сьогодення: науково-теоретичний аспект","authors":"V. Kostiuk","doi":"10.18523/2617-2607.2018.67-72","DOIUrl":"https://doi.org/10.18523/2617-2607.2018.67-72","url":null,"abstract":"The article reveals the issues connected with the legal characteristic of the right to social assistance in the present conditions. The peculiarities of the formation of the right to social assistance through the prism of the right to social protection are analized. The key role of social assistance among types of social security is noted. The article emphasizes the need to take into account European social standards in shaping the latest system of social benefits. The emphasis is put on certain types of state and social insurance assistance. The basic tendencies of development of the legislation on social assistance are discussed. It is noted that the right to social assistance is a complex, systematic social right which includes the possibility for a person to receive financial support in the form of a cash in the event of full, partial, or temporary loss of disability, loss of breadwinner, unemployment from circumstances independent of them, as well as in old age and in other cases, in the manner prescribed by law. The main features of the right to social assistance are as follows: complex and systematic social rights; stems from the content of the right to social protection; functions in state and non-state social protection and social insurance system; the object is social assistance and its individual types; entitled persons are mainly socially vulnerable categories of persons who can not independently provide their livelihoods on an adequate level; as a rule, guaranteed when the person is not entitled to a pension; subject mainly to legislative regulation, a special place in which belongs to the law on the State Budget for the relevant year; characterized by the existence of specific mechanisms for implementation, guarantee and legal protection; determined, as a rule, in relation to the subsistence minimum; to be monitored, supervised and controlled. It is obvious that in the current situation, an important social strategy should be further harmonization of the size of the subsistence minimum with a sufficient standard of living, which will ensure the proper level and quality of life of eligible persons, including by agreeing the subsistence minimum for able-bodied and disabled people to a higher level. In the context of the reform of social protection, the reform of social assistance should be carried out through the prism of reforms of the system of state social protection; reforms of the social insurance system; development of non-state social protection; increasing the effectiveness, efficiency and accessibility of the right to social assistance; systematization and codification of legislation on social protection. The main tendencies of legislative provision of the right to social assistance are as follows: organization of systemic economic reforms; organization and implementation of social protection reform, taking into account international and national experience; ensuring the effectiveness, accessibility and effectiveness of imple","PeriodicalId":34101,"journal":{"name":"Naukovi zapiski NaUKMA Iuridichni nauki","volume":"2 1","pages":"67-72"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68266816","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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