Pub Date : 2023-09-29DOI: 10.21564/2414-990x.162.284666
Nataliia Filatova-Bilous
This article provides a legal analysis of the nature of online platforms. The subject of the article is widely discussed among modern legal scholars since the legal nature of online platforms is very controversial: it is hard to determine the very essence of services provided by platform operators as well as to ensure fair balance of interests between platform operators and their users. The aim of the article is to provide a comprehensive analysis of the relationships emerging between platforms and their users and to show the main challenges brought about by online platforms for the legal regulation and for legal practice. The author starts with analyzing the notion of online platforms and their role in the transformation of modern economy. A special attention is paid on the essence of sharing economy which is considered as a product of platforms’ activity. Then the legal nature of relationships between platforms and their users is explored, i.e. operator-supplier and operator-customer relationships. In this regard, various cases concerning these relationships as well as the most recent European legal acts regulating platforms are analyzed. The main problems arising in practice of platforms’ activities are discussed and the need to provide an appropriate regulation to address them is explained.
{"title":"Online Platforms and New Challenges for Modern Law on E-Commerce","authors":"Nataliia Filatova-Bilous","doi":"10.21564/2414-990x.162.284666","DOIUrl":"https://doi.org/10.21564/2414-990x.162.284666","url":null,"abstract":"This article provides a legal analysis of the nature of online platforms. The subject of the article is widely discussed among modern legal scholars since the legal nature of online platforms is very controversial: it is hard to determine the very essence of services provided by platform operators as well as to ensure fair balance of interests between platform operators and their users. The aim of the article is to provide a comprehensive analysis of the relationships emerging between platforms and their users and to show the main challenges brought about by online platforms for the legal regulation and for legal practice. The author starts with analyzing the notion of online platforms and their role in the transformation of modern economy. A special attention is paid on the essence of sharing economy which is considered as a product of platforms’ activity. Then the legal nature of relationships between platforms and their users is explored, i.e. operator-supplier and operator-customer relationships. In this regard, various cases concerning these relationships as well as the most recent European legal acts regulating platforms are analyzed. The main problems arising in practice of platforms’ activities are discussed and the need to provide an appropriate regulation to address them is explained.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"66 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":"135296569","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 : 2023-06-30DOI: 10.21564/2414-990x.161.278117
A. Kovalenko
With the further development of science and technology, the ways in which offenders use electronic computing devices while committing criminal acts are also changing. Each new method, each manifestation of illegal technology leaves behind specific traces, which in most cases are new for both theorists and practitioners. Identification, extraction and examination of each type of such traces requires unique approaches. Therefore, the task of forensic scientists is to divide the mentioned traces into varieties based on their essential and forensically significant features in order to further develop practical recommendations for working with them. Therefore, the purpose of this article is the formation of a forensic classification of electronic (digital) traces of a criminal offense. To achieve the goal, the methods of generalization, linguistic analysis, formal-legal, formal-logical, comparison, forecasting, analysis and synthesis methods, as well as activity and praxeological approaches in forensic science were used. The author singled out forensically significant features of electronic (digital) traces of a criminal offense and selected three groups of criteria for their classification: according to the features of the trace-forming object, according to the features of computer data as a trace, and according to the features of the carrier (media) of such data (trace-receiving object). Based on the first group of criteria electronic (digital) traces of a criminal offense are divided into varieties according to the trace-forming object; based on the second group of criteria – according to data formatting, according to data content, according to the method of information perception, according to data authenticity, according to the possibility of access; based on the third group – according to the location of the computer data carrier (media), according to the purpose and type of installation of the carrier and by the energy dependence of the storage device of the data carrier. In the author's opinion, scientific research on the further distribution of electronic (digital) traces of criminal offenses into subtypes and the formulation of practically oriented recommendations regarding their detection, collection, examination and use in criminal proceedings are promising.
{"title":"Classification of Electronic (Digital) Traces of Criminal Offenses","authors":"A. Kovalenko","doi":"10.21564/2414-990x.161.278117","DOIUrl":"https://doi.org/10.21564/2414-990x.161.278117","url":null,"abstract":"With the further development of science and technology, the ways in which offenders use electronic computing devices while committing criminal acts are also changing. Each new method, each manifestation of illegal technology leaves behind specific traces, which in most cases are new for both theorists and practitioners. Identification, extraction and examination of each type of such traces requires unique approaches. Therefore, the task of forensic scientists is to divide the mentioned traces into varieties based on their essential and forensically significant features in order to further develop practical recommendations for working with them. Therefore, the purpose of this article is the formation of a forensic classification of electronic (digital) traces of a criminal offense. To achieve the goal, the methods of generalization, linguistic analysis, formal-legal, formal-logical, comparison, forecasting, analysis and synthesis methods, as well as activity and praxeological approaches in forensic science were used. The author singled out forensically significant features of electronic (digital) traces of a criminal offense and selected three groups of criteria for their classification: according to the features of the trace-forming object, according to the features of computer data as a trace, and according to the features of the carrier (media) of such data (trace-receiving object). Based on the first group of criteria electronic (digital) traces of a criminal offense are divided into varieties according to the trace-forming object; based on the second group of criteria – according to data formatting, according to data content, according to the method of information perception, according to data authenticity, according to the possibility of access; based on the third group – according to the location of the computer data carrier (media), according to the purpose and type of installation of the carrier and by the energy dependence of the storage device of the data carrier. In the author's opinion, scientific research on the further distribution of electronic (digital) traces of criminal offenses into subtypes and the formulation of practically oriented recommendations regarding their detection, collection, examination and use in criminal proceedings are promising.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128955621","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 : 2023-06-30DOI: 10.21564/2414-990x.161.273925
O. Popov
The presented research is devoted to the theoretically and practically relevant issue of consideration of exemplary cases by the Supreme Court as a separate procedural tool for ensuring the unity of judicial practice. The purpose of the article is to develop the existing doctrinal views on the problems of functioning of the outlined institute and search for ways to improve the relevant procedures within the national procedural system. Achieving the set goal became possible thanks to the use of a complex of scientific research methods, in particular, dialectical, analysis and synthesis, structural-functional, formal-legal, formal-logical, comparative-legal, etc. Along with the analysis of the legislative categories "typical case" and "exemplary case", the features of such cases, a thorough description of the procedure for consideration of exemplary cases within the special administrative proceedings. The following stages of exemplary proceedings are distinguished as: submission of the case as exemplary; opening proceedings in a exemplary case and publication of a relevant announcement; consideration of the case and adoption of a exemplary decision; review of a exemplary decision. It is argued that the Supreme Court's decision in an exemplary case is the primary goal of ensuring predictability, consistency and uniformity of judicial enforcement in disputes of the same type. In addition, the need to distinguish between the legal opinions of the Supreme Court, formulated in the exemplary decisions and the legal opinions of the Supreme Court, formulated in the decisions on the results of cassation review of court cases, as having a different nature. Special attention is paid to the discussion of the possibility of implementing the institution of exemplary cases in other procedural orders, in particular, civil and economic proceedings. Based on the results of the research, the opinion is supported that despite the existing skepticism among scientists and the fundamental differences in the mechanism of legal regulation of public and private relations, the specificity of some types of private relations, which are characterized by mass, and disputes within the boundaries of which become the subject of judicial proceedings, allows to single out specific typological features of the relevant cases, and therefore, there is a possibility of their exemplary consideration according to the rules of civil procedure. This primarily concerns disputes in the field of consumer protection and tort disputes. In the aspect of the latter, as one of the catalysts for the introduction of the institute under study in civil proceedings, it may be necessary to address the issue of operational protection of civil rights of victims of Russian armed aggression against Ukraine.
{"title":"The Institute for Exemplary Cases as a Procedural Tool to Ensure the Unity of Judicial Practice","authors":"O. Popov","doi":"10.21564/2414-990x.161.273925","DOIUrl":"https://doi.org/10.21564/2414-990x.161.273925","url":null,"abstract":"The presented research is devoted to the theoretically and practically relevant issue of consideration of exemplary cases by the Supreme Court as a separate procedural tool for ensuring the unity of judicial practice. The purpose of the article is to develop the existing doctrinal views on the problems of functioning of the outlined institute and search for ways to improve the relevant procedures within the national procedural system. Achieving the set goal became possible thanks to the use of a complex of scientific research methods, in particular, dialectical, analysis and synthesis, structural-functional, formal-legal, formal-logical, comparative-legal, etc. Along with the analysis of the legislative categories \"typical case\" and \"exemplary case\", the features of such cases, a thorough description of the procedure for consideration of exemplary cases within the special administrative proceedings. The following stages of exemplary proceedings are distinguished as: submission of the case as exemplary; opening proceedings in a exemplary case and publication of a relevant announcement; consideration of the case and adoption of a exemplary decision; review of a exemplary decision. It is argued that the Supreme Court's decision in an exemplary case is the primary goal of ensuring predictability, consistency and uniformity of judicial enforcement in disputes of the same type. In addition, the need to distinguish between the legal opinions of the Supreme Court, formulated in the exemplary decisions and the legal opinions of the Supreme Court, formulated in the decisions on the results of cassation review of court cases, as having a different nature. Special attention is paid to the discussion of the possibility of implementing the institution of exemplary cases in other procedural orders, in particular, civil and economic proceedings. Based on the results of the research, the opinion is supported that despite the existing skepticism among scientists and the fundamental differences in the mechanism of legal regulation of public and private relations, the specificity of some types of private relations, which are characterized by mass, and disputes within the boundaries of which become the subject of judicial proceedings, allows to single out specific typological features of the relevant cases, and therefore, there is a possibility of their exemplary consideration according to the rules of civil procedure. This primarily concerns disputes in the field of consumer protection and tort disputes. In the aspect of the latter, as one of the catalysts for the introduction of the institute under study in civil proceedings, it may be necessary to address the issue of operational protection of civil rights of victims of Russian armed aggression against Ukraine.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133785425","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 : 2023-06-30DOI: 10.21564/2414-990x.161.280117
Maksym Romchuk
Permanent neutrality and the organization of collective security is a complex and ambiguous choice that Ukraine has faced since gaining independence. The purpose of the article is to study the evolution of the security policy of independent Ukraine, which has gone a long way from the proclamation of the status of a permanently neutral and non-aligned state to the constitutionally enshrined foreign policy course towards Euro-Atlantic integration. The work uses historical, dogmatic and comparative legal methods in the course of studying the historical aspect of the genesis of national security policy. The author uses the dialectical method to study various ways of ensuring national security, which made it possible to distinguish two ways: the declaration of the status of a permanently neutral state or participation in a collective security organization. The chronological boundaries of the study are defined from the moment of proclamation of Ukraine’s state sovereignty. The article proves that political and scientific debates on the benefits of neutrality or participation in a collective security organization for ensuring the sovereignty and territorial integrity of the state, as well as its national security of European countries, are related to the bipolar model of international relations that emerged during the Cold War era. Under these conditions, some European states (Austria, Ireland, Finland, Sweden), despite the negative outcome of World War II, when the status of neutral states was grossly violated, still wanted to stay outside the confrontation between the two military and political blocs. To this end, they declared themselves permanently neutral and participated in the non-aligned movement. The article notes that the departure from the bipolar model has temporarily dampened the debate. However, the policy of revanchism and neo-imperial ideology adopted by the Russian leadership forced European states to rethink the feasibility of maintaining permanent neutrality in the context of the current geopolitical situation. The author reveals that at the time of the creation of the Ukrainian state, the preference for the status of a permanently neutral and non-aligned state as a guarantee of Ukraine’s national security was conditioned by the presence of nuclear weapons on its territory, which made it impossible to participate in the collective security organization (NATO). Ukraine’s nuclear disarmament, which was carried out under pressure from Russia and the United States, opened the way for normalization of relations with the European Union and NATO. At the same time, having chosen NATO membership as a guarantee of successful security, Ukraine in the twenty-first century demonstrated ineffectiveness in realizing its intention due to fluctuations in the foreign policy course of Ukrainian presidents. The aggression against Ukraine launched by Russia in 2014 made participation in the collective security organization (NATO) a matter of time. The app
{"title":"From Neutral Status to a Course Towards Collective Security: Evolution of Ukraine's Approaches to Ensuring National Security","authors":"Maksym Romchuk","doi":"10.21564/2414-990x.161.280117","DOIUrl":"https://doi.org/10.21564/2414-990x.161.280117","url":null,"abstract":"Permanent neutrality and the organization of collective security is a complex and ambiguous choice that Ukraine has faced since gaining independence. The purpose of the article is to study the evolution of the security policy of independent Ukraine, which has gone a long way from the proclamation of the status of a permanently neutral and non-aligned state to the constitutionally enshrined foreign policy course towards Euro-Atlantic integration. The work uses historical, dogmatic and comparative legal methods in the course of studying the historical aspect of the genesis of national security policy. The author uses the dialectical method to study various ways of ensuring national security, which made it possible to distinguish two ways: the declaration of the status of a permanently neutral state or participation in a collective security organization. The chronological boundaries of the study are defined from the moment of proclamation of Ukraine’s state sovereignty. The article proves that political and scientific debates on the benefits of neutrality or participation in a collective security organization for ensuring the sovereignty and territorial integrity of the state, as well as its national security of European countries, are related to the bipolar model of international relations that emerged during the Cold War era. Under these conditions, some European states (Austria, Ireland, Finland, Sweden), despite the negative outcome of World War II, when the status of neutral states was grossly violated, still wanted to stay outside the confrontation between the two military and political blocs. To this end, they declared themselves permanently neutral and participated in the non-aligned movement. The article notes that the departure from the bipolar model has temporarily dampened the debate. However, the policy of revanchism and neo-imperial ideology adopted by the Russian leadership forced European states to rethink the feasibility of maintaining permanent neutrality in the context of the current geopolitical situation. The author reveals that at the time of the creation of the Ukrainian state, the preference for the status of a permanently neutral and non-aligned state as a guarantee of Ukraine’s national security was conditioned by the presence of nuclear weapons on its territory, which made it impossible to participate in the collective security organization (NATO). Ukraine’s nuclear disarmament, which was carried out under pressure from Russia and the United States, opened the way for normalization of relations with the European Union and NATO. At the same time, having chosen NATO membership as a guarantee of successful security, Ukraine in the twenty-first century demonstrated ineffectiveness in realizing its intention due to fluctuations in the foreign policy course of Ukrainian presidents. The aggression against Ukraine launched by Russia in 2014 made participation in the collective security organization (NATO) a matter of time. The app","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127198402","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 : 2023-06-30DOI: 10.21564/2414-990x.161.278849
S. Kharytonov
The article is devoted to the disclosure of the concept of “looting” and the description of the characteristic criminal law elements and signs of this military offense. The relevance of the presented material lies in the fact that there are not enough highly qualified specialists in the field of military-criminal and military-administrative legislation in Ukraine, that has a negative effect on the correct qualification of military offenses, the level of which has significantly increased against the background of full-scale military aggression by the Russian Federation. The aim of the article lies in formulation and suggestions regarding a decision on peculiarities of the criminal law characteristics of looting and distinguishing this offense from the related offenses against property. The research is based on the use of scientific methods of general scientific and special-legal levels. The obtained results allow to claim that looting is a crime of war or local armed conflict, committed by violent or non-violent means of misappropriation of personal belongings of the killed or wounded. The place of commission of this war crime can only be a battlefield or rear areas which are subjected to artillery, mortar, and rocket fire.
{"title":"Looting: Criminal Law Characteristic","authors":"S. Kharytonov","doi":"10.21564/2414-990x.161.278849","DOIUrl":"https://doi.org/10.21564/2414-990x.161.278849","url":null,"abstract":"The article is devoted to the disclosure of the concept of “looting” and the description of the characteristic criminal law elements and signs of this military offense. The relevance of the presented material lies in the fact that there are not enough highly qualified specialists in the field of military-criminal and military-administrative legislation in Ukraine, that has a negative effect on the correct qualification of military offenses, the level of which has significantly increased against the background of full-scale military aggression by the Russian Federation. The aim of the article lies in formulation and suggestions regarding a decision on peculiarities of the criminal law characteristics of looting and distinguishing this offense from the related offenses against property. The research is based on the use of scientific methods of general scientific and special-legal levels. The obtained results allow to claim that looting is a crime of war or local armed conflict, committed by violent or non-violent means of misappropriation of personal belongings of the killed or wounded. The place of commission of this war crime can only be a battlefield or rear areas which are subjected to artillery, mortar, and rocket fire.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"94 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116553052","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 : 2023-06-30DOI: 10.21564/2414-990x.161.281091
A. Fedorova, Olha Holovashchenko
One of the most significant social achievements of the twentieth century was the development and implementation of the welfare state concept within the framework of the theory of a democratic, rule-of-law state which ensures the best option for social and economic development, as well as political stability in society. It is proved that although, since the 1970s, some economists, political scientists and lawyers have periodically sharply criticized the concept of the welfare State, predicting its decline, the positive results of its transformation in European countries, as well as the development of the European Social Community within the European Union, show that the welfare State has a chance not only to survive, but also to remain one of the fundamental principles of statehood in democratic countries, and an element of the supranational organization of power embodied in the European Union.The purpose of the article is to analyze the traditional and new challenges to the welfare state which determine the change of approaches to its functioning and priorities at the current stage of development of state-legal and interstate (integration) relations.The key idea that structures the study is the thesis that European states that form a united Europe or aspire to join it, such as Ukraine, despite belonging to the same civilizational community, retain the right to choose how to respond to the economic, social, demographic, migration, environmental and climate challenges of our time. This choice determines the future of national welfare state models. In accordance with the stated goal, the article identifies two groups of major challenges: established (demographic changes, in particular, population aging; changes in the position of women in society and in the labor market; changes in the labor market; poverty and social exclusion) and new (rapid growth of emigration of Ukrainian doctors and nurses; introduction of artificial intelligence technologies; uncontrolled mass immigration; rapid growth of disability in society) faced by the welfare state and, mainly, the social security system, which is its foundation. While the established challenges require adjustments to the priorities and tasks of the welfare state, the newest ones require a significant modernization of the welfare state, adapting it to the new political, economic and social conditions of society.Further research on the selected issues should be conducted taking into account the existence of certain models of the welfare state that unite European states either by geographical (Scandinavian, continental, Anglo-Saxon, Southern European) or ideological (liberal, conservative, social democratic, corporate, solidarity) criteria.The problem of the welfare state's response to the challenges of environmental and climate crises deserves separate development, and in the context of this consideration, the correlation between the social and environmental (“green”) state.
{"title":"Challenges as a Driving Force for the Modernization of Social Statehood in Europe","authors":"A. Fedorova, Olha Holovashchenko","doi":"10.21564/2414-990x.161.281091","DOIUrl":"https://doi.org/10.21564/2414-990x.161.281091","url":null,"abstract":"One of the most significant social achievements of the twentieth century was the development and implementation of the welfare state concept within the framework of the theory of a democratic, rule-of-law state which ensures the best option for social and economic development, as well as political stability in society. It is proved that although, since the 1970s, some economists, political scientists and lawyers have periodically sharply criticized the concept of the welfare State, predicting its decline, the positive results of its transformation in European countries, as well as the development of the European Social Community within the European Union, show that the welfare State has a chance not only to survive, but also to remain one of the fundamental principles of statehood in democratic countries, and an element of the supranational organization of power embodied in the European Union.The purpose of the article is to analyze the traditional and new challenges to the welfare state which determine the change of approaches to its functioning and priorities at the current stage of development of state-legal and interstate (integration) relations.The key idea that structures the study is the thesis that European states that form a united Europe or aspire to join it, such as Ukraine, despite belonging to the same civilizational community, retain the right to choose how to respond to the economic, social, demographic, migration, environmental and climate challenges of our time. This choice determines the future of national welfare state models. In accordance with the stated goal, the article identifies two groups of major challenges: established (demographic changes, in particular, population aging; changes in the position of women in society and in the labor market; changes in the labor market; poverty and social exclusion) and new (rapid growth of emigration of Ukrainian doctors and nurses; introduction of artificial intelligence technologies; uncontrolled mass immigration; rapid growth of disability in society) faced by the welfare state and, mainly, the social security system, which is its foundation. While the established challenges require adjustments to the priorities and tasks of the welfare state, the newest ones require a significant modernization of the welfare state, adapting it to the new political, economic and social conditions of society.Further research on the selected issues should be conducted taking into account the existence of certain models of the welfare state that unite European states either by geographical (Scandinavian, continental, Anglo-Saxon, Southern European) or ideological (liberal, conservative, social democratic, corporate, solidarity) criteria.The problem of the welfare state's response to the challenges of environmental and climate crises deserves separate development, and in the context of this consideration, the correlation between the social and environmental (“green”) state.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116012842","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 : 2023-06-30DOI: 10.21564/2414-990x.161.274470
Kira Shestopal
The relevance of the topic is due to the fact that the latest judicial reform has provoked a considerable influence on procedural relations and caused a number of problems for legal practitioners. The development of the main theoretical provisions took place since the 70s of the last century. In these studies, considerable attention was always paid to the procedural possibilities of applying to the court of first instance. At the same time, since the restoration of Ukrainian statehood, scientists have researched the value, limits of powers and, in general, the status of the Supreme Court in Ukraine. Ukraine has gone through many judicial reforms, most of which related to the courts of first instance and appeals. The main novelty, of the latest judicial reform, to which attention is paid in the article, is the updated grounds for filing a cassation appeal. Ukraine has declared a European course and adds all efforts to become part of the European family. That is why the latest judicial reform, which introduced these novellas, was carried out in the context of the European course. At the same time, the legal regulation of the possibility of applying to the court of cassation, actually restrict the constitutional rights and freedoms of a citizen, does not meet the standards announced in the decisions of the Constitutional Court of Ukraine and in the European standards, which became the main problem. The purpose of the article is to study the working documents that accompanied the relevant bills on amendments to the Constitution of Ukraine on justice, decisions of the Constitutional Court of Ukraine, the Supreme Court, as well as decisions of the European Court of Human Rights (hereinafter – the ECHR). The achievement of the outlined goal became possible due to the use of a set of methods of information analysis and synthesis. The article highlights and analyzes the working documents that accompanied the constitutional amendments on justice, the decisions of the Constitutional Court of Ukraine and the Supreme Court, the practice of the European Court of Human Rights, with the aim of identifying substantive disagreements and shortcomings. It is emphasized that the changes (at the constitutional and legislative level) actually restrict the content and scope of rights and freedoms, regarding the possibility of cassation appeal of court decisions, which were guaranteed by the Constitution of Ukraine and do not meet the principle of legal certainty. Based on the results of the study, conclusions were formulated and recommendations were made on the implementation of the right to appeal to the court of cassation.
{"title":"Updated Grounds for Filing a Cassation Appeal: Constitutional Limitation or Constitutional Violation?","authors":"Kira Shestopal","doi":"10.21564/2414-990x.161.274470","DOIUrl":"https://doi.org/10.21564/2414-990x.161.274470","url":null,"abstract":"The relevance of the topic is due to the fact that the latest judicial reform has provoked a considerable influence on procedural relations and caused a number of problems for legal practitioners. The development of the main theoretical provisions took place since the 70s of the last century. In these studies, considerable attention was always paid to the procedural possibilities of applying to the court of first instance. At the same time, since the restoration of Ukrainian statehood, scientists have researched the value, limits of powers and, in general, the status of the Supreme Court in Ukraine. Ukraine has gone through many judicial reforms, most of which related to the courts of first instance and appeals. The main novelty, of the latest judicial reform, to which attention is paid in the article, is the updated grounds for filing a cassation appeal. Ukraine has declared a European course and adds all efforts to become part of the European family. That is why the latest judicial reform, which introduced these novellas, was carried out in the context of the European course. At the same time, the legal regulation of the possibility of applying to the court of cassation, actually restrict the constitutional rights and freedoms of a citizen, does not meet the standards announced in the decisions of the Constitutional Court of Ukraine and in the European standards, which became the main problem. The purpose of the article is to study the working documents that accompanied the relevant bills on amendments to the Constitution of Ukraine on justice, decisions of the Constitutional Court of Ukraine, the Supreme Court, as well as decisions of the European Court of Human Rights (hereinafter – the ECHR). The achievement of the outlined goal became possible due to the use of a set of methods of information analysis and synthesis. The article highlights and analyzes the working documents that accompanied the constitutional amendments on justice, the decisions of the Constitutional Court of Ukraine and the Supreme Court, the practice of the European Court of Human Rights, with the aim of identifying substantive disagreements and shortcomings. It is emphasized that the changes (at the constitutional and legislative level) actually restrict the content and scope of rights and freedoms, regarding the possibility of cassation appeal of court decisions, which were guaranteed by the Constitution of Ukraine and do not meet the principle of legal certainty. Based on the results of the study, conclusions were formulated and recommendations were made on the implementation of the right to appeal to the court of cassation.","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134345947","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 : 2023-06-30DOI: 10.21564/2414-990x.161.272475
Galang Lazuardi, S. ., S. Kunarti
The sale and purchase of land rights is usually carried out by means of an agreement or what is known as a land rights sale and purchase agreement. In the case of the transfer of land rights, the formal conditions for the sale and purchase of land rights must be proven by a deed of sale and purchase drawn up by and before an authorized official. Before the sale and purchase agreement is carried out, it is usually done with the initial agreement which the deed is drawn up by a notary. The responsibilities of a notary as a public official include the responsibilities of the notary profession itself which are related to the deed, including, the responsibility of a notary in civil terms for the deed he makes relates to the material truth of the deed. Then regarding joint assets that are sold without the consent of the husband and/or wife, is it possible, and does the notary have any responsibility for that. Then there is a court decision regarding joint assets which legalizes the sale and purchase deed because of the good faith buyer's consideration as stipulated in the Supreme Court Circular Letter No. 7 of 2012. The purpose of this study is to analyze the responsibility of a Notary related to the sale and purchase of joint assets and the legal considerations of judges who decide cases based on a circular letter which is not a general rule but an internal one that is not well known to the public. The research method used is normative, using secondary data obtained from library research including primary, secondary and tertiary legal sources. The responsibility of the notary, namely in making the deed of sale and purchase of joint property, is a civil responsibility, that is, all the regulations regulated in the UUJN only provide sanctions for violations of a formal notary, for example the rules for issuing deed and others. Judges should in deciding a case use general rules that are understood and understood by the community instead of using internal rules from the court itself which are not understood by the community, especially regarding buyers with good intentions.
{"title":"Analysis of Judges' Legal Considerations Against the Sale of Joint Assets Without the Wife's Agreement in the Study of Positive Law in Indonesia","authors":"Galang Lazuardi, S. ., S. Kunarti","doi":"10.21564/2414-990x.161.272475","DOIUrl":"https://doi.org/10.21564/2414-990x.161.272475","url":null,"abstract":"The sale and purchase of land rights is usually carried out by means of an agreement or what is known as a land rights sale and purchase agreement. In the case of the transfer of land rights, the formal conditions for the sale and purchase of land rights must be proven by a deed of sale and purchase drawn up by and before an authorized official. Before the sale and purchase agreement is carried out, it is usually done with the initial agreement which the deed is drawn up by a notary. The responsibilities of a notary as a public official include the responsibilities of the notary profession itself which are related to the deed, including, the responsibility of a notary in civil terms for the deed he makes relates to the material truth of the deed. Then regarding joint assets that are sold without the consent of the husband and/or wife, is it possible, and does the notary have any responsibility for that. Then there is a court decision regarding joint assets which legalizes the sale and purchase deed because of the good faith buyer's consideration as stipulated in the Supreme Court Circular Letter No. 7 of 2012. The purpose of this study is to analyze the responsibility of a Notary related to the sale and purchase of joint assets and the legal considerations of judges who decide cases based on a circular letter which is not a general rule but an internal one that is not well known to the public. The research method used is normative, using secondary data obtained from library research including primary, secondary and tertiary legal sources. The responsibility of the notary, namely in making the deed of sale and purchase of joint property, is a civil responsibility, that is, all the regulations regulated in the UUJN only provide sanctions for violations of a formal notary, for example the rules for issuing deed and others. Judges should in deciding a case use general rules that are understood and understood by the community instead of using internal rules from the court itself which are not understood by the community, especially regarding buyers with good intentions.\u0000 ","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134432050","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 : 2023-06-30DOI: 10.21564/2414-990x.161.283096
Valeriia Korelova, Ya. Ryabchenko, Anna Solodka
The relevance of this topic is determined to the fact that during the introduction of the legal regime of martial law, the activities of public authorities, in particular the executive, have certain peculiarities/ On February 24, 2022, the President of Ukraine, based on the proposal of the National Security and Defense Council of Ukraine, in accordance with clause 20, part 1 of Article 106 of the Constitution of Ukraine and the Law of Ukraine "On Legal Martial Law" introduced the martial law regime in connection with the invasion of the Russian Federation in Ukraine, which stipulate for changes in the work of executive authorities, in particular the Cabinet of Ministers of Ukraine, and cause to the formation of military administrations. The purpose of the article is to study of the legal nature of the martial law regime and the procedure for its introduction, to reveal the main peculiarities of the activities of the executive authorities, in particular the Cabinet of Ministers of Ukraine and military administrations, during the introduction of the martial law regime, as well as the study of their interaction with each other. Achieving the outlined purpose became possible for the application of the used complex of methods of scientific knowledge, in particular, the dialectical method (for comprehensive knowledge of the nature of the legal regime of martial law and its conduct, determination of the order of formation and functions of military administrations, analysis of the peculiarities of the activity of the Cabinet of Ministers of Ukraine), the formal-legal method (for establishing the content of legal norms), the formal-logical method (to identify deficiencies in national legal regulation), the comparative-legal method (to study the experience of other countries and determine the procedures for introducing the legal regime of martial law), communicative method (to determine the influence of the Cabinet of Ministers of Ukraine on military administrations and to analyze the directions of their interaction). The review of the current legislation of Ukraine and the legislative acts of other countries regarding the procedure for conducting and legal regulation of the martial law regime are analyzed. The nature of the emergence of military administrations has been analyzed, and it has been found that they are temporary bodies of executive power for the period of martial law. It is noted that is placed on their powers to ensure law and order and support the country's defense capability in the settlements under their control. The peculiarities of the activity of the Cabinet of Ministers of Ukraine during the period of martial law were studied. The directions of interaction between the military administrations and the Cabinet of Ministers to ensure the functioning of all areas of the country's life have been clarified. According to the results of the study on avoiding any divergence in law enforcement approaches in the future, separate proposals were m
{"title":"The Influence of Martial Law on the Activities of the Cabinet of Ministers of Ukraine and Military Administrations","authors":"Valeriia Korelova, Ya. Ryabchenko, Anna Solodka","doi":"10.21564/2414-990x.161.283096","DOIUrl":"https://doi.org/10.21564/2414-990x.161.283096","url":null,"abstract":"The relevance of this topic is determined to the fact that during the introduction of the legal regime of martial law, the activities of public authorities, in particular the executive, have certain peculiarities/ On February 24, 2022, the President of Ukraine, based on the proposal of the National Security and Defense Council of Ukraine, in accordance with clause 20, part 1 of Article 106 of the Constitution of Ukraine and the Law of Ukraine \"On Legal Martial Law\" introduced the martial law regime in connection with the invasion of the Russian Federation in Ukraine, which stipulate for changes in the work of executive authorities, in particular the Cabinet of Ministers of Ukraine, and cause to the formation of military administrations. The purpose of the article is to study of the legal nature of the martial law regime and the procedure for its introduction, to reveal the main peculiarities of the activities of the executive authorities, in particular the Cabinet of Ministers of Ukraine and military administrations, during the introduction of the martial law regime, as well as the study of their interaction with each other. Achieving the outlined purpose became possible for the application of the used complex of methods of scientific knowledge, in particular, the dialectical method (for comprehensive knowledge of the nature of the legal regime of martial law and its conduct, determination of the order of formation and functions of military administrations, analysis of the peculiarities of the activity of the Cabinet of Ministers of Ukraine), the formal-legal method (for establishing the content of legal norms), the formal-logical method (to identify deficiencies in national legal regulation), the comparative-legal method (to study the experience of other countries and determine the procedures for introducing the legal regime of martial law), communicative method (to determine the influence of the Cabinet of Ministers of Ukraine on military administrations and to analyze the directions of their interaction). The review of the current legislation of Ukraine and the legislative acts of other countries regarding the procedure for conducting and legal regulation of the martial law regime are analyzed. The nature of the emergence of military administrations has been analyzed, and it has been found that they are temporary bodies of executive power for the period of martial law. It is noted that is placed on their powers to ensure law and order and support the country's defense capability in the settlements under their control. The peculiarities of the activity of the Cabinet of Ministers of Ukraine during the period of martial law were studied. The directions of interaction between the military administrations and the Cabinet of Ministers to ensure the functioning of all areas of the country's life have been clarified. According to the results of the study on avoiding any divergence in law enforcement approaches in the future, separate proposals were m","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114292656","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 : 2023-06-30DOI: 10.21564/2414-990x.161.278003
Ali Masum, S. ., Tri Prihatinah
Law Number 5 of 1960 concerning Basic Agrarian Principles in Article 2 states that every Indonesian citizen has full rights over land, water, and airspace located in Indonesia, so only Indonesian citizens are entitled to have ownership rights over land in Indonesia. This is a principle of nationalism in agrarian law. Foreigners who are in Indonesia are only entitled to land use rights in Indonesia. This regulation sometimes poses difficulties for foreign nationals who want to invest in Indonesia, due to the requirement of land ownership in Indonesia not being fulfilled. This obstacle causes some parties to take illegal actions in land ownership in Indonesia, one of which is by making a nominee agreement. However, nominee agreements in Indonesia have not been clearly regulated in legislation. The issues raised in this research are the validity of nominee agreements according to the Civil Code and Basic Agrarian Law, as well as the role and responsibility of notaries in making nominee agreements, using the case study of the verdict of the Denpasar District Court Number 426/Pdt.G/2020/PN Dps. To answer these issues, normative juridical research method with prescriptive research method is used. The result of the analysis and research is to analyze the nominee agreement and its validity from the perspective of the Civil Code and Basic Agrarian Law. In addition, it analyzes the role and responsibility of notaries in nominee agreements with a case study in the verdict of the Denpasar District Court Number 426/Pdt.G/2020/PN Dps. The suggestion given is that notaries in making a legal product should pay attention to the applicable legal foundations in Indonesia so that the resulting deed is in accordance with the legislation in Indonesia
{"title":"The Responsibility of Notary in Making Nominee Agreements for Foreign Citizens in Indonesia","authors":"Ali Masum, S. ., Tri Prihatinah","doi":"10.21564/2414-990x.161.278003","DOIUrl":"https://doi.org/10.21564/2414-990x.161.278003","url":null,"abstract":"Law Number 5 of 1960 concerning Basic Agrarian Principles in Article 2 states that every Indonesian citizen has full rights over land, water, and airspace located in Indonesia, so only Indonesian citizens are entitled to have ownership rights over land in Indonesia. This is a principle of nationalism in agrarian law. Foreigners who are in Indonesia are only entitled to land use rights in Indonesia. This regulation sometimes poses difficulties for foreign nationals who want to invest in Indonesia, due to the requirement of land ownership in Indonesia not being fulfilled. This obstacle causes some parties to take illegal actions in land ownership in Indonesia, one of which is by making a nominee agreement. However, nominee agreements in Indonesia have not been clearly regulated in legislation. The issues raised in this research are the validity of nominee agreements according to the Civil Code and Basic Agrarian Law, as well as the role and responsibility of notaries in making nominee agreements, using the case study of the verdict of the Denpasar District Court Number 426/Pdt.G/2020/PN Dps. To answer these issues, normative juridical research method with prescriptive research method is used. The result of the analysis and research is to analyze the nominee agreement and its validity from the perspective of the Civil Code and Basic Agrarian Law. In addition, it analyzes the role and responsibility of notaries in nominee agreements with a case study in the verdict of the Denpasar District Court Number 426/Pdt.G/2020/PN Dps. The suggestion given is that notaries in making a legal product should pay attention to the applicable legal foundations in Indonesia so that the resulting deed is in accordance with the legislation in Indonesia","PeriodicalId":417369,"journal":{"name":"Problems of Legality","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132001736","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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