Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.4.03
O. Rudenko
Purpose. The purpose of the article is to determine the procedural consequences of noncompliancewith the rules of territorial jurisdiction (jurisdiction) in administrative proceedingsand to make recommendations aimed at improving legal regulation in this area. Methods. Generaland special methods are the theoretical and methodological basis of the study. With the help of theuniversal dialectical method the problems of determining in the procedural law the consequencesof violation of the rules of jurisdiction in administrative proceedings in their complexity andcontradictions are studied, as well as ways to improve legal regulation in this area. The use ofthe special-legal method and the method of system analysis, as well as the logical-legal method allowed to study the content of certain norms of administrative procedural legislation related tothe topic of work in their system connection.Results. It is noted that the territorial jurisdiction of administrative cases determines thejurisdiction between administrative courts of one level depending on the territory to which theirjurisdiction extends. It is proved that under the current administrative procedural legislation ofUkraine violation of the rules of territorial jurisdiction entails two consequences: 1) transfer ofthe case from one court to another in the established jurisdiction; 2) cancellation of the courtdecision at the stages of appellate and cassation proceedings with the referral of the case to thecourt of first instance in the established jurisdiction for a new trial.It is concluded that the existence of grounds for transferring the case to jurisdiction prevents theopening of proceedings. The correctness of the legislator’s refusal from such a consequence ofviolation of the rules of jurisdiction as the return of the claim is argued. It is pointed out that it isinexpedient to set deadlines for applying to the court with a request to transfer the case under theestablished jurisdiction. It is substantiated that consideration by the court of first instance of acase in violation of the rules of jurisdiction cannot be an independent ground for revoking a courtdecision on appeal and in cassation.Conclusions. It is proposed to provide at the legislative level that one of the conditions forinitiating proceedings in an administrative case is the absence of grounds for its transfer toanother court with established jurisdiction, the right of the parties to appeal the decision to refuseto transfer the case under separate jurisdiction. to refer the case under the rules of territorialjurisdiction to another court in case of recognition of the actions of the parties to the case,committed to change jurisdiction, abuse of procedural rights.
{"title":"CONSEQUENCES OF VIOLATION OF THE RULES OF TERRITORIAL JURISDICTION IN ADMINISTRATIVE PROCEEDINGS","authors":"O. Rudenko","doi":"10.17721/2227-796x.2021.4.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.4.03","url":null,"abstract":"Purpose. The purpose of the article is to determine the procedural consequences of noncompliancewith the rules of territorial jurisdiction (jurisdiction) in administrative proceedingsand to make recommendations aimed at improving legal regulation in this area. Methods. Generaland special methods are the theoretical and methodological basis of the study. With the help of theuniversal dialectical method the problems of determining in the procedural law the consequencesof violation of the rules of jurisdiction in administrative proceedings in their complexity andcontradictions are studied, as well as ways to improve legal regulation in this area. The use ofthe special-legal method and the method of system analysis, as well as the logical-legal method allowed to study the content of certain norms of administrative procedural legislation related tothe topic of work in their system connection.Results. It is noted that the territorial jurisdiction of administrative cases determines thejurisdiction between administrative courts of one level depending on the territory to which theirjurisdiction extends. It is proved that under the current administrative procedural legislation ofUkraine violation of the rules of territorial jurisdiction entails two consequences: 1) transfer ofthe case from one court to another in the established jurisdiction; 2) cancellation of the courtdecision at the stages of appellate and cassation proceedings with the referral of the case to thecourt of first instance in the established jurisdiction for a new trial.It is concluded that the existence of grounds for transferring the case to jurisdiction prevents theopening of proceedings. The correctness of the legislator’s refusal from such a consequence ofviolation of the rules of jurisdiction as the return of the claim is argued. It is pointed out that it isinexpedient to set deadlines for applying to the court with a request to transfer the case under theestablished jurisdiction. It is substantiated that consideration by the court of first instance of acase in violation of the rules of jurisdiction cannot be an independent ground for revoking a courtdecision on appeal and in cassation.Conclusions. It is proposed to provide at the legislative level that one of the conditions forinitiating proceedings in an administrative case is the absence of grounds for its transfer toanother court with established jurisdiction, the right of the parties to appeal the decision to refuseto transfer the case under separate jurisdiction. to refer the case under the rules of territorialjurisdiction to another court in case of recognition of the actions of the parties to the case,committed to change jurisdiction, abuse of procedural rights.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89770326","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.3.03
T. Anishchenko
The author of the article has studied specific features of normative and legal regulation of the issues of competitive interests in Ukraine. It has been noted that there are still problematic issues of practical application of the norms of current legislation in regard to drawing up protocols by authorized entities and in regard to court hearings in the relevant category at the present stage of development of anti-corruption legislation. The author has separately emphasized on specific features of resolving competitive interest in foreign countries. There is an example of the fact that the most common issues regulated by EU law are the obligation to maintain impartiality and the ban on combining positions, while the issues of gifts, rewards and restrictions on choosing activities after leaving office are almost not raised. Special attention has been paid to studying the Generalizations of Judicial Practice in Cases on Administrative Offenses Related to Corruption; the Methodical Recommendations on the Application of Certain Provisions of the Law of Ukraine “On Preventing Corruption” regarding the prevention and settlement of competitive interests, the compliance with restrictions on the prevention of corruption developed by the National Agency for the Prevention of Corruption in 2021 has become a special achievement of recent years, aimed at forming unified approach to the compliance with the rules for the prevention and settlement of competitive interests, restrictions on the prevention of corruption as an integral part of preventing the commission of corruption and corruption-related offenses. The report on the implementation of anti-corruption reforms in Eastern Europe and Central Asia countries, published by the Organization for Economic Cooperation and Development on deepening cooperation, has been separately highlighted. This report summarizes the implementation of the Istanbul Anti-Corruption Action Plan and notes that the quality of mechanisms for monitoring the implementation of anti-corruption policies remains low in almost all of the indicated countries; in most cases it is based not on objective indicators and criteria, but on reports from executing agencies.
{"title":"CONFLICT OF INTEREST: FROM THE LAW TO THE COURT DECISION","authors":"T. Anishchenko","doi":"10.17721/2227-796x.2021.3.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.3.03","url":null,"abstract":"The author of the article has studied specific features of normative and legal regulation of the issues of competitive interests in Ukraine. It has been noted that there are still problematic issues of practical application of the norms of current legislation in regard to drawing up protocols by authorized entities and in regard to court hearings in the relevant category at the present stage of development of anti-corruption legislation. The author has separately emphasized on specific features of resolving competitive interest in foreign countries. There is an example of the fact that the most common issues regulated by EU law are the obligation to maintain impartiality and the ban on combining positions, while the issues of gifts, rewards and restrictions on choosing activities after leaving office are almost not raised. Special attention has been paid to studying the Generalizations of Judicial Practice in Cases on Administrative Offenses Related to Corruption; the Methodical Recommendations on the Application of Certain Provisions of the Law of Ukraine “On Preventing Corruption” regarding the prevention and settlement of competitive interests, the compliance with restrictions on the prevention of corruption developed by the National Agency for the Prevention of Corruption in 2021 has become a special achievement of recent years, aimed at forming unified approach to the compliance with the rules for the prevention and settlement of competitive interests, restrictions on the prevention of corruption as an integral part of preventing the commission of corruption and corruption-related offenses. The report on the implementation of anti-corruption reforms in Eastern Europe and Central Asia countries, published by the Organization for Economic Cooperation and Development on deepening cooperation, has been separately highlighted. This report summarizes the implementation of the Istanbul Anti-Corruption Action Plan and notes that the quality of mechanisms for monitoring the implementation of anti-corruption policies remains low in almost all of the indicated countries; in most cases it is based not on objective indicators and criteria, but on reports from executing agencies.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"51 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89806616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.2.02
Roman Bramontov
The purpose of this article is to comprehend the historical stages for the formation and developmentof police law of the Russian Empire. Achievement of the set purpose involves studying the sourcesof police law, analyzing their content and significance for further development of the researchedbranch. The methodological basis of the work is general scientific methods of cognition, as wellas retrospective and comparative legal analysis. The article consists of three independent parts,where each is focused on a separate stage in the development of police law. The basis of theperiodization suggested by the author is the volume and quality of standards, specifications andguidelines that regulate policing.The first part of the article is focused on the stage of police law formation, which began in 1718with the creation of the Chief Police Executive Office and the approval of the position of the Chiefof Police. Peter the Great published “Guidelines for the Chief of Police in the St. Petersburg” inthe same year, which became the first source of police law in its classical sense. The content ofthe Guidelines was specified in the Decrees of the Senate and the Chief of Police. Instruction tothe Moscow Head Police Master Grekov was issued in 1721 by the analogy with the Guidelines,which differed from the Guidelines by the more detailed normative regulation of public relationsin the researched field.The conducted analysis of the sources of police law makes it possible to single out a number of keyfeatures of the normative regulation of policing at the stage of its formation, which should includemany functions that are not characteristic for the police in the classical sense, broad discretionarypowers with the absence of clear mechanisms of departmental and public control, involvement ofthe population to solve the problems facing by the police. The stage of formation of police law is also characterized by unsystematic presentation of legal material and the absence of the actualRussian doctrine of police law, which was not formed at that stage.Unsystematic specialized legislation, excessive multifunctionality of the police, the lack of thedoctrine of police law significantly reduced the effectiveness of policing. The mechanism of legalregulation, created at the stage of the formation of police law, needed serious reforms. In thisregard, the search for the ways to further improvement of the legal system of the Russian Empirein general and legal regulation of policing, in particular began in the second half of the XVIIIcentury on the initiative of Catherine II. The Charter of the Deanery or Police was approved in1782, which brought the legislative regulation of policing to a qualitatively new, codified level.The stage of the formation of police law with its approval in tsarist Russia should be consideredcompleted.
{"title":"FORMATION AND DEVELOPMENT OF POLICE LAW OF THE RUSSIAN EMPIRE (PART ONE)","authors":"Roman Bramontov","doi":"10.17721/2227-796x.2021.2.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.2.02","url":null,"abstract":"The purpose of this article is to comprehend the historical stages for the formation and developmentof police law of the Russian Empire. Achievement of the set purpose involves studying the sourcesof police law, analyzing their content and significance for further development of the researchedbranch. The methodological basis of the work is general scientific methods of cognition, as wellas retrospective and comparative legal analysis. The article consists of three independent parts,where each is focused on a separate stage in the development of police law. The basis of theperiodization suggested by the author is the volume and quality of standards, specifications andguidelines that regulate policing.The first part of the article is focused on the stage of police law formation, which began in 1718with the creation of the Chief Police Executive Office and the approval of the position of the Chiefof Police. Peter the Great published “Guidelines for the Chief of Police in the St. Petersburg” inthe same year, which became the first source of police law in its classical sense. The content ofthe Guidelines was specified in the Decrees of the Senate and the Chief of Police. Instruction tothe Moscow Head Police Master Grekov was issued in 1721 by the analogy with the Guidelines,which differed from the Guidelines by the more detailed normative regulation of public relationsin the researched field.The conducted analysis of the sources of police law makes it possible to single out a number of keyfeatures of the normative regulation of policing at the stage of its formation, which should includemany functions that are not characteristic for the police in the classical sense, broad discretionarypowers with the absence of clear mechanisms of departmental and public control, involvement ofthe population to solve the problems facing by the police. The stage of formation of police law is also characterized by unsystematic presentation of legal material and the absence of the actualRussian doctrine of police law, which was not formed at that stage.Unsystematic specialized legislation, excessive multifunctionality of the police, the lack of thedoctrine of police law significantly reduced the effectiveness of policing. The mechanism of legalregulation, created at the stage of the formation of police law, needed serious reforms. In thisregard, the search for the ways to further improvement of the legal system of the Russian Empirein general and legal regulation of policing, in particular began in the second half of the XVIIIcentury on the initiative of Catherine II. The Charter of the Deanery or Police was approved in1782, which brought the legislative regulation of policing to a qualitatively new, codified level.The stage of the formation of police law with its approval in tsarist Russia should be consideredcompleted.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"35 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82181903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.2.03
M. Veselov, O. Dubina
The purpose of the article is to theoretically determine and clarify the state of legal support of the principles (principles) of protection of the rights of minors in administrative-tort relations. The research methodology was formed by a set of general scientific and special methods of cognition. In particular, the dialectical method of cognition was used by the authors in identifying the basic principles of legal protection of the rights of children (minors) in the implementation of administrative-tort relations in the context of continuous development and improvement of international and national law. Through a combination of methods of comparative analysis and synthesis, it was proved that the characteristics of juvenile participation in administrative tort proceedings together determine the principles of administrative proceedings and internationally established standards of child-friendly justice. The comparative law method was used in comparing the principles of protection of children’s rights of international and national (administrative) law. The results of the study are outlined in the list of basic principles of proceedings in cases of administrative offenses, as well as guidelines for the administration of child-friendly justice. The content of such international principles as: ensuring the best interests of the child; access of the juvenile to the court and obtaining the necessary information in a form and manner accessible to the child; participation of a minor in administrative-tort proceedings (principle of active participation, including the presumption of the child’s ability to be a full participant in these legal relations and mandatory participation of a minor in the administrative case against him); free expression of the child’s views and consideration of his opinion (the principle of being heard); the use of detention and forced detention of children only as an exceptional measure and for the shortest possible time. The expediency of introducing the principle of presumption of vulnerability of administrative and procedural rights of the child into administrative-tort relations is substantiated. The following conclusions are formulated in the article. It is established that the principles of protection of the rights of minors in administrative-tort relations are theoretically substantiated and enshrined in international and national administrative acts basic principles, guiding ideas that reflect the general nature and specifics of proceedings on administrative offenses involving minors. It was found that the basis for the protection of the rights of minors in administrative-tort relations is a set of interrelated principles of administrative-tort proceedings and international legal standards (rules) for the administration of child-friendly justice. It is emphasized that in both the first and the second case the list of these principles cannot be considered exhaustive, and the implementation of many of them has many common
{"title":"PRINCIPLES OF PROTECTION OF THE RIGHTS OF MINOR PARTICIPANTS IN ADMINISTRATIVE-TORT RELATIONS","authors":"M. Veselov, O. Dubina","doi":"10.17721/2227-796x.2021.2.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.2.03","url":null,"abstract":"The purpose of the article is to theoretically determine and clarify the state of legal support of the principles (principles) of protection of the rights of minors in administrative-tort relations. The research methodology was formed by a set of general scientific and special methods of cognition. In particular, the dialectical method of cognition was used by the authors in identifying the basic principles of legal protection of the rights of children (minors) in the implementation of administrative-tort relations in the context of continuous development and improvement of international and national law. Through a combination of methods of comparative analysis and synthesis, it was proved that the characteristics of juvenile participation in administrative tort proceedings together determine the principles of administrative proceedings and internationally established standards of child-friendly justice. The comparative law method was used in comparing the principles of protection of children’s rights of international and national (administrative) law. The results of the study are outlined in the list of basic principles of proceedings in cases of administrative offenses, as well as guidelines for the administration of child-friendly justice. The content of such international principles as: ensuring the best interests of the child; access of the juvenile to the court and obtaining the necessary information in a form and manner accessible to the child; participation of a minor in administrative-tort proceedings (principle of active participation, including the presumption of the child’s ability to be a full participant in these legal relations and mandatory participation of a minor in the administrative case against him); free expression of the child’s views and consideration of his opinion (the principle of being heard); the use of detention and forced detention of children only as an exceptional measure and for the shortest possible time. The expediency of introducing the principle of presumption of vulnerability of administrative and procedural rights of the child into administrative-tort relations is substantiated. The following conclusions are formulated in the article. It is established that the principles of protection of the rights of minors in administrative-tort relations are theoretically substantiated and enshrined in international and national administrative acts basic principles, guiding ideas that reflect the general nature and specifics of proceedings on administrative offenses involving minors. It was found that the basis for the protection of the rights of minors in administrative-tort relations is a set of interrelated principles of administrative-tort proceedings and international legal standards (rules) for the administration of child-friendly justice. It is emphasized that in both the first and the second case the list of these principles cannot be considered exhaustive, and the implementation of many of them has many common ","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"4 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89943183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.3.01
Roman Kornuta
Purpose. Article looks for the terminological unification provided with the legal notion of the public service and methodological opportunities opened for the development of the quality of its personnel Methods. The article deals with the rarely used but deeply rooted in the continental systems notion of public service in its sense as an element of the legal technique by the use of a set of philosophical, general and special research methods. This notion has a history of development, which is outlined with regard to Ukraine and in some general features, coming down to the most damaging and in several instances still halting further development rules and institutions. The text deals with constitutional provisions and perspectives of public service. Some damaging discrepancies are revealed in this regard and proposals as to the improvement are provided. Results. As some terminology is inherited from previous legal regimes, it makes the case for urgent overhaul. Further the text summarizes in many points different kinds of jobs and professions, united under the task of responding to public needs and satisfying public demands, as it is expected from a modern state. Constitution has provided some guidance, but set divergent and partially contradicting goals. Article states, that the public service has to be armed with technics, eligibilities and other means reassuring the modern state acts adequately and timely in their settling. Current legal definition of public service appeared in the Ukrainian law with the Codes of administrative judiciary in 2005. With the time gone it wasn’t especially intensively used, though the personnel of the public agencies constantly needs attention in many respect. Providing some examples of solutions to the problems of public service the article states that terminological unification ahead of competitiveness and improvements in the approaches to the qualifications of public servants will provide for the needed move in the direction of rule of law. Conclusions. As a result of the analysis, the author aims to form the awareness that the legal notion of the public service opens the opportunity to value internal relations between the seemingly far settled different jobs in public service and facilitate new opportunity to higher qualification of the public service personnel.
{"title":"PUBLIC SERVICE AND ITS LEGAL DEFINITION","authors":"Roman Kornuta","doi":"10.17721/2227-796x.2021.3.01","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.3.01","url":null,"abstract":"Purpose. Article looks for the terminological unification provided with the legal notion of the public service and methodological opportunities opened for the development of the quality of its personnel Methods. The article deals with the rarely used but deeply rooted in the continental systems notion of public service in its sense as an element of the legal technique by the use of a set of philosophical, general and special research methods. This notion has a history of development, which is outlined with regard to Ukraine and in some general features, coming down to the most damaging and in several instances still halting further development rules and institutions. The text deals with constitutional provisions and perspectives of public service. Some damaging discrepancies are revealed in this regard and proposals as to the improvement are provided. Results. As some terminology is inherited from previous legal regimes, it makes the case for urgent overhaul. Further the text summarizes in many points different kinds of jobs and professions, united under the task of responding to public needs and satisfying public demands, as it is expected from a modern state. Constitution has provided some guidance, but set divergent and partially contradicting goals. Article states, that the public service has to be armed with technics, eligibilities and other means reassuring the modern state acts adequately and timely in their settling. Current legal definition of public service appeared in the Ukrainian law with the Codes of administrative judiciary in 2005. With the time gone it wasn’t especially intensively used, though the personnel of the public agencies constantly needs attention in many respect. Providing some examples of solutions to the problems of public service the article states that terminological unification ahead of competitiveness and improvements in the approaches to the qualifications of public servants will provide for the needed move in the direction of rule of law. Conclusions. As a result of the analysis, the author aims to form the awareness that the legal notion of the public service opens the opportunity to value internal relations between the seemingly far settled different jobs in public service and facilitate new opportunity to higher qualification of the public service personnel.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"257 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78392379","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.3.02
H.Y. Puzanova
This article is devoted to defining the essence of the mechanism of administrative and legal support for the formation of state foreign investment policy. In this case, the stage of formation of public policy should be considered separately from the stage of implementation, as it has its own characteristics. The purpose of the study is to determine the essence of the mechanism of administrative and legal support for the formation of state policy of foreign investment, its elements and provide an author’s definition of this concept. Research methodology. To achieve this goal, general scientific research methods (dialectical, analysis, synthesis and structural-functional), as well as special methods (logical, legal, comparative law) were used. In the course of the research, objective and subjective factors of influence on the formation of the mechanism of ensuring the state policy of foreign investment were identified. The objective factors influencing the formation of state policy of foreign investment include: the economic nature of investment relations; geographical and cultural features of Ukraine. Subjective factors included: globalization and the activities of international financial institutions; activities of political forces; activity of civil society institutions. Subjective factors, depending on the field of formation were divided into external (the first of these) and internal (the last two). It is established that the state policy of foreign investment has such special features as: at the same time should be based on current legislation and take into account the laws of economics; aims to establish, ensure and maintain a favorable investment climate, in particular, and the growth of the national economy in general; take into account international law, public law and private law components of investment relations. Conclusions. Studying the existing views of scholars on the nature and elements of the mechanism of state foreign investment policy in various spheres of state functioning, the following components of the mechanism of administrative and legal support of state foreign investment policy, which can be combined into blocks: subjective, practical, methodological, functional.
{"title":"MECHANISM OF ADMINISTRATIVE AND LEGAL SUPPORT FOR FORMATION OF STATE POLICY OF FOREIGN INVESTMENT","authors":"H.Y. Puzanova","doi":"10.17721/2227-796x.2021.3.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.3.02","url":null,"abstract":"This article is devoted to defining the essence of the mechanism of administrative and legal support for the formation of state foreign investment policy. In this case, the stage of formation of public policy should be considered separately from the stage of implementation, as it has its own characteristics. The purpose of the study is to determine the essence of the mechanism of administrative and legal support for the formation of state policy of foreign investment, its elements and provide an author’s definition of this concept. Research methodology. To achieve this goal, general scientific research methods (dialectical, analysis, synthesis and structural-functional), as well as special methods (logical, legal, comparative law) were used. In the course of the research, objective and subjective factors of influence on the formation of the mechanism of ensuring the state policy of foreign investment were identified. The objective factors influencing the formation of state policy of foreign investment include: the economic nature of investment relations; geographical and cultural features of Ukraine. Subjective factors included: globalization and the activities of international financial institutions; activities of political forces; activity of civil society institutions. Subjective factors, depending on the field of formation were divided into external (the first of these) and internal (the last two). It is established that the state policy of foreign investment has such special features as: at the same time should be based on current legislation and take into account the laws of economics; aims to establish, ensure and maintain a favorable investment climate, in particular, and the growth of the national economy in general; take into account international law, public law and private law components of investment relations. Conclusions. Studying the existing views of scholars on the nature and elements of the mechanism of state foreign investment policy in various spheres of state functioning, the following components of the mechanism of administrative and legal support of state foreign investment policy, which can be combined into blocks: subjective, practical, methodological, functional.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"92 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75457675","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.1.02
Yu. D. Kunev, O. Myronets
The purpose of the paper is to analyze and disclose the issues of theoretical and practical plan that prevent the solution of administrative law legal applying issues, which contain or are connected with the definitions of “substantive and processual law” and “norms substantive and processual law” and the development of theoretical proposals needed to solve the problems of the practical plan. Research methods. The paper uses a comprehensive approach to creating a theoretical picture of the object and the application of the methodological scheme of “double knowledge” about the object as such and the knowledge that describes and depicts it; method of comparative legal and doctrinal knowledge of administrative legislation; method of generalization and modeling of new theoretical knowledge of administrative law. Results. Issues for the further development of theory and practice of administrative law are identified and a theoretical approach for their solution is suggested. It is established that the subject of administrative law requires modeling and legal regulation of an administrative activity according to the scheme of legal certainty by the norms of substantive and formal law. Substantive administrative law consists of rules that describe materialized objects, the title of which defines the basic institutions of administrative law. Formal administrative law consists of norms that determine the process of substantive law formalization according to the procedures of administrative activity, which consist of substantive and processual norms of formal law. The main substantive rules of formal law include public conditions and formalities, as legal means that determine the interaction of subjects in administrative activity and the delimitation of the spheres of norms effect for private and public law. Conclusions. It gives reasons for the position that the practical implementation of approaches based on the theoretical position of the division into substantive and formal administrative law, means the formation of an administrative procedure as a single standard for the whole administrative activity, including judicial.
{"title":"ADMINISTRATIVE LAW: MATERIAL, PROCESSUAL AND FORMAL COMPONENTS","authors":"Yu. D. Kunev, O. Myronets","doi":"10.17721/2227-796x.2021.1.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.1.02","url":null,"abstract":"The purpose of the paper is to analyze and disclose the issues of theoretical and practical plan that prevent the solution of administrative law legal applying issues, which contain or are connected with the definitions of “substantive and processual law” and “norms substantive and processual law” and the development of theoretical proposals needed to solve the problems of the practical plan. Research methods. The paper uses a comprehensive approach to creating a theoretical picture of the object and the application of the methodological scheme of “double knowledge” about the object as such and the knowledge that describes and depicts it; method of comparative legal and doctrinal knowledge of administrative legislation; method of generalization and modeling of new theoretical knowledge of administrative law. Results. Issues for the further development of theory and practice of administrative law are identified and a theoretical approach for their solution is suggested. It is established that the subject of administrative law requires modeling and legal regulation of an administrative activity according to the scheme of legal certainty by the norms of substantive and formal law. Substantive administrative law consists of rules that describe materialized objects, the title of which defines the basic institutions of administrative law. Formal administrative law consists of norms that determine the process of substantive law formalization according to the procedures of administrative activity, which consist of substantive and processual norms of formal law. The main substantive rules of formal law include public conditions and formalities, as legal means that determine the interaction of subjects in administrative activity and the delimitation of the spheres of norms effect for private and public law. Conclusions. It gives reasons for the position that the practical implementation of approaches based on the theoretical position of the division into substantive and formal administrative law, means the formation of an administrative procedure as a single standard for the whole administrative activity, including judicial.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"213 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78494101","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.2.01
Yevhenii Doiar
PurposeThe purpose of the article is to provide specific and illustrative examples of concretization of theprinciples of administrative law in judicial application of law and determine its importance forimproving the system of public administration.MethodsThe methodological basis of the article is, in particular, the dialectical method, which made itpossible to consider the practice of judicial concretization of the principles of administrative lawin connection with the development of public administration. The dogmatic method was used indetermining the content of the concretization of law as a theoretical concept, while the formallegalmethod has become a tool for elaborating the case-law reflecting standards of understandingand application of the principles of administrative law.ResultsIt was found that, interpreting the principles of the rule of law and good governance,administrative courts have consistently adhered to and promoted among public authoritiesthe principle of superiority of the essense over the form and the inadmissibility of excessiveformalism in the activities and decisions of public authorities and administrative courts, whichprecludes absolutization of formal legal requirements. Also, significant practical value is inherentin the established in judicial practice concerning: (a) the presumption of validity of documentssubmitted by an individual with his application to the administrative body; (b) presumption ofgood faith of pubic authorities in the exercise of their powers; (c) the duty of civil servants to showsufficient attention and care in the performance of their duties and the inadmissibility of shiftingresponsibility to private persons for the mistakes and omissions of public authorities; (d) theobligation of public authorities to apply the approach that is most favorable to the individual inthe event of ambiguity or possibility of multiple interpretations; (e) the principle of binding publicauthorities with their published official non-normative clarifications and legality of actions ofnatural nad legal persons with reliance on these documents; (f) the principle of inadmissibilityof bringing a person to administrative responsibility twice for the same offense, regardless of theclassification of the relevant sanctions, provided they all lie within the plane of administrative law.ConclusionsThe author concludes that concretisation of principles of administrative law through inferringsubstantive and procedural standards of public administration from them while defining administrative practices incompatible with these standards is of vital importance for publicadministration. This ensures the functioning of the principles of administrative law not only asa value foundation for law, but also as a practical regulatory tool for and a concrete basis fordetermination of rights and duties of parties to particular administrative-legal relations.
{"title":"CONCRETIZATION OF THE PRINCIPLES OF ADMINISTRATIVE LAW AS A DIRECTION OF THE INFLUENCE OF JUDICIAL LAW ENFORCEMENT ON PUBLIC ADMINISTRATION","authors":"Yevhenii Doiar","doi":"10.17721/2227-796x.2021.2.01","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.2.01","url":null,"abstract":"PurposeThe purpose of the article is to provide specific and illustrative examples of concretization of theprinciples of administrative law in judicial application of law and determine its importance forimproving the system of public administration.MethodsThe methodological basis of the article is, in particular, the dialectical method, which made itpossible to consider the practice of judicial concretization of the principles of administrative lawin connection with the development of public administration. The dogmatic method was used indetermining the content of the concretization of law as a theoretical concept, while the formallegalmethod has become a tool for elaborating the case-law reflecting standards of understandingand application of the principles of administrative law.ResultsIt was found that, interpreting the principles of the rule of law and good governance,administrative courts have consistently adhered to and promoted among public authoritiesthe principle of superiority of the essense over the form and the inadmissibility of excessiveformalism in the activities and decisions of public authorities and administrative courts, whichprecludes absolutization of formal legal requirements. Also, significant practical value is inherentin the established in judicial practice concerning: (a) the presumption of validity of documentssubmitted by an individual with his application to the administrative body; (b) presumption ofgood faith of pubic authorities in the exercise of their powers; (c) the duty of civil servants to showsufficient attention and care in the performance of their duties and the inadmissibility of shiftingresponsibility to private persons for the mistakes and omissions of public authorities; (d) theobligation of public authorities to apply the approach that is most favorable to the individual inthe event of ambiguity or possibility of multiple interpretations; (e) the principle of binding publicauthorities with their published official non-normative clarifications and legality of actions ofnatural nad legal persons with reliance on these documents; (f) the principle of inadmissibilityof bringing a person to administrative responsibility twice for the same offense, regardless of theclassification of the relevant sanctions, provided they all lie within the plane of administrative law.ConclusionsThe author concludes that concretisation of principles of administrative law through inferringsubstantive and procedural standards of public administration from them while defining administrative practices incompatible with these standards is of vital importance for publicadministration. This ensures the functioning of the principles of administrative law not only asa value foundation for law, but also as a practical regulatory tool for and a concrete basis fordetermination of rights and duties of parties to particular administrative-legal relations.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"20 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81612492","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.1.05
V. Chaika, Larysa Chaika
Purpose. The objective of the article is to establish the content and meaning of conflicts that arise and cease in the field of tax relations. Methods. The evolution of scientific conflict concepts is due to the interdisciplinary approach: emphasis is placed on the impossibility of separating philosophical, social, psycholinguistic and legal aspects of the conflict. Comprehensive and systematic analysis of the “conflict” category was carried out using an integrative approach. Results. Modern approaches to the conflict as an object of scientific analysis are differentiated into two main groups: 1) the conflict is considered in a narrow field sense; 2) the conflict is studied from interdisciplinary positions. The legal nature and attributive properties of the tax conflict are clarified from the standpoint of the tax law theory. There are five groups of factors that confirm the actual existence of conflicting tax relationships. A special attention was paid to the characteristics of the tax dispute (as one of the stages of the tax conflict) and ways to protect the rights of taxpayers. In particular, the issue of self-protection of taxpayers’ rights as a guarantee of the realization of subjective rights and legitimate interests in tax relations and as a basis for preventing tax conflicts and tax disputes was highlighted. Conclusions. It is proved that the basis of any conflict is a contradiction, which plays a systemic role both for certain types of conflict and for different levels of their research. However, the presence of contradictions forms only the preconditions of possible behaviour, while interpersonal relationships – as a social category – play a crucial role in the choice of an individual strategy in communicative interaction. It was substantiated that the tax dispute is a mechanism to guarantee the realization of subjective rights of stakeholders and the balance of public and private interests in the field of taxation, given the following factors: 1) focus on protection and restoration of violated (disputed) rights, further; 2) focus on resolving the tax conflict that has arisen over the exercise of rights and obligations; 3) focus on ensuring stability of conditions to implement the legal norm and optimization of legal regulation; 4) considering the dispute by the state power authorized body ensures stability of the legal system of a society. It is determined that a tax dispute is a tax conflict of the tax relations subjects, submitted for consideration to the authorized jurisdiction body, concerning their mutual rights and obligations, as well as the conditions of their implementation, and which requires a solution based on a legal assessment of the facts and verification of the legality of the government entity’s actions in relation to the taxpayer.
{"title":"CONFLICTOLOGY OF TAX LEGAL RELATIONS: THEORETICAL AND METHODOLOGICAL ASPECT","authors":"V. Chaika, Larysa Chaika","doi":"10.17721/2227-796x.2021.1.05","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.1.05","url":null,"abstract":"Purpose. The objective of the article is to establish the content and meaning of conflicts that arise and cease in the field of tax relations. Methods. The evolution of scientific conflict concepts is due to the interdisciplinary approach: emphasis is placed on the impossibility of separating philosophical, social, psycholinguistic and legal aspects of the conflict. Comprehensive and systematic analysis of the “conflict” category was carried out using an integrative approach. Results. Modern approaches to the conflict as an object of scientific analysis are differentiated into two main groups: 1) the conflict is considered in a narrow field sense; 2) the conflict is studied from interdisciplinary positions. The legal nature and attributive properties of the tax conflict are clarified from the standpoint of the tax law theory. There are five groups of factors that confirm the actual existence of conflicting tax relationships. A special attention was paid to the characteristics of the tax dispute (as one of the stages of the tax conflict) and ways to protect the rights of taxpayers. In particular, the issue of self-protection of taxpayers’ rights as a guarantee of the realization of subjective rights and legitimate interests in tax relations and as a basis for preventing tax conflicts and tax disputes was highlighted. Conclusions. It is proved that the basis of any conflict is a contradiction, which plays a systemic role both for certain types of conflict and for different levels of their research. However, the presence of contradictions forms only the preconditions of possible behaviour, while interpersonal relationships – as a social category – play a crucial role in the choice of an individual strategy in communicative interaction. It was substantiated that the tax dispute is a mechanism to guarantee the realization of subjective rights of stakeholders and the balance of public and private interests in the field of taxation, given the following factors: 1) focus on protection and restoration of violated (disputed) rights, further; 2) focus on resolving the tax conflict that has arisen over the exercise of rights and obligations; 3) focus on ensuring stability of conditions to implement the legal norm and optimization of legal regulation; 4) considering the dispute by the state power authorized body ensures stability of the legal system of a society. It is determined that a tax dispute is a tax conflict of the tax relations subjects, submitted for consideration to the authorized jurisdiction body, concerning their mutual rights and obligations, as well as the conditions of their implementation, and which requires a solution based on a legal assessment of the facts and verification of the legality of the government entity’s actions in relation to the taxpayer.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"11 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88720780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.1.04
I. Kostenko
Today, the question of the probability of Ukraine’s accession to the European Space Agency is becoming quite popular. However, can we observe a real basis for this? Or will it remain at the level of planning and discussion without further implementation? The State Space Agency of Ukraine, and the European Space Agency, are currently working on a roadmap to address this issue. Thus, in two or three years we will have a concrete procedure, and according to the current head of the State Space Agency of Ukraine, we will have the opportunity to join the European Space Agency. But, on the other hand, many reasons contradict the reality of such plans, namely: non-compliance of the State Space Agency of Ukraine with many criteria, inadequate level of legal regulation in space, imperfect and not updated under modern forms of government in space, etc. An action plan for Ukraine’s integration into the European Space Agency of Ukraine, aimed at implementing all components of European Space Agency membership, namely the following tasks: ensuring the negotiation process with European Space Agency to expand cooperation at this stage; building the image of Ukraine as an active partner of European Space Agency, the EU, and the Member States and associated with European Space Agency in the implementation of projects in the field of space activities; approximation of Ukrainian and EU legislation in the area of space activities and project implementation procedures; preparation for the conclusion of the Agreement of the state cooperating with European Space Agency; preparation for Ukraine’s membership in European Space Agency. Among the key priorities of long-term cooperation with European partners, experts highlight the cooperation in the field of Global Navigation Satellite System (GNSS) in the framework of the pan-European global navigation satellite system EGNOS/Galileo, in the field of global monitoring for security and environment, and in particular in within the GMES project, as well as in the field of remote sensing of the Earth (remote sensing). This paper will explore how real this is and how ready Ukraine is to join the European Space Agency. After all, Ukraine’s accession to European Space Agency will give impetus to the development of space science and technology in Ukraine, allow it to join leading European space missions, enable Ukrainian companies to participate in European Space Agency programs and projects, and Ukraine – to use the final products of these programs and projects.
{"title":"MODERN SPACE POLICY OF UKRAINE AND THE REALITY OF JOINING THE EUROPEAN SPACE AGENCY","authors":"I. Kostenko","doi":"10.17721/2227-796x.2021.1.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.1.04","url":null,"abstract":"Today, the question of the probability of Ukraine’s accession to the European Space Agency is becoming quite popular. However, can we observe a real basis for this? Or will it remain at the level of planning and discussion without further implementation? The State Space Agency of Ukraine, and the European Space Agency, are currently working on a roadmap to address this issue. Thus, in two or three years we will have a concrete procedure, and according to the current head of the State Space Agency of Ukraine, we will have the opportunity to join the European Space Agency. But, on the other hand, many reasons contradict the reality of such plans, namely: non-compliance of the State Space Agency of Ukraine with many criteria, inadequate level of legal regulation in space, imperfect and not updated under modern forms of government in space, etc. An action plan for Ukraine’s integration into the European Space Agency of Ukraine, aimed at implementing all components of European Space Agency membership, namely the following tasks: ensuring the negotiation process with European Space Agency to expand cooperation at this stage; building the image of Ukraine as an active partner of European Space Agency, the EU, and the Member States and associated with European Space Agency in the implementation of projects in the field of space activities; approximation of Ukrainian and EU legislation in the area of space activities and project implementation procedures; preparation for the conclusion of the Agreement of the state cooperating with European Space Agency; preparation for Ukraine’s membership in European Space Agency. Among the key priorities of long-term cooperation with European partners, experts highlight the cooperation in the field of Global Navigation Satellite System (GNSS) in the framework of the pan-European global navigation satellite system EGNOS/Galileo, in the field of global monitoring for security and environment, and in particular in within the GMES project, as well as in the field of remote sensing of the Earth (remote sensing). This paper will explore how real this is and how ready Ukraine is to join the European Space Agency. After all, Ukraine’s accession to European Space Agency will give impetus to the development of space science and technology in Ukraine, allow it to join leading European space missions, enable Ukrainian companies to participate in European Space Agency programs and projects, and Ukraine – to use the final products of these programs and projects.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"66 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90393127","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：