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}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.4.02
O. Hrytsaienko
The objective of this article is to certificate the legal nature of the decisions of the European Courtof Human Rights (starting now referred to as the ECHR), to determine the place of the Conventionon Human Rights and Fundamental Freedoms (starting now referred to as the Convention) inthe hierarchy of the rule of law, research and elaboration of theoretical and practical provisionson the application of the Convention and the case-law of the ECHR by administrative courts.The author devoted particular attention to exploring the issue of application of provisions of theConvention and the jurisprudence of the ECHR in law enforcement.To achieve the set goals, the content of the Convention and the legislation of Ukraine as the legalbasis for guaranteeing and protecting the rights and freedoms of the individual in the sphereof public legal relations has been analyzed, and theoretical approaches to understanding keyconventional concepts, categories and principles have been elucidated. In addition, the author hasdefined the objectives of the ECHR and the role of the Court’s jurisprudence in law enforcementin Ukraine.The methodological basis of the research became general scientific and uniquelegal methodsto reach knowledge. In particular,scientificlearning methods such as analysis, description,comparison were used. The content of certain concepts had been clarified through a formallogicalapproach,and a comparative legal method had been used in the research of the applicationof the Convention by different States parties.The study found that the case-law of the ECHRtowards Ukraine demonstrated the need for an urgentchange in law enforcement practice and unconditional compliance and application by courts ofthe provisions of the Convention and court decisions of the ECHR. To guarantee the constitutionalright of a person to protection against unlawful decisions, actions or inaction of state bodies and to ensure the right of a person to a fair court during the execution of administrative proceedings,the Convention principles of judicial activity shall be subject to mandatory application, as wellas the Unified requirements of the right of interference in the person’s right.The legislator shouldenshrine these provisions in a procedural law – the Code of Administrative Procedure of Ukraine.The author concluded that ensuring the proper application by the state of the requirements of theConvention and the practice of the ECHR by the administrative Court would guarantee not onlythe implementation of the Convention rights of the individual but also adequate protection of therights and freedoms of the person from unlawful decisions, actions (inaction) of the subjects ofpower in the sphere of public-legal relations.
{"title":"APPLICATION OF THE CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS AND THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN ADMINISTRATIVE PROCEEDINGS","authors":"O. Hrytsaienko","doi":"10.17721/2227-796x.2021.4.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.4.02","url":null,"abstract":"The objective of this article is to certificate the legal nature of the decisions of the European Courtof Human Rights (starting now referred to as the ECHR), to determine the place of the Conventionon Human Rights and Fundamental Freedoms (starting now referred to as the Convention) inthe hierarchy of the rule of law, research and elaboration of theoretical and practical provisionson the application of the Convention and the case-law of the ECHR by administrative courts.The author devoted particular attention to exploring the issue of application of provisions of theConvention and the jurisprudence of the ECHR in law enforcement.To achieve the set goals, the content of the Convention and the legislation of Ukraine as the legalbasis for guaranteeing and protecting the rights and freedoms of the individual in the sphereof public legal relations has been analyzed, and theoretical approaches to understanding keyconventional concepts, categories and principles have been elucidated. In addition, the author hasdefined the objectives of the ECHR and the role of the Court’s jurisprudence in law enforcementin Ukraine.The methodological basis of the research became general scientific and uniquelegal methodsto reach knowledge. In particular,scientificlearning methods such as analysis, description,comparison were used. The content of certain concepts had been clarified through a formallogicalapproach,and a comparative legal method had been used in the research of the applicationof the Convention by different States parties.The study found that the case-law of the ECHRtowards Ukraine demonstrated the need for an urgentchange in law enforcement practice and unconditional compliance and application by courts ofthe provisions of the Convention and court decisions of the ECHR. To guarantee the constitutionalright of a person to protection against unlawful decisions, actions or inaction of state bodies and to ensure the right of a person to a fair court during the execution of administrative proceedings,the Convention principles of judicial activity shall be subject to mandatory application, as wellas the Unified requirements of the right of interference in the person’s right.The legislator shouldenshrine these provisions in a procedural law – the Code of Administrative Procedure of Ukraine.The author concluded that ensuring the proper application by the state of the requirements of theConvention and the practice of the ECHR by the administrative Court would guarantee not onlythe implementation of the Convention rights of the individual but also adequate protection of therights and freedoms of the person from unlawful decisions, actions (inaction) of the subjects ofpower in the sphere of public-legal relations.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"78 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77377420","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.2021.1.06
Z. Pelekh
Purpose. The purpose of the article is to determine regulatory legal principles for the realization of public right to liberty and integrity of the person beyond the sphere of criminal proceedings (from administrative law standpoint). Methods. The research methodology consists of general and special methods of scientific cognition, including system, comparative and legal, grouping, structural and logical, method of analysis, synthesis, deduction, induction and others that were used while studying the provisions of scientific papers, regulatory legal acts, while forming the directions of the realization of the right to liberty and integrity of the person, system of regulatory legal documents and while making author’s conclusions, propositions and recommendations. Results. The author has clarified the state of scientific developments in the first section of the article in regard to regulatory legal guaranteeing for the realization of the right to liberty and integrity of the person, has characterized regulatory legal acts of general nature as a source of regulatory legal regulation in this area and has defined their specific characteristics. The author has studied special regulatory legal acts in the second section of the article. The specified acts reveal the provisions of regulatory legal documents of general nature concerning the realization of the right to liberty and integrity of the person. Certain directions for the realization of the right to liberty and integrity of the person have been formulated. The author has emphasized the expediency of adopting regulatory legal act that regulates the mechanism for the realization of the right to liberty and integrity of the person and will include the provision on the concept and content of this right, directions of its realization, entities, instruments and procedures of guaranteeing, control over the compliance of this right and legislation in this area, liability for the violation, etc. The author has emphasized the necessity for further scientific research of this issue. A number of international regulatory legal acts have been presented in the third section. Those acts form the legal basis of the directions for the realization of the right to liberty and integrity of the person. The author has provided own vision on the correlation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms with the Civil Code of Ukraine and applied approaches to regulatory legal regulation of the right to liberty and integrity of the person. Conclusions. The author has concluded that the system of regulatory legal acts constitute regulatory legal principles for the realization of the right to liberty and integrity of the person. The level of regulatory legal guaranteeing for the realization of the right to liberty and integrity of the person has been commented. The author has outlined the directions and perspectives of scientific research concerning the realization of the rig
{"title":"REGULATORY LEGAL PRINCIPLES FOR THE REALIZATION OF PUBLIC RIGHT TO LIBERTY AND INTEGRITY OF THE PERSON","authors":"Z. Pelekh","doi":"10.17721/2227-796x.2021.1.06","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.1.06","url":null,"abstract":"Purpose. The purpose of the article is to determine regulatory legal principles for the realization of public right to liberty and integrity of the person beyond the sphere of criminal proceedings (from administrative law standpoint). Methods. The research methodology consists of general and special methods of scientific cognition, including system, comparative and legal, grouping, structural and logical, method of analysis, synthesis, deduction, induction and others that were used while studying the provisions of scientific papers, regulatory legal acts, while forming the directions of the realization of the right to liberty and integrity of the person, system of regulatory legal documents and while making author’s conclusions, propositions and recommendations. Results. The author has clarified the state of scientific developments in the first section of the article in regard to regulatory legal guaranteeing for the realization of the right to liberty and integrity of the person, has characterized regulatory legal acts of general nature as a source of regulatory legal regulation in this area and has defined their specific characteristics. The author has studied special regulatory legal acts in the second section of the article. The specified acts reveal the provisions of regulatory legal documents of general nature concerning the realization of the right to liberty and integrity of the person. Certain directions for the realization of the right to liberty and integrity of the person have been formulated. The author has emphasized the expediency of adopting regulatory legal act that regulates the mechanism for the realization of the right to liberty and integrity of the person and will include the provision on the concept and content of this right, directions of its realization, entities, instruments and procedures of guaranteeing, control over the compliance of this right and legislation in this area, liability for the violation, etc. The author has emphasized the necessity for further scientific research of this issue. A number of international regulatory legal acts have been presented in the third section. Those acts form the legal basis of the directions for the realization of the right to liberty and integrity of the person. The author has provided own vision on the correlation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms with the Civil Code of Ukraine and applied approaches to regulatory legal regulation of the right to liberty and integrity of the person. Conclusions. The author has concluded that the system of regulatory legal acts constitute regulatory legal principles for the realization of the right to liberty and integrity of the person. The level of regulatory legal guaranteeing for the realization of the right to liberty and integrity of the person has been commented. The author has outlined the directions and perspectives of scientific research concerning the realization of the rig","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"54 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88453374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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