Pub Date : 2023-01-01DOI: 10.17721/2227-796x.2023.1.03
V. Budkevych
The purpose of the scientific paper is to explore the foreign and national historical preconditions and the logic of the development of the sub-institute of electronic evidence, with a primary focus on the administrative proceeding in Ukraine, based on the documented factual data of different periods. Considering the theoretical nature of the present research, the main research methods used in the course of its preparation are as follows: combination of historical and logical, systematic method, methods of comparison, description, generalization, synthesis and induction, convergence from general to local. As a result of the research the main trends of the development of the sub-institute of electronic evidence in the administrative proceeding during different historical periods were studied, with a special emphasis on the foreign pre-history of the emergence and the development of the legal provisions related to electronic evidence. Key findings (conclusions) of the study are briefly summarized below. The legal provisions on electronic evidence have been subject to numerous amendments beginning from the 1970th, when they were firstly implemented in the procedural legislation in United States of America. Considering the fact that the matter of periodization is always an open question, in the author’s view the historical development of the regulation regarding electronic evidence may be divided into four main periods: 1) From the 1970th to the early 1990th (this period is related to the emergence of the first national cases of specific legislation, forensic practices and scientific researches); 2) From the 1970th to the early 2000th (when the transformation of the approaches to the understanding of the electronic evidence’s essence happened, and the issue on the autonomous role of electronic evidence within the system of evidence was raised); 3) From 2000 to 2010 (this period is associated with the active development of the legislation and the legal practice on the electronic evidence); 4) From 2010 till nowadays ( this is the present stage of the legal provisions on the electronic evidence’s development, when a special definition and procedural rules for electronic evidence were implemented into the national procedural codes, including the Code of the Administrative Procedure of Ukraine).
{"title":"THE LEGAL ESSENCE OF THE ELECTRONIC EVIDENCE IN THE ADMINISTRATIVE PROCEDURE: A BRIEF COMPARATIVE HISTORICAL AND LEGAL ANALYSIS","authors":"V. Budkevych","doi":"10.17721/2227-796x.2023.1.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2023.1.03","url":null,"abstract":"The purpose of the scientific paper is to explore the foreign and national historical preconditions and the logic of the development of the sub-institute of electronic evidence, with a primary focus on the administrative proceeding in Ukraine, based on the documented factual data of different periods. Considering the theoretical nature of the present research, the main research methods used in the course of its preparation are as follows: combination of historical and logical, systematic method, methods of comparison, description, generalization, synthesis and induction, convergence from general to local. As a result of the research the main trends of the development of the sub-institute of electronic evidence in the administrative proceeding during different historical periods were studied, with a special emphasis on the foreign pre-history of the emergence and the development of the legal provisions related to electronic evidence. Key findings (conclusions) of the study are briefly summarized below. The legal provisions on electronic evidence have been subject to numerous amendments beginning from the 1970th, when they were firstly implemented in the procedural legislation in United States of America. Considering the fact that the matter of periodization is always an open question, in the author’s view the historical development of the regulation regarding electronic evidence may be divided into four main periods: 1) From the 1970th to the early 1990th (this period is related to the emergence of the first national cases of specific legislation, forensic practices and scientific researches); 2) From the 1970th to the early 2000th (when the transformation of the approaches to the understanding of the electronic evidence’s essence happened, and the issue on the autonomous role of electronic evidence within the system of evidence was raised); 3) From 2000 to 2010 (this period is associated with the active development of the legislation and the legal practice on the electronic evidence); 4) From 2010 till nowadays ( this is the present stage of the legal provisions on the electronic evidence’s development, when a special definition and procedural rules for electronic evidence were implemented into the national procedural codes, including the Code of the Administrative Procedure of Ukraine).","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89373907","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.17721/2227-796x.2023.1.01
Wiktor Branowicki
The Goal. The goal of the article is to determine the features of the legal status of the Council as a subject of public administration and to formulate ways to optimize, harmonize and bring into line with the legal realities of the regulatory and legal support of its functioning. Methods. The article uses general and special-scientific methodology of legal research, including systemic, systemic-structural, comparative-legal, analysis and synthesis, deduction and induction and other methods of scientific cognition. Results. Section 1 of the article outlines the key features of the legal status of the National Security and Defense Council of Ukraine, which distinguish it from other subjects of public administration that carry out public administration of the field of nature management. Section 2 of the article outlines the debatable issues of the competence of the National Security and Defense Council of Ukraine, in particular, it highlights the inconsistency of the decisions taken by it and the powers granted to them by the current legislation and the essence of the concept of "national security", which is decisive in establishing its subject jurisdiction. Section 3 pays attention to determining the appropriateness of vesting the National Security and Defense Council of Ukraine with control powers, an analysis of legislative provisions on coordination bodies established under public authorities was carried out, and it was concluded that the powers belonging to it contradict the essence, goals, instruments of activity, etc. of coordination (consulting, advisory) bodies. Conclusions. The conclusions, which constitute Section 5 of the article, summarize that the National Security and Defense Council of Ukraine is a specific subject of public administration, which is entrusted with a number of powers that differ in their essence and purpose and contribute to improving and ensuring proper public administration in particular in the field of nature management. It is noted that there are numerous flaws in the current legislation, which serves as the foundation for its operations, due to which the legality of its decisions raises reasonable doubts. It is suggested to implement a number of actions to address the issues and gaps in the legislative framework governing the operations of the National Security and Defense Council of Ukraine and the practice of its activities, including the need to clearly define and clarify its legal status, harmonize the provisions of normative legal acts among themselves, conduct outreach and training of employees of the National Security and Defense Council of Ukraine, etc. considering the practical comprehension and application of legal standards in terms of the definition of the national security term and its competence. The aforementioned calls for the continuation of scientific research on institutional support for public administration in the field of nature management, including questions of legal foundations and the s
{"title":"PECULIARITIES OF DETERMINING THE LEGAL STATUS OF THE NATIONAL SECURITY AND DEFENSE COUNCIL OF UKRAINE AS A SUBJECT OF PUBLIC ADMINISTRATION","authors":"Wiktor Branowicki","doi":"10.17721/2227-796x.2023.1.01","DOIUrl":"https://doi.org/10.17721/2227-796x.2023.1.01","url":null,"abstract":"The Goal. The goal of the article is to determine the features of the legal status of the Council as a subject of public administration and to formulate ways to optimize, harmonize and bring into line with the legal realities of the regulatory and legal support of its functioning. Methods. The article uses general and special-scientific methodology of legal research, including systemic, systemic-structural, comparative-legal, analysis and synthesis, deduction and induction and other methods of scientific cognition. Results. Section 1 of the article outlines the key features of the legal status of the National Security and Defense Council of Ukraine, which distinguish it from other subjects of public administration that carry out public administration of the field of nature management. Section 2 of the article outlines the debatable issues of the competence of the National Security and Defense Council of Ukraine, in particular, it highlights the inconsistency of the decisions taken by it and the powers granted to them by the current legislation and the essence of the concept of \"national security\", which is decisive in establishing its subject jurisdiction. Section 3 pays attention to determining the appropriateness of vesting the National Security and Defense Council of Ukraine with control powers, an analysis of legislative provisions on coordination bodies established under public authorities was carried out, and it was concluded that the powers belonging to it contradict the essence, goals, instruments of activity, etc. of coordination (consulting, advisory) bodies. Conclusions. The conclusions, which constitute Section 5 of the article, summarize that the National Security and Defense Council of Ukraine is a specific subject of public administration, which is entrusted with a number of powers that differ in their essence and purpose and contribute to improving and ensuring proper public administration in particular in the field of nature management. It is noted that there are numerous flaws in the current legislation, which serves as the foundation for its operations, due to which the legality of its decisions raises reasonable doubts. It is suggested to implement a number of actions to address the issues and gaps in the legislative framework governing the operations of the National Security and Defense Council of Ukraine and the practice of its activities, including the need to clearly define and clarify its legal status, harmonize the provisions of normative legal acts among themselves, conduct outreach and training of employees of the National Security and Defense Council of Ukraine, etc. considering the practical comprehension and application of legal standards in terms of the definition of the national security term and its competence. The aforementioned calls for the continuation of scientific research on institutional support for public administration in the field of nature management, including questions of legal foundations and the s","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90660546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.17721/2227-796x.2023.1.02
O. Kuzmichov
Purpose. The purpose of the article is to justify the need to adopt a specialized law “On Food Security of Ukraine” and define its concept. Methodology. The research methodology consists of: comparative, system-structural, formallogical methods. Their use made it possible to: analyze and determine the current state of regulatory regulation of public administration in the field of ensuring food safety in Ukraine, to investigate the regulation of the specified relations in individual EU member countries (Germany, Austria, Spain), to form a holistic view of the concept of the future law on food safety of Ukraine. Results. The first section of the article defines the current state of regulatory regulation of public relations regarding public administration in the field of food security of Ukraine. It has been established that such normative regulation is not effective, because there is no basic law of Ukraine, which could be the basis for the implementation of the corresponding function of public administration. The second part of the article is devoted to the research of regulatory regulation of public relations in relation to public administration in the field of ensuring food security in certain member states of the European Union, and in particular in: Germany, Austria and Spain. It has been clarified that the central goal of ensuring food safety in these countries and in the European Union as a whole is to ensure the safety of food products for consumers. In addition, it was found that at the level of national legislation in various EU countries there is a basic law or a set of laws that regulate public administration in this area. The third section of the article is devoted to the formation of the concept of the future law on food security of Ukraine. It was emphasized that this law should clearly define the competence and powers of public administration subjects in this area, establish a mechanism for guaranteeing the physical and economic availability of food products for everyone, and lay a legal basis for the interaction of public administration and civil society institutions in the field of ensuring food security of Ukraine. Conclusions. In the conclusions to the article, it is stated that the new law on food security of Ukraine must clearly define the system of permanent goals and objectives of the public administration in the field of ensuring food security of Ukraine, delimit the powers and competence of the subjects of the public administration within this functional direction of their activity, define the mechanism guaranteeing everyone physical and economic availability of food and essential goods, laying the legal basis for the interaction of public administration and civil society institutions in this area.
{"title":"THE LAW ON FOOD SECURITY OF UKRAINE AS A LEGAL BASIS OF PUBLIC ADMINISTRATION IN THE FIELD OF ENSURING FOOD SECURITY","authors":"O. Kuzmichov","doi":"10.17721/2227-796x.2023.1.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2023.1.02","url":null,"abstract":"Purpose. The purpose of the article is to justify the need to adopt a specialized law “On Food Security of Ukraine” and define its concept. Methodology. The research methodology consists of: comparative, system-structural, formallogical methods. Their use made it possible to: analyze and determine the current state of regulatory regulation of public administration in the field of ensuring food safety in Ukraine, to investigate the regulation of the specified relations in individual EU member countries (Germany, Austria, Spain), to form a holistic view of the concept of the future law on food safety of Ukraine. Results. The first section of the article defines the current state of regulatory regulation of public relations regarding public administration in the field of food security of Ukraine. It has been established that such normative regulation is not effective, because there is no basic law of Ukraine, which could be the basis for the implementation of the corresponding function of public administration. The second part of the article is devoted to the research of regulatory regulation of public relations in relation to public administration in the field of ensuring food security in certain member states of the European Union, and in particular in: Germany, Austria and Spain. It has been clarified that the central goal of ensuring food safety in these countries and in the European Union as a whole is to ensure the safety of food products for consumers. In addition, it was found that at the level of national legislation in various EU countries there is a basic law or a set of laws that regulate public administration in this area. The third section of the article is devoted to the formation of the concept of the future law on food security of Ukraine. It was emphasized that this law should clearly define the competence and powers of public administration subjects in this area, establish a mechanism for guaranteeing the physical and economic availability of food products for everyone, and lay a legal basis for the interaction of public administration and civil society institutions in the field of ensuring food security of Ukraine. Conclusions. In the conclusions to the article, it is stated that the new law on food security of Ukraine must clearly define the system of permanent goals and objectives of the public administration in the field of ensuring food security of Ukraine, delimit the powers and competence of the subjects of the public administration within this functional direction of their activity, define the mechanism guaranteeing everyone physical and economic availability of food and essential goods, laying the legal basis for the interaction of public administration and civil society institutions in this area.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91235711","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.17721/2227-796x.2023.1.04
A. Paskar
Purpose. The scientific article is dedicated to the analysis of the peculiarities of the legislative regulation of the activity of administrative courts under martial law. The main goal of the research is to identify legislative changes introduced during the legal regime of martial law in Ukraine in the sphere of functioning of the judiciary and to analyze the content of the relevant regulatory framework to outline the specifics of the legislative regulation of the activity of administrative jurisdiction courts at this time. Accordingly, the article examines the features of legal regulation, analyzes the identified problems and shortcomings, and proposes prospective directions for the development of administrative procedural legislation to ensure the effective protection of the rights, freedoms, and interests of individuals. Methods. The conducted study of the peculiarities of legal regulation of the activity of administrative courts under martial law includes the following logical stages: formulation of the problem and the purpose of the study; literature search and analysis; selection of methods and research approaches; conducting scientific research; formulation of conclusions and recommendations. The chosen research methodology is determined by the purpose and tasks of the scientific article and includes the following methods and research approaches: the dogmatic method, which helped to analyze and systematize legal concepts, terms and principles; the method of system analysis, used to study the content of new legislative provisions, their interrelation and interaction; the analysis of judicial practice facilitated the examination of court practices on this issue and determination of the peculiarities of the court activities in emergencies, etc. The abovementioned, as well as other research methods and scientific approaches, were used separately or in combination, which contributed to obtaining answers to the research problem and achieving the research objective. Results and conclusions. The author concluded that under martial law the procedure of administrative justice is regulated by the current administrative procedural legislation, the updated norms of the Law of Ukraine «On the Judiciary and the Status of Judges», recommendations and explanations of the Supreme Court, the Council of Judges of Ukraine and the State Judicial Administration. Considering the specifics of the situation in a particular region, the courts determine their mode of operation taking into account the need to ensure access to justice and the safety of judges and other participants in the process. The results of the analysis of the peculiarities of the legislative regulation of the activity of courts under martial law, as reflected in the outlined prospective directions of its development, can be used as a basis for further scientific research and in developing specific recommendations for the reform of procedural legislation in general, and administrative procedural
{"title":"REGULATORY FRAMEWORK FOR THE FUNCTIONING OF ADMINISTRATIVE COURTS UNDER MARITAL LAW","authors":"A. Paskar","doi":"10.17721/2227-796x.2023.1.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2023.1.04","url":null,"abstract":"Purpose. The scientific article is dedicated to the analysis of the peculiarities of the legislative regulation of the activity of administrative courts under martial law. The main goal of the research is to identify legislative changes introduced during the legal regime of martial law in Ukraine in the sphere of functioning of the judiciary and to analyze the content of the relevant regulatory framework to outline the specifics of the legislative regulation of the activity of administrative jurisdiction courts at this time. Accordingly, the article examines the features of legal regulation, analyzes the identified problems and shortcomings, and proposes prospective directions for the development of administrative procedural legislation to ensure the effective protection of the rights, freedoms, and interests of individuals. Methods. The conducted study of the peculiarities of legal regulation of the activity of administrative courts under martial law includes the following logical stages: formulation of the problem and the purpose of the study; literature search and analysis; selection of methods and research approaches; conducting scientific research; formulation of conclusions and recommendations. The chosen research methodology is determined by the purpose and tasks of the scientific article and includes the following methods and research approaches: the dogmatic method, which helped to analyze and systematize legal concepts, terms and principles; the method of system analysis, used to study the content of new legislative provisions, their interrelation and interaction; the analysis of judicial practice facilitated the examination of court practices on this issue and determination of the peculiarities of the court activities in emergencies, etc. The abovementioned, as well as other research methods and scientific approaches, were used separately or in combination, which contributed to obtaining answers to the research problem and achieving the research objective. Results and conclusions. The author concluded that under martial law the procedure of administrative justice is regulated by the current administrative procedural legislation, the updated norms of the Law of Ukraine «On the Judiciary and the Status of Judges», recommendations and explanations of the Supreme Court, the Council of Judges of Ukraine and the State Judicial Administration. Considering the specifics of the situation in a particular region, the courts determine their mode of operation taking into account the need to ensure access to justice and the safety of judges and other participants in the process. The results of the analysis of the peculiarities of the legislative regulation of the activity of courts under martial law, as reflected in the outlined prospective directions of its development, can be used as a basis for further scientific research and in developing specific recommendations for the reform of procedural legislation in general, and administrative procedural ","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"155 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85811945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-01DOI: 10.17721/2227-796x.2023.1.05
O. Rudenko
Purpose. The purpose of the article is to determine the rules of instance jurisdiction, thelegal consequences of their violation in administrative proceedings, and to develop proposalsfor improving the current legislation of Ukraine in this area. Methods. The theoretical andmethodological basis of the research is general scientific and special methods. With the help of theuniversal dialectic method, the problems of determining the instance jurisdiction in administrativeproceedings in the procedural law and the consequences of its violation in their complexity andcontradictions were investigated, as well as ways of improving legal regulation in this area were determined. The use of the special-legal method and the method of systemic analysis, as wellas the logical-legal method, made it possible to investigate the content of individual norms ofadministrative procedural legislation related to the topic of the work, in their systemic connection.Results. It is noted that the legislator understands the type of administrative jurisdiction underthe instance jurisdiction, which determines the court authorized to consider and decide theadministrative case on the merits, from among the courts of different levels, to review the courtdecisions adopted in the administrative case in the appellate and cassation procedures. It hasbeen proven that under the current administrative procedural legislation of Ukraine, violationof the rules of instance jurisdiction entails a consequence in the form of annulment of the court'sdecision at the stages of appeal and cassation proceedings with referral of the case to the court offirst instance under the established jurisdiction for a new trial.It was concluded that in аrt. 22 of the Сode of administrative proceedings of Ukraine is notabout jurisdiction, but about jurisdiction. The need to exclude аrt. аrt. 23-24 of the Сode ofadministrative proceedings of Ukraine from paragraph 2 of chapter 2 of section I of the Сodeof administrative proceedings of Ukraine. The inexpediency of granting the Supreme Courtthe authority to consider some categories of administrative cases on the merits is indicated. Itis substantiated that the administrative cases provided for in рart 3 of аrt. 22 of the Сode ofadministrative proceedings of Ukraine, must be considered by district administrative courts ascourts of first instance.Conclusions. It is proposed to change the title of Chapter 2 of Section I to «AdministrativeJurisdiction and Jurisdiction of Administrative Matters», and the title of Paragraph 2 of Chapter2 of the Section to «Instance Jurisdiction», to provide for such a consequence of violation of therules specified in аrt. 22 of Сode of administrative proceedings, when considering a case in thecourt of first instance as a transfer of the case to another court by appropriateness, to establishthat the annulment in the appellate procedure of the court decisions that ended the considerationof the case is not allowed, if the party to the cas
{"title":"SOME ISSUES OF INSTANCE JURISDICTION OF ADMINISTRATIVE COURTS","authors":"O. Rudenko","doi":"10.17721/2227-796x.2023.1.05","DOIUrl":"https://doi.org/10.17721/2227-796x.2023.1.05","url":null,"abstract":"Purpose. The purpose of the article is to determine the rules of instance jurisdiction, thelegal consequences of their violation in administrative proceedings, and to develop proposalsfor improving the current legislation of Ukraine in this area. Methods. The theoretical andmethodological basis of the research is general scientific and special methods. With the help of theuniversal dialectic method, the problems of determining the instance jurisdiction in administrativeproceedings in the procedural law and the consequences of its violation in their complexity andcontradictions were investigated, as well as ways of improving legal regulation in this area were determined. The use of the special-legal method and the method of systemic analysis, as wellas the logical-legal method, made it possible to investigate the content of individual norms ofadministrative procedural legislation related to the topic of the work, in their systemic connection.Results. It is noted that the legislator understands the type of administrative jurisdiction underthe instance jurisdiction, which determines the court authorized to consider and decide theadministrative case on the merits, from among the courts of different levels, to review the courtdecisions adopted in the administrative case in the appellate and cassation procedures. It hasbeen proven that under the current administrative procedural legislation of Ukraine, violationof the rules of instance jurisdiction entails a consequence in the form of annulment of the court'sdecision at the stages of appeal and cassation proceedings with referral of the case to the court offirst instance under the established jurisdiction for a new trial.It was concluded that in аrt. 22 of the Сode of administrative proceedings of Ukraine is notabout jurisdiction, but about jurisdiction. The need to exclude аrt. аrt. 23-24 of the Сode ofadministrative proceedings of Ukraine from paragraph 2 of chapter 2 of section I of the Сodeof administrative proceedings of Ukraine. The inexpediency of granting the Supreme Courtthe authority to consider some categories of administrative cases on the merits is indicated. Itis substantiated that the administrative cases provided for in рart 3 of аrt. 22 of the Сode ofadministrative proceedings of Ukraine, must be considered by district administrative courts ascourts of first instance.Conclusions. It is proposed to change the title of Chapter 2 of Section I to «AdministrativeJurisdiction and Jurisdiction of Administrative Matters», and the title of Paragraph 2 of Chapter2 of the Section to «Instance Jurisdiction», to provide for such a consequence of violation of therules specified in аrt. 22 of Сode of administrative proceedings, when considering a case in thecourt of first instance as a transfer of the case to another court by appropriateness, to establishthat the annulment in the appellate procedure of the court decisions that ended the considerationof the case is not allowed, if the party to the cas","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"40 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80627902","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.17721/2227-796x.2022.3.07
L. Martynova
The article is devoted to the analysis of the institute of public services as an element of administrative law system. The author analyzes the doctrinal sources of the system of administrative law and puts forward the author’s judgments on the formation of the modern system of administrative law. The purpose of this article is to identify the main features of public relations arising in the field of public services and determine the place of the institute of public services in the system of administrative law. In order to achieve this goal, the author analyzes the existing studies devoted to the study of both the system of law in general and the system of administrative law in particular. The methodological basis of this article is a combination of general scientific methods of knowledge, the formal-legal method as well as the comparative legal method. Result. Analyzing the concept of the system of law and the system of legislation, the author concludes that in forming the content of these categories, first of all, it is necessary to establish the stage of development of the state and the types of legal understanding developed in legal science. The author notes that in a state governed by the rule of law, where the individual, his rights and freedoms are of supreme value, the widespread theory of legal positivism must give way to a theory of natural law that allows the distinctive features of the concepts in question to be established. The author has used doctrinal sources as well as law enforcement practice to identify the main characteristics of public services and the criteria for classifying a legal norm in the administrative law system. Having clarified the purpose and objectives of modern administrative law, the author justifies the idea that public service activities are a favourable form of public administration. The purpose of which is to assist individuals in exercising their rights, freedoms and satisfaction of legitimate interests. As a result of the research, it is noted that such relations arise primarily on the basis of general administrative law norms, which leads to the conclusion that the totality of such legal norms should be combined into a legal institute in the system of general administrative law. Conclusion. The author concludes that the modern development of law in general, and administrative law in particular, requires rethinking and allocation in the general administrative law system of the new institute, which may be called – Institute of public services.
{"title":"INSTITUTE OF PUBLIC SERVICES IN THE SYSTEM OF ADMINISTRATIVE LAW","authors":"L. Martynova","doi":"10.17721/2227-796x.2022.3.07","DOIUrl":"https://doi.org/10.17721/2227-796x.2022.3.07","url":null,"abstract":"The article is devoted to the analysis of the institute of public services as an element of administrative law system. The author analyzes the doctrinal sources of the system of administrative law and puts forward the author’s judgments on the formation of the modern system of administrative law. The purpose of this article is to identify the main features of public relations arising in the field of public services and determine the place of the institute of public services in the system of administrative law. In order to achieve this goal, the author analyzes the existing studies devoted to the study of both the system of law in general and the system of administrative law in particular. The methodological basis of this article is a combination of general scientific methods of knowledge, the formal-legal method as well as the comparative legal method. Result. Analyzing the concept of the system of law and the system of legislation, the author concludes that in forming the content of these categories, first of all, it is necessary to establish the stage of development of the state and the types of legal understanding developed in legal science. The author notes that in a state governed by the rule of law, where the individual, his rights and freedoms are of supreme value, the widespread theory of legal positivism must give way to a theory of natural law that allows the distinctive features of the concepts in question to be established. The author has used doctrinal sources as well as law enforcement practice to identify the main characteristics of public services and the criteria for classifying a legal norm in the administrative law system. Having clarified the purpose and objectives of modern administrative law, the author justifies the idea that public service activities are a favourable form of public administration. The purpose of which is to assist individuals in exercising their rights, freedoms and satisfaction of legitimate interests. As a result of the research, it is noted that such relations arise primarily on the basis of general administrative law norms, which leads to the conclusion that the totality of such legal norms should be combined into a legal institute in the system of general administrative law. Conclusion. The author concludes that the modern development of law in general, and administrative law in particular, requires rethinking and allocation in the general administrative law system of the new institute, which may be called – Institute of public services.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"289 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80039208","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.17721/2227-796x.2022.1.05
D. Chyzhov
The article is devoted to the study of the genesis of the formation and development of the human rights in the field of national security and to clarify the future legal model of national security in the term of human rights. The purpose of the article is to elucidate historical background and genesis of human rights in the field of national security. The research methodology is based on the general scientific dialectical method of scientific cognition. In addition, for the more comprehensive research of the genesis of human rights in the field of national security special scientific methods were used, in particular, historicallegal, formal-legalistic, formal-logical, contextual method of prediction. In article argues that the degree of protection of human and civil rights and freedoms from their violation is determined by the level of guarantee of each of these rights and freedoms. In accordance with principle of guarantee of the human rights and civil rights and freedoms, their strengthening is carried out both directly in the Constitution of Ukraine and in the current legislation. Position according to which state can choose to select a course that ensure national security in order to create a favorable condition for social development and provide the protection of the vital interest of the individuals, society and the state itself from internal or external threat can be called a policy of a national security. It is emphasized that the current stage of the development of the human rights in the national security began with adopting of the Association Agreement between Ukraine, on the one hand, and European union, the European Atomic Energy Community and their Member States, on the other. It is stated that among the fundamental human rights in the context of ensuring the right of national security to its subjectivity is a right to security, which has a feature of absolute right and at the same time is a subjective right in a specific legal relation in the field of national security. The right to security in the concept of human subjectivity has axiomatic significance as the initial formula of human-centered legal reality. It is concluded, that legal norms that constitute the core of the institution of national security law should be the norms of human rights in the field of national security, and the principle of ethnocentrism should be the basis of the national security law. In Ukraine the process of reforming human rights legislation in the aspect of national security is ongoing and needs further improvement. In particular, in terms of development and adoption of the Cyber Security Strategy of Ukraine, a longterm planning document, which determines the priorities of national interests of Ukraine in the field of cybersecurity.
{"title":"GENESIS OF THE FORMATION AND DEVELOPMENT OF HUMAN RIGHTS IN THE FIELD OF NATIONAL SECURITY","authors":"D. Chyzhov","doi":"10.17721/2227-796x.2022.1.05","DOIUrl":"https://doi.org/10.17721/2227-796x.2022.1.05","url":null,"abstract":"The article is devoted to the study of the genesis of the formation and development of the human rights in the field of national security and to clarify the future legal model of national security in the term of human rights. The purpose of the article is to elucidate historical background and genesis of human rights in the field of national security. The research methodology is based on the general scientific dialectical method of scientific cognition. In addition, for the more comprehensive research of the genesis of human rights in the field of national security special scientific methods were used, in particular, historicallegal, formal-legalistic, formal-logical, contextual method of prediction. In article argues that the degree of protection of human and civil rights and freedoms from their violation is determined by the level of guarantee of each of these rights and freedoms. In accordance with principle of guarantee of the human rights and civil rights and freedoms, their strengthening is carried out both directly in the Constitution of Ukraine and in the current legislation. Position according to which state can choose to select a course that ensure national security in order to create a favorable condition for social development and provide the protection of the vital interest of the individuals, society and the state itself from internal or external threat can be called a policy of a national security. It is emphasized that the current stage of the development of the human rights in the national security began with adopting of the Association Agreement between Ukraine, on the one hand, and European union, the European Atomic Energy Community and their Member States, on the other. It is stated that among the fundamental human rights in the context of ensuring the right of national security to its subjectivity is a right to security, which has a feature of absolute right and at the same time is a subjective right in a specific legal relation in the field of national security. The right to security in the concept of human subjectivity has axiomatic significance as the initial formula of human-centered legal reality. It is concluded, that legal norms that constitute the core of the institution of national security law should be the norms of human rights in the field of national security, and the principle of ethnocentrism should be the basis of the national security law. In Ukraine the process of reforming human rights legislation in the aspect of national security is ongoing and needs further improvement. In particular, in terms of development and adoption of the Cyber Security Strategy of Ukraine, a longterm planning document, which determines the priorities of national interests of Ukraine in the field of cybersecurity.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"59 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91308045","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.17721/2227-796x.2022.2.04
M. Kravchenko
Purpose. The purpose of the article is to determine the directions of improving the mechanism of taking into account the public interests of society in the formation of strategy and tactics of state economic policy of Ukraine. Methodology. The research methodology consists of general and special methods of scientific knowledge, in particular: comparative, system-structural, formal-logical methods: deduction, induction, analysis and synthesis. Their use allowed to analyze the researched issues in the unity of its legal form and social content, as well as to systematically and consistently approach the disclosure of the objectives of the study. Results. The first section of the article defines the conditions for taking into account the public interest in the formation of strategy and tactics of state economic policy of Ukraine. The conditions under which public interest is born have been studied. Specified requirement regarding the validity of the interest. Criteria for the erroneous interests of implementation, which are impossible in general or in the near future, are defined separately. Emphasis is placed on the variability of public interests, as well as the fact that public administration is the entity that accumulates public interests. The second section of the article is devoted to the degree of consideration of public interest in the formation of the National Economic Strategy for the period up to 2030. The third section of the article is devoted to determining the guidelines for the development of strategic planning of state economic policy of Ukraine. Conclusions. The conclusions to the article state that the state economic policy of Ukraine should be formed with due regard for the public interests of society in this area. They should become the central reference point in the formation of economic strategy and tactics. It is proposed to introduce in Ukraine a mechanism similar to the one existing in the economically developed EU member states of accumulation of such interests, which is based on the dialogue between civil society institutions and the state in the face of public administration.
{"title":"PUBLIC INTEREST AS A FACT NOT TAKEN INTO ACCOUNT IN THE FORMATION OF STRATEGY AND TACTICS OF THE STATE ECONOMIC POLICY OF UKRAINE","authors":"M. Kravchenko","doi":"10.17721/2227-796x.2022.2.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2022.2.04","url":null,"abstract":"Purpose. The purpose of the article is to determine the directions of improving the mechanism of taking into account the public interests of society in the formation of strategy and tactics of state economic policy of Ukraine. Methodology. The research methodology consists of general and special methods of scientific knowledge, in particular: comparative, system-structural, formal-logical methods: deduction, induction, analysis and synthesis. Their use allowed to analyze the researched issues in the unity of its legal form and social content, as well as to systematically and consistently approach the disclosure of the objectives of the study. Results. The first section of the article defines the conditions for taking into account the public interest in the formation of strategy and tactics of state economic policy of Ukraine. The conditions under which public interest is born have been studied. Specified requirement regarding the validity of the interest. Criteria for the erroneous interests of implementation, which are impossible in general or in the near future, are defined separately. Emphasis is placed on the variability of public interests, as well as the fact that public administration is the entity that accumulates public interests. The second section of the article is devoted to the degree of consideration of public interest in the formation of the National Economic Strategy for the period up to 2030. The third section of the article is devoted to determining the guidelines for the development of strategic planning of state economic policy of Ukraine. Conclusions. The conclusions to the article state that the state economic policy of Ukraine should be formed with due regard for the public interests of society in this area. They should become the central reference point in the formation of economic strategy and tactics. It is proposed to introduce in Ukraine a mechanism similar to the one existing in the economically developed EU member states of accumulation of such interests, which is based on the dialogue between civil society institutions and the state in the face of public administration.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"275 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73652160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.17721/2227-796x.2022.4.08
A. Antonenko
Purpose. The purpose of the article is to determine the essence of legally significant actions as atool of public administration through the theoretical and legal characterization of their featuresand the analysis of examples by which certain actions can or, on the contrary, can’t be attributedto them.Methods. The research methodology consists of general and special methods of scientificknowledge, among which the main ones are comparative legal (for comparing scientific views andlegal provisions), analysis and synthesis, deduction and induction (when studying the signs of thetools of public administration and attributing to their specific types of individual actions committedby subjects of public administration), systemic-structural (the use of which is conditioned by theneed for a systematic and consistent study of the essence of legally significant actions and thepossibility of attributing certain tools of public administration to them), formal-logical (duringresearch of the content of features of administrative acts enshrined in law and the consistency ofscientific points of view with them) etc.Results. The first section of the article examines the main features of legally significant actions,established in law and proposed in scientific sources. The impracticality of attributing to themactions that do not lead to legal consequences is substantiated. An example of legally significantactions committed in the form of inactivity of public administration subjects is given.In the second section of the article, examples of the use of tools-actions of subjects of publicadministration are analyzed for a visual demonstration of the possibility of classifying certainactions of public administration as legally significant. In this context, the actions of the publicadministration on the implementation of the initiative on the purchase of private property objectsfor public needs, the voting carried out at the meetings of public administration subjects, includingthe decision on the purchase of private property objects for public needs, are considered.Conclusions. In the conclusions, the concept of legally significant actions is proposed as a formof administrative acts enshrined in the Law of Ukraine “On administrative procedure”, theexpression of which is the actions or inactions of subjects of public administration, providedat the regulatory level, which are characterized by all the features of this category of tools ofpublic administration without exception. It is emphasized that one of their features is that in certain cases, in order to achieve the result of the performance of the powers entrusted to thepublic administration, they must be applied in combination with administrative acts in the formof decisions. The most expressive examples of legally significant actions are listed. Proposals forimproving the legal regulation of administrative acts have been formulated.
{"title":"LEGALLY SIGNIFICANT ACTIONS AS A TOOL OF PUBLIC ADMINISTRATION: THEORETICAL AND LEGAL CHARACTERISTICS AND EXAMPLES","authors":"A. Antonenko","doi":"10.17721/2227-796x.2022.4.08","DOIUrl":"https://doi.org/10.17721/2227-796x.2022.4.08","url":null,"abstract":"Purpose. The purpose of the article is to determine the essence of legally significant actions as atool of public administration through the theoretical and legal characterization of their featuresand the analysis of examples by which certain actions can or, on the contrary, can’t be attributedto them.Methods. The research methodology consists of general and special methods of scientificknowledge, among which the main ones are comparative legal (for comparing scientific views andlegal provisions), analysis and synthesis, deduction and induction (when studying the signs of thetools of public administration and attributing to their specific types of individual actions committedby subjects of public administration), systemic-structural (the use of which is conditioned by theneed for a systematic and consistent study of the essence of legally significant actions and thepossibility of attributing certain tools of public administration to them), formal-logical (duringresearch of the content of features of administrative acts enshrined in law and the consistency ofscientific points of view with them) etc.Results. The first section of the article examines the main features of legally significant actions,established in law and proposed in scientific sources. The impracticality of attributing to themactions that do not lead to legal consequences is substantiated. An example of legally significantactions committed in the form of inactivity of public administration subjects is given.In the second section of the article, examples of the use of tools-actions of subjects of publicadministration are analyzed for a visual demonstration of the possibility of classifying certainactions of public administration as legally significant. In this context, the actions of the publicadministration on the implementation of the initiative on the purchase of private property objectsfor public needs, the voting carried out at the meetings of public administration subjects, includingthe decision on the purchase of private property objects for public needs, are considered.Conclusions. In the conclusions, the concept of legally significant actions is proposed as a formof administrative acts enshrined in the Law of Ukraine “On administrative procedure”, theexpression of which is the actions or inactions of subjects of public administration, providedat the regulatory level, which are characterized by all the features of this category of tools ofpublic administration without exception. It is emphasized that one of their features is that in certain cases, in order to achieve the result of the performance of the powers entrusted to thepublic administration, they must be applied in combination with administrative acts in the formof decisions. The most expressive examples of legally significant actions are listed. Proposals forimproving the legal regulation of administrative acts have been formulated.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90133212","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-01DOI: 10.17721/2227-796x.2022.3.04
Oksana Hinda
Goal. To disclose the content of the prerequisites and conditions for opening of proceedings at the application of the tax authorities and to determine their lists. Methods. Given the specifics of the research topic and its purpose, the research is based on the dialectical method of cognition, according to which the problems to be solved are considered in the process of development of their existence and study, implementation, unity of their social content and legal form. There were also used other methods: analysis (to study the concepts of “prerequisites” and “conditions”, to determine the circumstances that can be denoted by these terms), comparative legal method (in characterizing the prerequisites and conditions of litigation and non-litigation administrative proceedings and determining their lists), formally-legal method was used to ascertain and analyze certain legislative provisions and norms. Results. The article analyzes the scientific approaches to determining the nature of the prerequisites and conditions for opening of administrative proceedings. It was found that in the scientific literature there are a significant number of views on the nature and list of prerequisites and conditions for opening proceedings in administrative cases that are often opposite. It is concluded that the prerequisites for opening of litigation and non-litigation proceedings are identical. The author’s approach to the list of conditions for opening administrative proceedings at the application of tax authorities is proposed. Conclusions. Prerequisites and conditions for opening of proceedings at the application of tax authorities are usually considered within another, more general subject of research, including research on the initiation of proceedings in administrative cases in general, the characteristics of the right to appeal to an administrative court; etc. From the etymological point of view, the concepts of “prerequisites” and “conditions” are filled with different meanings, and therefore should be used to denote different legal phenomena. In the scientific literature there is a significant pluralism of opinions on the understanding of the prerequisites and conditions for the opening of legal proceedings and their lists. The lack of prerequisites and conditions for initiating proceedings in an administrative case has different legal meanings, the first – the refusal to open the proceedings, the second: 1) leaving the claim without movement; 2) return of the claim; 3) leaving the claim without consideration – after the opening of proceedings. The prerequisites for opening of litigation and non-litigation proceedings are common. The conditions for opening of proceedings in the analyzed cases are defined in Art. 283 of CAP of Ukraine and relate to the presence of the relevant subject of appeal, compliance with a number of procedural requirements and the absence of a dispute over the right.
{"title":"PREREQUISITES AND CONDITIONS FOR THE OPENING OF PROCEEDINGS AT THE APPLICATION OF THE TAX AUTHORITIES","authors":"Oksana Hinda","doi":"10.17721/2227-796x.2022.3.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2022.3.04","url":null,"abstract":"Goal. To disclose the content of the prerequisites and conditions for opening of proceedings at the application of the tax authorities and to determine their lists. Methods. Given the specifics of the research topic and its purpose, the research is based on the dialectical method of cognition, according to which the problems to be solved are considered in the process of development of their existence and study, implementation, unity of their social content and legal form. There were also used other methods: analysis (to study the concepts of “prerequisites” and “conditions”, to determine the circumstances that can be denoted by these terms), comparative legal method (in characterizing the prerequisites and conditions of litigation and non-litigation administrative proceedings and determining their lists), formally-legal method was used to ascertain and analyze certain legislative provisions and norms. Results. The article analyzes the scientific approaches to determining the nature of the prerequisites and conditions for opening of administrative proceedings. It was found that in the scientific literature there are a significant number of views on the nature and list of prerequisites and conditions for opening proceedings in administrative cases that are often opposite. It is concluded that the prerequisites for opening of litigation and non-litigation proceedings are identical. The author’s approach to the list of conditions for opening administrative proceedings at the application of tax authorities is proposed. Conclusions. Prerequisites and conditions for opening of proceedings at the application of tax authorities are usually considered within another, more general subject of research, including research on the initiation of proceedings in administrative cases in general, the characteristics of the right to appeal to an administrative court; etc. From the etymological point of view, the concepts of “prerequisites” and “conditions” are filled with different meanings, and therefore should be used to denote different legal phenomena. In the scientific literature there is a significant pluralism of opinions on the understanding of the prerequisites and conditions for the opening of legal proceedings and their lists. The lack of prerequisites and conditions for initiating proceedings in an administrative case has different legal meanings, the first – the refusal to open the proceedings, the second: 1) leaving the claim without movement; 2) return of the claim; 3) leaving the claim without consideration – after the opening of proceedings. The prerequisites for opening of litigation and non-litigation proceedings are common. The conditions for opening of proceedings in the analyzed cases are defined in Art. 283 of CAP of Ukraine and relate to the presence of the relevant subject of appeal, compliance with a number of procedural requirements and the absence of a dispute over the right.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"7 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84140812","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：