Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.283091
Aulia Wibowo, Siti Kunarti, Rahadi Bintoro
The peace that has been made by the disputing parties, in the presence of a notary with a notarial deed, is expected to end the dispute, provide legal certainty between those who are in dispute. The peace deed is also expected to provide legal certainty, benefit and provide justice between those who are in dispute and for their future descendants. Thus it will create a calm life, peace and harmony between those who are at odds. However, if the peace deed that has been made between them, especially what has been made before a notary with a notarized peace deed, can then be disputed again, the problem raised in this study is the legal force of the peace deed made by a notary in an effort to resolve civil law conflicts in Indonesia. In the example case of the Gianyar District Court decision No. 54/Pdt.G/2015/PN.Gir. To answer these problems, normative juridical legal research methods are used with prescriptive research methods. The results of the analysis and research are that the binding power of a notarial peace deed in proof is a deed that has the power of a judge's decision at the final level. The peace deed that was made was also useless and violated the sense of justice of the parties who made it in good faith. Of course this will also cause doubts both among the parties and in society. Therefore, understanding and clarity are needed regarding the nature of the peace itself and the binding power of the notarized peace deed in proof in court. Extensive knowledge so that the word published does not cause problems in the future for the parties involved.
{"title":"Legal Strength of Peace Deeds Made by Notary in Efforts to Settle Civil Law Conflict in Indonesia","authors":"Aulia Wibowo, Siti Kunarti, Rahadi Bintoro","doi":"10.21564/2414-990x.162.283091","DOIUrl":"https://doi.org/10.21564/2414-990x.162.283091","url":null,"abstract":"The peace that has been made by the disputing parties, in the presence of a notary with a notarial deed, is expected to end the dispute, provide legal certainty between those who are in dispute. The peace deed is also expected to provide legal certainty, benefit and provide justice between those who are in dispute and for their future descendants. Thus it will create a calm life, peace and harmony between those who are at odds. However, if the peace deed that has been made between them, especially what has been made before a notary with a notarized peace deed, can then be disputed again, the problem raised in this study is the legal force of the peace deed made by a notary in an effort to resolve civil law conflicts in Indonesia. In the example case of the Gianyar District Court decision No. 54/Pdt.G/2015/PN.Gir. To answer these problems, normative juridical legal research methods are used with prescriptive research methods. The results of the analysis and research are that the binding power of a notarial peace deed in proof is a deed that has the power of a judge's decision at the final level. The peace deed that was made was also useless and violated the sense of justice of the parties who made it in good faith. Of course this will also cause doubts both among the parties and in society. Therefore, understanding and clarity are needed regarding the nature of the peace itself and the binding power of the notarized peace deed in proof in court. Extensive knowledge so that the word published does not cause problems in the future for the parties involved.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"46 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296566","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.287143
Oleh Tarasov
The article examines the legal nature and content of legal subjectivity of international migrants using the cutting-edge methodology of international legal personology. The relevance of the research topic is the need to apply the personology methodology to the study of the personal component of the international legal system, especially in the context of Russian aggression which poses a threat to the lives of Ukrainian refugees. The purpose of the article is to determine the legal nature and content of international migration legal personality of a person using the latest methodology of international legal personology. The methodological basis of the study is an interdisciplinary and comprehensive approach which made it possible to formulate the conceptual framework of international migration legal personality of a person with due regard for the modern doctrine and practice of international law. The work uses a number of general theoretical and special scientific methods: objectivity; dialectical; historical and legal; formal and logical; special legal; systemic and structural; comparative legal; sociological; the person-centered method was developed by the author specifically for the study of the problems of the subject of law in general and the subject of international law in particular. It posits that the 1948 mistranslation of the traditional legal concept of “legal personality” (person before the law) as “legal subjectivity” in Article 6 of the Universal Declaration of Human Rights has had negative methodological consequences for domestic studies of personative legal reality. In their research, the scholars typically focused on the legal status, rights and duties of the legal subject rather than legal personality per se. The study of specific qualitative traits of legal personality (such as personative capacity, under the umbrella term of “legal capacity”, or negative capacity, in the narrow framework of criminal capacity) has been fragmentary, sporadic, and categorically vague. Only when legal personology cohered as an academic approach did it became possible to use an adequate person-centric methodology to study the personative element of any legal system. A personological analysis of the traditional concept of “legal capacity” identified three aspects: 1) normative: the capacity of a social actor to bear a legal status, possess rights and duties (normative capacity before the law); 2) personative: the capacity of a social actor to be a subject of law, a legal personality, a bearer of a personative legal form of a physical, legal or sovereign person (personative capacity before the law); 3) communicative: the capacity of a social actor to take part in legal communications, to be a party of legal relations (communicative capacity before the law). Further personological study of international migration law found that a person bears all the features of an international legal personality that possesses the corresponding sectoral personative ca
{"title":"Legal Personality in International Migration: the Personological Aspect","authors":"Oleh Tarasov","doi":"10.21564/2414-990x.162.287143","DOIUrl":"https://doi.org/10.21564/2414-990x.162.287143","url":null,"abstract":"The article examines the legal nature and content of legal subjectivity of international migrants using the cutting-edge methodology of international legal personology. The relevance of the research topic is the need to apply the personology methodology to the study of the personal component of the international legal system, especially in the context of Russian aggression which poses a threat to the lives of Ukrainian refugees. The purpose of the article is to determine the legal nature and content of international migration legal personality of a person using the latest methodology of international legal personology. The methodological basis of the study is an interdisciplinary and comprehensive approach which made it possible to formulate the conceptual framework of international migration legal personality of a person with due regard for the modern doctrine and practice of international law. The work uses a number of general theoretical and special scientific methods: objectivity; dialectical; historical and legal; formal and logical; special legal; systemic and structural; comparative legal; sociological; the person-centered method was developed by the author specifically for the study of the problems of the subject of law in general and the subject of international law in particular. It posits that the 1948 mistranslation of the traditional legal concept of “legal personality” (person before the law) as “legal subjectivity” in Article 6 of the Universal Declaration of Human Rights has had negative methodological consequences for domestic studies of personative legal reality. In their research, the scholars typically focused on the legal status, rights and duties of the legal subject rather than legal personality per se. The study of specific qualitative traits of legal personality (such as personative capacity, under the umbrella term of “legal capacity”, or negative capacity, in the narrow framework of criminal capacity) has been fragmentary, sporadic, and categorically vague. Only when legal personology cohered as an academic approach did it became possible to use an adequate person-centric methodology to study the personative element of any legal system. A personological analysis of the traditional concept of “legal capacity” identified three aspects: 1) normative: the capacity of a social actor to bear a legal status, possess rights and duties (normative capacity before the law); 2) personative: the capacity of a social actor to be a subject of law, a legal personality, a bearer of a personative legal form of a physical, legal or sovereign person (personative capacity before the law); 3) communicative: the capacity of a social actor to take part in legal communications, to be a party of legal relations (communicative capacity before the law). Further personological study of international migration law found that a person bears all the features of an international legal personality that possesses the corresponding sectoral personative ca","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296571","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.285449
Vitalii Gutnyk
The article is devoted to Hersch Lauterpacht's contribution to the development of the concept of international protection of human rights and international human rights law in general. The study analyzes relevant norms of international law and scientific works of Hersch Lauterpacht; considerable attention is paid to the reviews of leading scientists on Hersch Lauterpacht's books "An International Bill of the Rights of Man" published in 1945 and "International Law and Human Rights" in 1950. The purpose of the article is to, based on the analysis of Hersch Lauterpacht's scientific works, investigate his contribution to the development of the concept of international protection of human rights. Both general (dialectical and systemic-structural) and special (historical-legal, comparative-legal and formal-dogmatic) scientific methods were used in the research. The article defines the prerequisites for Hersch Lauterpacht's choice of international human rights protection as his scientific interest, explores the peculiarities of the scientific environment within which Hersch Lauterpacht developed the concept of international human rights protection, outlines the main doctrinal approaches to the control mechanism of human rights protection. Particular attention is paid to the progressiveness of Hersch Lauterpacht's concept of international control over the observance of human rights and obstacles to its establishment at the universal level. On the basis of the conducted research, the conclusion was formulated that Hersch Lauterpacht, among a number of scientists of the middle of the 20th century who developed the concepts of international legal regulations of human rights, most thoroughly, after investigating the genesis of the formation of human rights and using natural law approaches, proposed a model of effective international protection of human rights. Hersch Lauterpacht's views on the need for real guarantees of human rights at the universal level, rather than a simple declaration, were quite advanced and far ahead of their time. To a certain extent, they can be perceived as idealistic since even today, the achievement of the same universal international standard of guaranteeing human rights (especially economic, social and cultural) is improbable.
{"title":"Contribution of Hersch Lauterpacht to the Development of International Protection of Human Rights","authors":"Vitalii Gutnyk","doi":"10.21564/2414-990x.162.285449","DOIUrl":"https://doi.org/10.21564/2414-990x.162.285449","url":null,"abstract":"The article is devoted to Hersch Lauterpacht's contribution to the development of the concept of international protection of human rights and international human rights law in general. The study analyzes relevant norms of international law and scientific works of Hersch Lauterpacht; considerable attention is paid to the reviews of leading scientists on Hersch Lauterpacht's books \"An International Bill of the Rights of Man\" published in 1945 and \"International Law and Human Rights\" in 1950. The purpose of the article is to, based on the analysis of Hersch Lauterpacht's scientific works, investigate his contribution to the development of the concept of international protection of human rights. Both general (dialectical and systemic-structural) and special (historical-legal, comparative-legal and formal-dogmatic) scientific methods were used in the research. The article defines the prerequisites for Hersch Lauterpacht's choice of international human rights protection as his scientific interest, explores the peculiarities of the scientific environment within which Hersch Lauterpacht developed the concept of international human rights protection, outlines the main doctrinal approaches to the control mechanism of human rights protection. Particular attention is paid to the progressiveness of Hersch Lauterpacht's concept of international control over the observance of human rights and obstacles to its establishment at the universal level. On the basis of the conducted research, the conclusion was formulated that Hersch Lauterpacht, among a number of scientists of the middle of the 20th century who developed the concepts of international legal regulations of human rights, most thoroughly, after investigating the genesis of the formation of human rights and using natural law approaches, proposed a model of effective international protection of human rights. Hersch Lauterpacht's views on the need for real guarantees of human rights at the universal level, rather than a simple declaration, were quite advanced and far ahead of their time. To a certain extent, they can be perceived as idealistic since even today, the achievement of the same universal international standard of guaranteeing human rights (especially economic, social and cultural) is improbable.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135295740","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.285119
Ika Dewi, Harits Nu’man, Neni Ruhaeni, Dini Heniarti
This study analyzes the implementation mechanism of local working patents from both European and Indonesian perspectives, using normative research methods and secondary data obtained from library research. The implementation of Patent Act Number 13 of 2016 has faced criticism from various parties, including patent holders who find it complicated and difficult to comply with the local working patent provisions. The Ministry of Law and Human Rights has issued regulations to facilitate patent holders who are unable to implement Article 20 by allowing them to request patent postponement. However, the Job Creation Act No. 11 of 2022 has made it easier for patent holders to fulfill their obligations regarding local working patents. The Directorate General of Intellectual Property (DGIP) is responsible for monitoring, evaluating, and reporting on intellectual property protection. However, rules and procedures related to monitoring mechanisms, especially those related to implementing local working patents, have not been fully regulated by the DGIP Office.
{"title":"Local Working of Patents: a Comparative Study of Europe and Indonesia","authors":"Ika Dewi, Harits Nu’man, Neni Ruhaeni, Dini Heniarti","doi":"10.21564/2414-990x.162.285119","DOIUrl":"https://doi.org/10.21564/2414-990x.162.285119","url":null,"abstract":"This study analyzes the implementation mechanism of local working patents from both European and Indonesian perspectives, using normative research methods and secondary data obtained from library research. The implementation of Patent Act Number 13 of 2016 has faced criticism from various parties, including patent holders who find it complicated and difficult to comply with the local working patent provisions. The Ministry of Law and Human Rights has issued regulations to facilitate patent holders who are unable to implement Article 20 by allowing them to request patent postponement. However, the Job Creation Act No. 11 of 2022 has made it easier for patent holders to fulfill their obligations regarding local working patents. The Directorate General of Intellectual Property (DGIP) is responsible for monitoring, evaluating, and reporting on intellectual property protection. However, rules and procedures related to monitoring mechanisms, especially those related to implementing local working patents, have not been fully regulated by the DGIP Office.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296427","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.286065
Kateryna Pavshuk
The article is devoted to the study of the theory and practice of using electronic technologies in elections and referendums in the context of guaranteeing the established international principles of electoral law. The relevance of the topic is related to the adoption of the Law of Ukraine "On the All-Ukrainian Referendum", which allows the use of information and telecommunication technologies during its organization and conduct. The subject of the study is the theory and practice of using electronic technologies in elections and referendums in Ukraine and abroad. The purpose of the article is to analyze the use of electronic technologies in the process of administration, preparation and conduct of elections, which can be similarly used in the all-Ukrainian referendum in the context of ensuring the principles of electoral law, and also to clarify the technical side of their implementation. The study applies the method of analysis and synthesis of scientific information, comparative legal and dialectical methods of scientific cognition. The norms of domestic legislation on holding elections and the all-Ukrainian referendum on the use of electronic technologies have been studied. International standards of the implementation of e-voting technology, as well as the main recommendations of the Venice Commission and the Committee of Ministers on preventing violations of the principle of fair and free elections during the use of information technologies, were analyzed. Special attention was paid to the study of legal opinions of courts of foreign countries regarding problematic aspects and possible violation of voting principles when using e-voting technology (USA, Germany, India, Albania). It was concluded that the international community does not distinguish between using of electronic voting programs in elections and referendums, applying the same approaches to the implementation of electoral principles. Recommendations for domestic legislative activity and the practice of election administration are outlined. The possible use of such leading information and telecommunication technologies as biometric identification, online registration of political parties and candidates, electronic voting, optical scanning of paper ballots, recording of a paper trail, cryptography, etc. has been revealed. The analysis of judicial practice made it possible to conclude that in order to comply with the public nature of the election process it is important to guarantee cybersecurity, protection of personal data and the results of will detection by recording a paper trail. Finally, attention was drawn to the problem of legislative regulation of electronic procedures during the all-Ukrainian referendum without their consistency and harmonization with the provisions of the Election Code of Ukraine. The obsolescence of the procedure for initiating a national referendum enshrined in the Constitution of Ukraine and detailed in the law, which needs to be modernized, is emphas
{"title":"Electronic Technologies in Elections and Referendums: Theory and Practice","authors":"Kateryna Pavshuk","doi":"10.21564/2414-990x.162.286065","DOIUrl":"https://doi.org/10.21564/2414-990x.162.286065","url":null,"abstract":"The article is devoted to the study of the theory and practice of using electronic technologies in elections and referendums in the context of guaranteeing the established international principles of electoral law. The relevance of the topic is related to the adoption of the Law of Ukraine \"On the All-Ukrainian Referendum\", which allows the use of information and telecommunication technologies during its organization and conduct. The subject of the study is the theory and practice of using electronic technologies in elections and referendums in Ukraine and abroad. The purpose of the article is to analyze the use of electronic technologies in the process of administration, preparation and conduct of elections, which can be similarly used in the all-Ukrainian referendum in the context of ensuring the principles of electoral law, and also to clarify the technical side of their implementation. The study applies the method of analysis and synthesis of scientific information, comparative legal and dialectical methods of scientific cognition. The norms of domestic legislation on holding elections and the all-Ukrainian referendum on the use of electronic technologies have been studied. International standards of the implementation of e-voting technology, as well as the main recommendations of the Venice Commission and the Committee of Ministers on preventing violations of the principle of fair and free elections during the use of information technologies, were analyzed. Special attention was paid to the study of legal opinions of courts of foreign countries regarding problematic aspects and possible violation of voting principles when using e-voting technology (USA, Germany, India, Albania). It was concluded that the international community does not distinguish between using of electronic voting programs in elections and referendums, applying the same approaches to the implementation of electoral principles. Recommendations for domestic legislative activity and the practice of election administration are outlined. The possible use of such leading information and telecommunication technologies as biometric identification, online registration of political parties and candidates, electronic voting, optical scanning of paper ballots, recording of a paper trail, cryptography, etc. has been revealed. The analysis of judicial practice made it possible to conclude that in order to comply with the public nature of the election process it is important to guarantee cybersecurity, protection of personal data and the results of will detection by recording a paper trail. Finally, attention was drawn to the problem of legislative regulation of electronic procedures during the all-Ukrainian referendum without their consistency and harmonization with the provisions of the Election Code of Ukraine. The obsolescence of the procedure for initiating a national referendum enshrined in the Constitution of Ukraine and detailed in the law, which needs to be modernized, is emphas","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296424","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.284307
Yana Zelinska, Viktoriia Spasenko
The relevance of the article lies in the fact that fair and correct resolution of administrative cases involving appeals against decisions, actions and omissions of the National Agency for the Prevention of Corruption is possible only if all the principles of administrative justice are observed. Good faith in the exercise of procedural rights and strict observance of obligations by all participants to administrative proceedings is defined as one of the principles of administrative justice, and its observance plays a key role in achieving the objective of administrative justice. The purpose of the article is to analyze procedural obstacles, in particular, abuse of procedural rights, in the course of consideration of cases involving appeals against decisions, actions and inactions of the National Agency for the Prevention of Corruption. The study applies dialectical, formal legal, comparative legal, logical and semantic, statistical methods of scientific knowledge, as well as methods of observation, forecasting, classification and grouping, and prediction. The author examines certain aspects of the organization and activities of the National Agency for the Prevention of Corruption. It is proved that the most common administrative cases involving appeals against decisions, actions or omissions of the NAPC are the recognition as unlawful and the reversal of the decision of this public administration entity on the results of a full verification of the declaration of a person authorized to perform the functions of the State or local self-government. It is emphasized that procedural obstacles may arise during consideration of cases involving appeals against decisions, actions, and inactions of a public authority. The author examines such a procedural obstacle as abuse of procedural rights. The author analyzes the dual aspect of abuse of procedural rights, in particular, the substantive and procedural aspects. The author establishes that abuse of procedural rights which have a substantive legal aspect may arise when applying to an administrative court. It is noted that the procedural and legal aspect is related to the abuse of procedural rights at various procedural stages of administrative proceedings to appeal against decisions, actions and inactions of the NAPC, in particular: 1) opening of proceedings; 2) preparatory proceedings; 3) consideration of the case on the merits; 4) adoption and adoption of a court decision. The author provides the stages at which abuse of procedural rights may occur, given that the case is considered in the form of general action proceedings by the court of first instance. Based on the study, the author formulates conclusions and provides recommendations that abuse of procedural rights as a procedural obstacle in administrative cases concerning appeals against decisions, actions, and inactions of the NAPC may have a dual purpose: to create procedural obstacles and to delay the consideration of a case. The application of pr
{"title":"Procedural Obstacles in Cases of Appealing Decisions, Actions, Inaction of the National Agency for on Corruption Prevention","authors":"Yana Zelinska, Viktoriia Spasenko","doi":"10.21564/2414-990x.162.284307","DOIUrl":"https://doi.org/10.21564/2414-990x.162.284307","url":null,"abstract":"The relevance of the article lies in the fact that fair and correct resolution of administrative cases involving appeals against decisions, actions and omissions of the National Agency for the Prevention of Corruption is possible only if all the principles of administrative justice are observed. Good faith in the exercise of procedural rights and strict observance of obligations by all participants to administrative proceedings is defined as one of the principles of administrative justice, and its observance plays a key role in achieving the objective of administrative justice. The purpose of the article is to analyze procedural obstacles, in particular, abuse of procedural rights, in the course of consideration of cases involving appeals against decisions, actions and inactions of the National Agency for the Prevention of Corruption. The study applies dialectical, formal legal, comparative legal, logical and semantic, statistical methods of scientific knowledge, as well as methods of observation, forecasting, classification and grouping, and prediction. The author examines certain aspects of the organization and activities of the National Agency for the Prevention of Corruption. It is proved that the most common administrative cases involving appeals against decisions, actions or omissions of the NAPC are the recognition as unlawful and the reversal of the decision of this public administration entity on the results of a full verification of the declaration of a person authorized to perform the functions of the State or local self-government. It is emphasized that procedural obstacles may arise during consideration of cases involving appeals against decisions, actions, and inactions of a public authority. The author examines such a procedural obstacle as abuse of procedural rights. The author analyzes the dual aspect of abuse of procedural rights, in particular, the substantive and procedural aspects. The author establishes that abuse of procedural rights which have a substantive legal aspect may arise when applying to an administrative court. It is noted that the procedural and legal aspect is related to the abuse of procedural rights at various procedural stages of administrative proceedings to appeal against decisions, actions and inactions of the NAPC, in particular: 1) opening of proceedings; 2) preparatory proceedings; 3) consideration of the case on the merits; 4) adoption and adoption of a court decision. The author provides the stages at which abuse of procedural rights may occur, given that the case is considered in the form of general action proceedings by the court of first instance. Based on the study, the author formulates conclusions and provides recommendations that abuse of procedural rights as a procedural obstacle in administrative cases concerning appeals against decisions, actions, and inactions of the NAPC may have a dual purpose: to create procedural obstacles and to delay the consideration of a case. The application of pr","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296301","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.286411
Roman Melnyk
The relevance of the topic has been determined by the entry into force of the Law of Ukraine «On Administrative Procedure». The article is aimed at analyzing the approaches on understanding the features of an administrative act existing in Ukrainian legal doctrine and formulating recommendations oriented on building their universal system. Various methods of scientific cognition, including comparative and legal, systematic and structural, analysis, synthesis, and others constitute the research methodology. It makes it possible to systematically and consistently solve scientific problems, to study and compare the standpoints of scholars, the provisions of legal acts of the relevant countries, caselaw and to formulate the author’s conclusions. A number of systematic problems related to the incorrect understanding of the essence and features of administrative acts has been revealed in the research process. This situation, according to the author’s opinion, is largely related to the imperfection of legal definition of an administrative act, which was enshrined in the Law of Ukraine «On Administrative Procedure». Further analysis of the works of Ukrainian authors has demonstrated that in order to formulate relevant scientific provisions they in the vast majority use the results of Soviet authors. According to the author, such an approach is wrong; it blocks the development of modern, practically oriented concepts and conclusions. The author of the article has separately emphasized the fact that the features of an administrative act perform very important practical function. They help to solve comprehensive objectives primarily arising at the legal enforcement level. The author provides relevant detailed explanations on this matter. The article’s center of attention is the detailed presentation of the features of an administrative act. While performing this objective, the author has widely used the achievements of Western European authors, as well as refers to certain decisions of the judicial power to demonstrate the validity of the formulated conclusions and recommendations. As a result of the conducted research, the author comes to a sound conclusion that an administrative act should be characterized by the following features: 1) it represents a decision; 2) it is taken by an administrative agency; 3) it is oriented on the application / implementation of the norms of public (administrative) law; 4) it causes legal consequences in the form of establishing the rights or obligations for its addressee (regulatory nature); 5) it has a concrete and individual character; 6) it is characterized by an external orientation of the action. The conducted research allowed to draw the following conclusion:the features of an administrative act play a constitutive role by helping to solve various theoretical and practical problems. The features of an administrative act are universal in nature. It means that they do not depend (should not depend) on the national pecu
{"title":"Constitutive Features of Administrative Acts: Criticism and Analysis","authors":"Roman Melnyk","doi":"10.21564/2414-990x.162.286411","DOIUrl":"https://doi.org/10.21564/2414-990x.162.286411","url":null,"abstract":"The relevance of the topic has been determined by the entry into force of the Law of Ukraine «On Administrative Procedure». The article is aimed at analyzing the approaches on understanding the features of an administrative act existing in Ukrainian legal doctrine and formulating recommendations oriented on building their universal system. Various methods of scientific cognition, including comparative and legal, systematic and structural, analysis, synthesis, and others constitute the research methodology. It makes it possible to systematically and consistently solve scientific problems, to study and compare the standpoints of scholars, the provisions of legal acts of the relevant countries, caselaw and to formulate the author’s conclusions. A number of systematic problems related to the incorrect understanding of the essence and features of administrative acts has been revealed in the research process. This situation, according to the author’s opinion, is largely related to the imperfection of legal definition of an administrative act, which was enshrined in the Law of Ukraine «On Administrative Procedure». Further analysis of the works of Ukrainian authors has demonstrated that in order to formulate relevant scientific provisions they in the vast majority use the results of Soviet authors. According to the author, such an approach is wrong; it blocks the development of modern, practically oriented concepts and conclusions. The author of the article has separately emphasized the fact that the features of an administrative act perform very important practical function. They help to solve comprehensive objectives primarily arising at the legal enforcement level. The author provides relevant detailed explanations on this matter. The article’s center of attention is the detailed presentation of the features of an administrative act. While performing this objective, the author has widely used the achievements of Western European authors, as well as refers to certain decisions of the judicial power to demonstrate the validity of the formulated conclusions and recommendations. As a result of the conducted research, the author comes to a sound conclusion that an administrative act should be characterized by the following features: 1) it represents a decision; 2) it is taken by an administrative agency; 3) it is oriented on the application / implementation of the norms of public (administrative) law; 4) it causes legal consequences in the form of establishing the rights or obligations for its addressee (regulatory nature); 5) it has a concrete and individual character; 6) it is characterized by an external orientation of the action. The conducted research allowed to draw the following conclusion:the features of an administrative act play a constitutive role by helping to solve various theoretical and practical problems. The features of an administrative act are universal in nature. It means that they do not depend (should not depend) on the national pecu","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"126 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.284111
Lidiia Moskvych
The article is devoted to the study of European standards of judicial independence. The subject of the study is the institution of court independence and specific measures to improve its legal support in Ukraine in accordance with European standards. The purpose of the article is to determine the following judicial reform measures aimed at institutional and legal harmonization of Ukrainian legislation with the standards of the European Union. The research uses dialectical, systematic analysis and synthesis, comparison and legal modeling methods of scientific knowledge. Acquiring the status of a candidate country in the EU obliges Ukraine to carry out a number of transformations of social and political institutions, and judicial reform is one of them. This will require systemic measures, and not just amendments to legislation aimed at harmonizing national legal norms with European standards. It is emphasized that despite the ongoing judicial reform, the goal of an effective court has not been achieved: the level of public trust in the court is still low. The author predicts that if only point changes in judicial legislation are started now, the result will be the same as during the previous steps of judicial reform. It is necessary to start with the construction of the foundation for an effective judicial system, which is the independence of the court. Analyzing the European standards of an independent court and the practices of the EU institutions regarding the assessment of the impact of various indicators on the general assessment of the assurance of court independence, taking into account the current and urgent problems of the judicial system of Ukraine, the author makes a number of proposals for improving domestic legislation and practice aimed at strengthening the independence of the court, which the author calls fundamental the value of a democratic state, a prerequisite for an effective judicial protection system.
{"title":"Strengthening the Institutional Independence of the Court in the System of European Integration Steps of Ukraine","authors":"Lidiia Moskvych","doi":"10.21564/2414-990x.162.284111","DOIUrl":"https://doi.org/10.21564/2414-990x.162.284111","url":null,"abstract":"The article is devoted to the study of European standards of judicial independence. The subject of the study is the institution of court independence and specific measures to improve its legal support in Ukraine in accordance with European standards. The purpose of the article is to determine the following judicial reform measures aimed at institutional and legal harmonization of Ukrainian legislation with the standards of the European Union. The research uses dialectical, systematic analysis and synthesis, comparison and legal modeling methods of scientific knowledge. Acquiring the status of a candidate country in the EU obliges Ukraine to carry out a number of transformations of social and political institutions, and judicial reform is one of them. This will require systemic measures, and not just amendments to legislation aimed at harmonizing national legal norms with European standards. It is emphasized that despite the ongoing judicial reform, the goal of an effective court has not been achieved: the level of public trust in the court is still low. The author predicts that if only point changes in judicial legislation are started now, the result will be the same as during the previous steps of judicial reform. It is necessary to start with the construction of the foundation for an effective judicial system, which is the independence of the court. Analyzing the European standards of an independent court and the practices of the EU institutions regarding the assessment of the impact of various indicators on the general assessment of the assurance of court independence, taking into account the current and urgent problems of the judicial system of Ukraine, the author makes a number of proposals for improving domestic legislation and practice aimed at strengthening the independence of the court, which the author calls fundamental the value of a democratic state, a prerequisite for an effective judicial protection system.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.285224
Oksana Kaplina, Halyna Hetman
The article raises questions related to the definition of the system of investigative (search) actions relevant to modern law enforcement practice and the doctrine of the criminal procedure. Namely, for a long time the 1960 CPC in art. 194 provided for an investigative action such as reconstructing situation and circumstances of a certain event. The lack of legal certainty of this article logically led to a discussion about its legal content, which led scholars to form an opinion regarding the coverage of its normative content by two independent investigative actions – an investigative experiment and verification of testimony on the site. However, such a conclusion was only a doctrinal approach. The legal content of art. 194 of the 1960 CPC of Ukraine remained not clearly defined, which led to a lack of unity in approaches to its understanding until the very adoption in 2012 of the new CPC of Ukraine. Such a defect in the norm of criminal procedural law did not meet the requirements of the rule-making technique, and even less the needs of law enforcement practice. With the adoption of the 2012 CPC and enshrined in art. 240 as a separate investigative (search) activity of an investigative experiment, the discussion regarding the necessity of adopting an additional investigative activity such as verification of testimony on the site has appeared. The aim of the article is to interpret the Art. 240 of the 2012 Criminal Procedure Code to understand its legal content for clarifying the essence of such an investigative action as an "investigative experiment", to establish the types of experimental actions, to distinguish them from similar investigative actions, to resolve the issue of the feasibility of enshrining in the current Criminal Procedure Code such an investigative action as checking testimony on the scene. In this article, the authors express an opinion about the inexpediency of transferring this Soviet-era debate, which has been going for almost 50 years, to the modern times. The author's position is determined by the conceptual provisions laid down in the 2012 CPC, the essence of which is that testimony is information provided during an interrogation. The CPC of 2012 contains a procedural mechanism by which an investigator, inquirer, and prosecutor can verify previously submitted statements. Such proper legal procedure is an interrogation, which, in accordance with the requirements of the CPC, can be conducted both at the place of the pre-trial investigation and at another place, which determines the inexpediency of unnecessary legislative duplication.
{"title":"Problems of Normative Regulation of Investigative (Search) Actions Aimed at Verifying and Specifying Information Obtained During the Pre-Judicial Investigation","authors":"Oksana Kaplina, Halyna Hetman","doi":"10.21564/2414-990x.162.285224","DOIUrl":"https://doi.org/10.21564/2414-990x.162.285224","url":null,"abstract":"The article raises questions related to the definition of the system of investigative (search) actions relevant to modern law enforcement practice and the doctrine of the criminal procedure. Namely, for a long time the 1960 CPC in art. 194 provided for an investigative action such as reconstructing situation and circumstances of a certain event. The lack of legal certainty of this article logically led to a discussion about its legal content, which led scholars to form an opinion regarding the coverage of its normative content by two independent investigative actions – an investigative experiment and verification of testimony on the site. However, such a conclusion was only a doctrinal approach. The legal content of art. 194 of the 1960 CPC of Ukraine remained not clearly defined, which led to a lack of unity in approaches to its understanding until the very adoption in 2012 of the new CPC of Ukraine. Such a defect in the norm of criminal procedural law did not meet the requirements of the rule-making technique, and even less the needs of law enforcement practice. With the adoption of the 2012 CPC and enshrined in art. 240 as a separate investigative (search) activity of an investigative experiment, the discussion regarding the necessity of adopting an additional investigative activity such as verification of testimony on the site has appeared. The aim of the article is to interpret the Art. 240 of the 2012 Criminal Procedure Code to understand its legal content for clarifying the essence of such an investigative action as an \"investigative experiment\", to establish the types of experimental actions, to distinguish them from similar investigative actions, to resolve the issue of the feasibility of enshrining in the current Criminal Procedure Code such an investigative action as checking testimony on the scene. In this article, the authors express an opinion about the inexpediency of transferring this Soviet-era debate, which has been going for almost 50 years, to the modern times. The author's position is determined by the conceptual provisions laid down in the 2012 CPC, the essence of which is that testimony is information provided during an interrogation. The CPC of 2012 contains a procedural mechanism by which an investigator, inquirer, and prosecutor can verify previously submitted statements. Such proper legal procedure is an interrogation, which, in accordance with the requirements of the CPC, can be conducted both at the place of the pre-trial investigation and at another place, which determines the inexpediency of unnecessary legislative duplication.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"223 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296299","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.284895
Oleksii Husiev
The relevance of the article is due to the reform of the legislative framework on national minorities in Ukraine, which is conditioned by European integration. The purpose of the article is to reveal the problems of identifying persons belonging to "old" minorities in Ukraine and discrimination against "new" minorities. In the course of the research, the author used the dialectical method, logical methods of analysis, synthesis, abstraction, comparative research method, forecasting method, and formal legal method. The author analyzes the provisions of the old inclusive Law of Ukraine "On National Minorities in Ukraine", the new exclusive Law of Ukraine "On National Minorities (Communities) of Ukraine", and some international treaties of Ukraine. The author identifies the problems related to the consolidation of the feature of traditional residence on the territory of Ukraine. The author analyzes the legal status of "new" minorities. It is concluded that the adoption of the new Law of Ukraine "On National Minorities (Communities) of Ukraine" has led to the introduction of a differentiated approach to "old" and "new" minorities in Ukraine, but the shortcomings of this Law make it impossible to determine which national minorities belong to the "old" ones. It is emphasized that the "new" minorities have been discriminated against due to the deprivation of their legal status as national minorities (communities) of Ukraine and equalization with the majority. Recommendations are made to address the identified shortcomings by removing from the concept of "national minority (community) of Ukraine" the feature of traditional residence on the territory of Ukraine and defining precise and clear features of settlements where persons belonging to national minorities (communities) traditionally reside or where they constitute a significant part of the population.
{"title":"Problems of Introducing a Differentiated Approach to \"Old\" and \"New\" Minorities in Ukraine","authors":"Oleksii Husiev","doi":"10.21564/2414-990x.162.284895","DOIUrl":"https://doi.org/10.21564/2414-990x.162.284895","url":null,"abstract":"The relevance of the article is due to the reform of the legislative framework on national minorities in Ukraine, which is conditioned by European integration. The purpose of the article is to reveal the problems of identifying persons belonging to \"old\" minorities in Ukraine and discrimination against \"new\" minorities. In the course of the research, the author used the dialectical method, logical methods of analysis, synthesis, abstraction, comparative research method, forecasting method, and formal legal method. The author analyzes the provisions of the old inclusive Law of Ukraine \"On National Minorities in Ukraine\", the new exclusive Law of Ukraine \"On National Minorities (Communities) of Ukraine\", and some international treaties of Ukraine. The author identifies the problems related to the consolidation of the feature of traditional residence on the territory of Ukraine. The author analyzes the legal status of \"new\" minorities. It is concluded that the adoption of the new Law of Ukraine \"On National Minorities (Communities) of Ukraine\" has led to the introduction of a differentiated approach to \"old\" and \"new\" minorities in Ukraine, but the shortcomings of this Law make it impossible to determine which national minorities belong to the \"old\" ones. It is emphasized that the \"new\" minorities have been discriminated against due to the deprivation of their legal status as national minorities (communities) of Ukraine and equalization with the majority. Recommendations are made to address the identified shortcomings by removing from the concept of \"national minority (community) of Ukraine\" the feature of traditional residence on the territory of Ukraine and defining precise and clear features of settlements where persons belonging to national minorities (communities) traditionally reside or where they constitute a significant part of the population.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"223 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135296565","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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