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}
Pub Date : 2021-01-01DOI: 10.17721/2227-796x.2021.4.01
Liliia Popova, A. Khromov
The article is devoted to the study of standardization in the field of archival affairs and record keeping in the conditions of development of the world information space and digitalization of society. The aim of the article is to study the current national archival legislation, national standards in the field of archives and record keeping and identify the state and problems of harmonization of international standards in Ukraine in the development of global information space and digitalization of society. Methods. The theoretical and methodological basis of the study are the works of leading domestic and foreign scholars on harmonization and standardization in the field of archives and record keeping, legislation and regulations governing activities in this area. In the process of research general scientific and special legal methods of cognition were used. Among the general scientific methods used is the dialectical method, which is revealed using the methods of analysis and synthesis, ascent from simple to complex, from abstract to concrete, abstraction, idealization and formalization. Results. In recent years, Ukraine has followed international and European standardization rulesand procedures, as well as the direct implementation of international standards. At the sametime, the current state of standardization in the field of archives and record keeping in the contextof informatization and digitalization of society can be described as one that lags far behind theinternational. A number of standards in the field of archiving and record keeping are analyzed.As a result of research of theoretical and organizational-practical principles of harmonizationand standardization in the field of archives and record keeping in Ukraine, a number of problemsrelated to financial problems, low level of information-analytical and organizational support ofstandardization process, etc. It is concluded that the harmonization of international standards inthe field of archives and record keeping in Ukraine largely depends on optimizing the structure ofstate archives of Ukraine and, accordingly, their activities, which will increase the efficiency ofthe archival industry as a whole.Prospects for further research will be aimed at further studying the international experienceof standardization in the field of archives and record keeping, harmonization of internationalstandards into national practice, which will help increase the effectiveness of archival practice.
{"title":"STANDARDIZATION IN THE FIELD OF ARCHIVAL AFFAIRS: INTERNATIONAL EXPERIENCE AND PROBLEMS OF HARMONIZATION IN UKRAINE","authors":"Liliia Popova, A. Khromov","doi":"10.17721/2227-796x.2021.4.01","DOIUrl":"https://doi.org/10.17721/2227-796x.2021.4.01","url":null,"abstract":"The article is devoted to the study of standardization in the field of archival affairs and record keeping in the conditions of development of the world information space and digitalization of society. The aim of the article is to study the current national archival legislation, national standards in the field of archives and record keeping and identify the state and problems of harmonization of international standards in Ukraine in the development of global information space and digitalization of society. Methods. The theoretical and methodological basis of the study are the works of leading domestic and foreign scholars on harmonization and standardization in the field of archives and record keeping, legislation and regulations governing activities in this area. In the process of research general scientific and special legal methods of cognition were used. Among the general scientific methods used is the dialectical method, which is revealed using the methods of analysis and synthesis, ascent from simple to complex, from abstract to concrete, abstraction, idealization and formalization. Results. In recent years, Ukraine has followed international and European standardization rulesand procedures, as well as the direct implementation of international standards. At the sametime, the current state of standardization in the field of archives and record keeping in the contextof informatization and digitalization of society can be described as one that lags far behind theinternational. A number of standards in the field of archiving and record keeping are analyzed.As a result of research of theoretical and organizational-practical principles of harmonizationand standardization in the field of archives and record keeping in Ukraine, a number of problemsrelated to financial problems, low level of information-analytical and organizational support ofstandardization process, etc. It is concluded that the harmonization of international standards inthe field of archives and record keeping in Ukraine largely depends on optimizing the structure ofstate archives of Ukraine and, accordingly, their activities, which will increase the efficiency ofthe archival industry as a whole.Prospects for further research will be aimed at further studying the international experienceof standardization in the field of archives and record keeping, harmonization of internationalstandards into national practice, which will help increase the effectiveness of archival practice.","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":"85647319","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 : 2020-09-17DOI: 10.17721/2227-796x.2020.1.06
V. Budkevych
The purpose of the scientific paper is to develop solutions for the improvement of the electronic evidence sub-institute in the administrative procedure in Ukraine based on the informational approach. The methodological framework for the research is represented by theoretical advances in the field of procedural law, with an emphasis on the theory of evidence and proof, as well as computer forensics, information law and technical literature. Comparative and formal legal methods, structural-functional analysis, inductive and deductive reasoning have been used to conduct the research. As a result of the research the analysis of the current theoretical developments in the study of the interdisciplinary sub-institute of the electronic evidence has been conducted; scientific comparison between the “objective” (traditional to the domestic theory of proof) and “informational” approaches to the definition of electronic evidence has been carried out; main theoretical and practical issues, arising from the application of different approaches to the perception of electronic evidence have been discovered and propositions for legislative amendments were made. Key findings of the study are briefly summarized below. In determination of the concept and the essence of electronic evidence an optimal combination of both objective and informational approaches to the perception of the electronic evidence should be applied. Differentiation between the original and the copy of electronic evidence should not be abandoned, and it should be allowed for the court to substantiate its findings with the copies of the electronic evidence in specific cases. Particular amendments to the Code of Administrative Procedure of Ukraine should be made with respect to: the definition of the original and the copy of electronic evidence; legal regulation of particular issues concerned with the use of originals and copies of the electronic evidence when proving the factual circumstances of the case (as well as when rendering the final and interim decisions by the court and when using the special knowledge) – primarily, in compliance with technical standards, that have recently been approved in Ukraine, regulating certain issues on the processing of electronic digital evidence.
{"title":"ELECTRONIC EVIDENCE IN THE ADMINISTRATIVE PROCEDURE IN UKRAINE IN THE LIGHT OF THE INFORMATIONAL APPROACH","authors":"V. Budkevych","doi":"10.17721/2227-796x.2020.1.06","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.1.06","url":null,"abstract":"The purpose of the scientific paper is to develop solutions for the improvement of the electronic\u0000\u0000evidence sub-institute in the administrative procedure in Ukraine based on the informational approach. The methodological framework for the research is represented by theoretical advances in the field of procedural law, with an emphasis on the theory of evidence and proof, as well as computer forensics, information law and technical literature. Comparative and formal legal methods, structural-functional analysis, inductive and deductive reasoning have been used to conduct the research. As a result of the research the analysis of the current theoretical developments in the study of the interdisciplinary sub-institute of the electronic evidence has been conducted; scientific comparison between the “objective” (traditional to the domestic theory of proof) and “informational” approaches to the definition of electronic evidence has been carried out; main theoretical and practical issues, arising from the application of different approaches to the perception of electronic evidence have been discovered and propositions for legislative amendments were made. Key findings of the study are briefly summarized below. In determination of the concept and the essence of electronic evidence an optimal combination of both objective and informational approaches to the perception of the electronic evidence should be applied. Differentiation between the original and the copy of electronic evidence should not be abandoned, and it should be allowed for the court to substantiate its findings with the copies of the electronic evidence in specific cases. Particular amendments to the Code of Administrative Procedure of Ukraine should be made with respect to: the definition of the original and the copy of electronic evidence; legal regulation of particular issues concerned with the use of originals and copies of the electronic evidence when proving the factual circumstances of the case (as well as when rendering the final and interim decisions by the court and when using the special knowledge) – primarily, in compliance with technical standards, that have recently been approved in Ukraine, regulating certain issues on the processing of electronic digital evidence.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88785307","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 : 2020-01-01DOI: 10.17721/2227-796x.2020.4.05
K. Kutsenko
The scientific research is focused on the legal status of the court session secretary in civil and administrative proceedings. The purpose of the article is to determine specific features of the legal status of the court session secretary. The objective of the research is to develop recommendations for amending the current legislation to improve the legal status of the court session secretary. The methodological basis of the research constituted general scientific and special legal methods of cognition. The author has used the method of philosophical dialectics among the general scientific methods, which is revealed through the methods of analysis and synthesis, ascent from simple to complex, from abstract to concrete, modeling, abstraction, idealization and formalization. The special legal methods used in the research combine systemic, theoretical and legal, formal and dogmatic, comparative and legal methods of cognition, as well as the method of state and legal modeling. The norms of legislative acts and by-laws regulating the legal status of this official have been analyzed. The author has defined specific features of the legal status of the court session secretary related to the public service, belonging to the court administration, place and significance in civil and administrative proceedings. Specific features of the legal status of the court session secretaries are to apply the rights and responsibilities of civil servants to them; to appoint them to the position based on the results of the competition; the submission of a declaration of their property status for the previous year before the appointment; to apply restrictions of civil servants and anti-corruption restrictions for them. Remuneration, social and legal protection of the court session secretaries are determined in accordance with the legislation on public service; they exercise their powers within the internal labor regulations established for court staff, they comply with the rules of conduct for court employees and ethical requirements for civil servants in relations with court staff and visitors. Among specific features of the legal status we should name the existence of special grounds for bringing to disciplinary liability, the focus of powers on organizational provision of the case hearing by a judge, the impact of the nature of communication (interaction) of the court session secretary with the participants in the trial on the authority of the judicial power in society, the possibility to file the motion to recuse the court session secretary in civil and administrative proceedings. The author as a result of studying the researched problem has formulated own definition of the “legal status of the court session secretary”. It has been offered to amend the current legislation, which determines the legal status of the court session secretary.
{"title":"LEGAL STATUS OF THE COURT SESSION SECRETARY IN CIVIL AND ADMINISTRATIVE PROCEEDINGS","authors":"K. Kutsenko","doi":"10.17721/2227-796x.2020.4.05","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.4.05","url":null,"abstract":"The scientific research is focused on the legal status of the court session secretary in civil and administrative proceedings. The purpose of the article is to determine specific features of the legal status of the court session secretary. The objective of the research is to develop recommendations for amending the current legislation to improve the legal status of the court session secretary. The methodological basis of the research constituted general scientific and special legal methods of cognition. The author has used the method of philosophical dialectics among the general scientific methods, which is revealed through the methods of analysis and synthesis, ascent from simple to complex, from abstract to concrete, modeling, abstraction, idealization and formalization. The special legal methods used in the research combine systemic, theoretical and legal, formal and dogmatic, comparative and legal methods of cognition, as well as the method of state and legal modeling. The norms of legislative acts and by-laws regulating the legal status of this official have been analyzed. The author has defined specific features of the legal status of the court session secretary related to the public service, belonging to the court administration, place and significance in civil and administrative proceedings. Specific features of the legal status of the court session secretaries are to apply the rights and responsibilities of civil servants to them; to appoint them to the position based on the results of the competition; the submission of a declaration of their property status for the previous year before the appointment; to apply restrictions of civil servants and anti-corruption restrictions for them. Remuneration, social and legal protection of the court session secretaries are determined in accordance with the legislation on public service; they exercise their powers within the internal labor regulations established for court staff, they comply with the rules of conduct for court employees and ethical requirements for civil servants in relations with court staff and visitors. Among specific features of the legal status we should name the existence of special grounds for bringing to disciplinary liability, the focus of powers on organizational provision of the case hearing by a judge, the impact of the nature of communication (interaction) of the court session secretary with the participants in the trial on the authority of the judicial power in society, the possibility to file the motion to recuse the court session secretary in civil and administrative proceedings. The author as a result of studying the researched problem has formulated own definition of the “legal status of the court session secretary”. It has been offered to amend the current legislation, which determines the legal status of the court session secretary.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"13 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78680531","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 : 2020-01-01DOI: 10.17721/2227-796x.2020.1.04
A. Nefedova, Tatiana Shyrmova
The article deals with the subject of administrative misconduct in road transport and its role in the rulemaking and enforcement activities. The basic doctrinal approaches to understanding the object of administrative misconduct in road transport are summarized. It is concluded that there is no single vision of their nature and content in domestic administrative law. The necessity to harmonize scientific positions and develop a unified concept of the object of administrative misconduct (including administrative misconduct in road transport) at all levels of its generalization and objectification is substantiated. On the basis of the analysis of modern scientific researches and the current administrativetort legislation the classification of objects of administrative offenses in the road transport is made. The author’s definitions of the concepts of general, generic, species and direct object of administrative offenses in road transport are formulated. Their actual content is specified. The essence of the main and additional object of administrative misconduct is revealed. The polysubjectiveness of the majority of administrative offenses in the road transport is ascertained. The role of the object of administrative misconduct in the structuring and systematization of domestic administrative-tort legislation is investigated. It is determined that the generic object of administrative misconduct is the main criterion for the division of the Special part of the Code of Administrative Offenses into separate Chapters. Topical issues of legal regulation of administrative-tort relations in road transport are highlighted. A set of legislative proposals aimed at harmonizing the structure of the Code of Administrative Offenses, in particular, regarding the regulation of liability for administrative offenses in road transport, has been elaborated.
{"title":"THE OBJECT OF THE ADMINISTRATIVE OFFENSE IN THE QUALIFICATION AND SYSTEMATISATION OF DOMESTIC ADMINISTRATIVE-TORT LEGISLATION ON ROAD TRANSPORT","authors":"A. Nefedova, Tatiana Shyrmova","doi":"10.17721/2227-796x.2020.1.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.1.04","url":null,"abstract":"The article deals with the subject of administrative misconduct in road transport and its role in the rulemaking and enforcement activities. The basic doctrinal approaches to understanding the object of administrative misconduct in road transport are summarized. It is concluded that there is no single vision of their nature and content in domestic administrative law. The necessity to harmonize scientific positions and develop a unified concept of the object of administrative misconduct (including administrative misconduct in road transport) at all levels of its generalization and objectification is substantiated. On the basis of the analysis of modern scientific researches and the current administrativetort legislation the classification of objects of administrative offenses in the road transport is made. The author’s definitions of the concepts of general, generic, species and direct object of administrative offenses in road transport are formulated. Their actual content is specified. The essence of the main and additional object of administrative misconduct is revealed. The polysubjectiveness of the majority of administrative offenses in the road transport is ascertained. The role of the object of administrative misconduct in the structuring and systematization of domestic administrative-tort legislation is investigated. It is determined that the generic object of administrative misconduct is the main criterion for the division of the Special part of the Code of Administrative Offenses into separate Chapters. Topical issues of legal regulation of administrative-tort relations in road transport are highlighted. A set of legislative proposals aimed at harmonizing the structure of the Code of Administrative Offenses, in particular, regarding the regulation of liability for administrative offenses in road transport, has been elaborated.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"30 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86251970","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 : 2020-01-01DOI: 10.17721/2227-796x.2020.1.03
Thomas Mann
Over the past 20 years, political attitudes in Germany towards the nuclear industry have been characterised less by consistency than by some major policy shifts, and the same can be said for the legislation that emerged from these attitudes. Although a number of these about-turns were predictable, others were less so because of their dependence on external factors. What now looks likely to be the final1 decision to phase out the civil use of nuclear power in Germany by 31 December 20222 raises a whole host of legal questions. In particular, the procedure followed to implement this phase-out provides ample material for debates on questions of constitutionality. Further matters of jurisprudential interest include the agreements concluded with the nuclear industry before the final phase-out decision was taken and the chronologically close political about-face themselves. Finally, a degree of legal uncertainty still surrounds not only the as-yet still unresolved issue of final repositories but also the resurgent debate over the source of funding for the dismantling of nuclear power plants. After providing an overview of the initial situation and the problems arising in connection with Germany’s phasing out of the civil use of nuclear energy, this paper will place these issues in their proper legal context before evaluating them and highlighting the connection between these points of nuclear law and the current upheaval in German energy policy.
{"title":"THE PHASE-OUT OF NUCLEAR POWER IN GERMANY","authors":"Thomas Mann","doi":"10.17721/2227-796x.2020.1.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.1.03","url":null,"abstract":"Over the past 20 years, political attitudes in Germany towards the nuclear industry have been characterised less by consistency than by some major policy shifts, and the same can be said for the legislation that emerged from these attitudes. Although a number of these about-turns were predictable, others were less so because of their dependence on external factors. What now looks likely to be the final1 decision to phase out the civil use of nuclear power in Germany by 31 December 20222 raises a whole host of legal questions. In particular, the procedure followed to implement this phase-out provides ample material for debates on questions of constitutionality. Further matters of jurisprudential interest include the agreements concluded with the nuclear industry before the final phase-out decision was taken and the chronologically close political about-face themselves. Finally, a degree of legal uncertainty still surrounds not only the as-yet still unresolved issue of final repositories but also the resurgent debate over the source of funding for the dismantling of nuclear power plants. After providing an overview of the initial situation and the problems arising in connection with Germany’s phasing out of the civil use of nuclear energy, this paper will place these issues in their proper legal context before evaluating them and highlighting the connection between these points of nuclear law and the current upheaval in German energy policy.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"49 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89786794","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 : 2020-01-01DOI: 10.17721/2227-796x.2020.3.03
I. Boiko
The article emphasizes the need to adopt a legislative act on administrative procedure in Ukraine,which is conditioned by the European integration aspirations of the state, human-centeredorientation of public administration. In the absence of a single law that would contain therules of administrative procedure, fragmentary legal regulation of the procedure for adoptingadministrative acts, case law plays a significant role in shaping the concept of administrativeprocedure. The purpose of the article is to study the case law in order to outline the positions formulated by the court to understand the content of the administrative procedure, the rulesthat make it up. The study used the following scientific methods: empirical, which was able totrack among a large number of court decisions, which formed positions that embody the basicprinciples and principles of the concept of administrative procedure, and theoretical, includinganalysis and generalization, which allowed to draw conclusions about the role of judicial practicein developing the basic foundations of administrative procedure. Legal procedure, interpreted bythe court as part of the rule of law and the rule of law, is an important guarantee against abuse bypublic authorities in decision-making and actions that must ensure fair treatment of the individual.As a result of the research it was found out that the courts have developed and outlined in theirdecisions a number of positions on understanding certain aspects of administrative procedure: theessence of legal procedure, its significance in administrative and legal regulation; the essence ofthe principle of legitimate expectations; regarding the assessment of the ratio of the violation ofthe administrative procedure with the legality of the adopted act; understanding of a person’s rightto be heard (or the right to participate in administrative proceedings); ensuring the legitimateinterest (trust) of the person in maintaining the administrative act; on the admissibility of evidencein administrative proceedings; impossibility of termination (cancellation) of an administrative act,the effect of which is exhausted by execution, as well as regarding the principles of implementationof discretion by the public administration. The article concludes that the case law forms the basicideas and conclusions that can be embedded in the doctrine of administrative procedure. Thus, infact, the courts fill the gaps in the legal regulation of the procedure for adopting administrative acts.
{"title":"THE ROLE OF JUDICIAL PRACTICE IN THE FORMATION OF THE CONCEPT ADMINISTRATIVE PROCEDURE","authors":"I. Boiko","doi":"10.17721/2227-796x.2020.3.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.3.03","url":null,"abstract":"The article emphasizes the need to adopt a legislative act on administrative procedure in Ukraine,which is conditioned by the European integration aspirations of the state, human-centeredorientation of public administration. In the absence of a single law that would contain therules of administrative procedure, fragmentary legal regulation of the procedure for adoptingadministrative acts, case law plays a significant role in shaping the concept of administrativeprocedure. The purpose of the article is to study the case law in order to outline the positions formulated by the court to understand the content of the administrative procedure, the rulesthat make it up. The study used the following scientific methods: empirical, which was able totrack among a large number of court decisions, which formed positions that embody the basicprinciples and principles of the concept of administrative procedure, and theoretical, includinganalysis and generalization, which allowed to draw conclusions about the role of judicial practicein developing the basic foundations of administrative procedure. Legal procedure, interpreted bythe court as part of the rule of law and the rule of law, is an important guarantee against abuse bypublic authorities in decision-making and actions that must ensure fair treatment of the individual.As a result of the research it was found out that the courts have developed and outlined in theirdecisions a number of positions on understanding certain aspects of administrative procedure: theessence of legal procedure, its significance in administrative and legal regulation; the essence ofthe principle of legitimate expectations; regarding the assessment of the ratio of the violation ofthe administrative procedure with the legality of the adopted act; understanding of a person’s rightto be heard (or the right to participate in administrative proceedings); ensuring the legitimateinterest (trust) of the person in maintaining the administrative act; on the admissibility of evidencein administrative proceedings; impossibility of termination (cancellation) of an administrative act,the effect of which is exhausted by execution, as well as regarding the principles of implementationof discretion by the public administration. The article concludes that the case law forms the basicideas and conclusions that can be embedded in the doctrine of administrative procedure. Thus, infact, the courts fill the gaps in the legal regulation of the procedure for adopting administrative acts.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"49 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89789752","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 : 2020-01-01DOI: 10.17721/2227-796x.2020.3.06
A. Lohvyn
In the article the author explored the legal regulation of counteraction to VAT evasion (avoidance by taxpayers of their tax liability by minimizing tax liabilities), which is a specific type of activity of tax authorities. The continuous development of public relations in the field of taxation in Ukraine requires effective application of administrative prevention (counteraction) measures in this area and, of course, the qualitative state of legal regulation of these measures. In the legal literature, administrative prevention measures were mainly studied in terms of conceptual and categorical apparatus and their classification. To date, considering the introduction of electronic administration of value added tax, studies on the use of administrative prevention measures by public authorities in the scientific field have not been analyzed. Taking into account international experience and based on a systematic analysis of the current legislation, the author deals with the legal mechanism for counteracting evasion from paying value added tax by means of introducing electronic administration of value added tax. The author notes that with the introduction of automated monitoring of risk assessment (taking into consideration the criterion of the amount of paid value added tax) (the so-called “tax burden” and/or “tax return”), the state is trying to increase budget revenues. The author concludes that administrative prevention (counteraction) measures used by regulatory authorities, in a sense, are the tools by which it is possible to achieve timely response to the activities of taxpayers aimed at tax evasion. It was substantiated that automated monitoring of compliance of tax invoices with the risk assessment criteria can be considered as a preventive measure, according to which taxpayers’ transactions aimed at forming an illegal tax credit are detected by regulatory authorities. In turn, making decisions if a payer of value added tax meets the Criteria of being a risky payer, and accordingly, further suspension (blocking) of registration of tax invoices of the specified payer, is a measure to counteract evasion from paying value added tax. It was proved that from the legal point of view, the legal mechanism of administrative prevention (counteraction) measures, in particular, those regarding the implementation (conducting) of automated monitoring, should contribute to the avoidance of legal collisions and contradictions that arise between regulatory authorities and taxpayers.
{"title":"PREVENTION OF OFFENCES IN THE SPHERE OF VALUE ADDED TAX ADMINISTRATION","authors":"A. Lohvyn","doi":"10.17721/2227-796x.2020.3.06","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.3.06","url":null,"abstract":"In the article the author explored the legal regulation of counteraction to VAT evasion (avoidance by taxpayers of their tax liability by minimizing tax liabilities), which is a specific type of activity of tax authorities. The continuous development of public relations in the field of taxation in Ukraine requires effective application of administrative prevention (counteraction) measures in this area and, of course, the qualitative state of legal regulation of these measures. In the legal literature, administrative prevention measures were mainly studied in terms of conceptual and categorical apparatus and their classification. To date, considering the introduction of electronic administration of value added tax, studies on the use of administrative prevention measures by public authorities in the scientific field have not been analyzed. Taking into account international experience and based on a systematic analysis of the current legislation, the author deals with the legal mechanism for counteracting evasion from paying value added tax by means of introducing electronic administration of value added tax. The author notes that with the introduction of automated monitoring of risk assessment (taking into consideration the criterion of the amount of paid value added tax) (the so-called “tax burden” and/or “tax return”), the state is trying to increase budget revenues. The author concludes that administrative prevention (counteraction) measures used by regulatory authorities, in a sense, are the tools by which it is possible to achieve timely response to the activities of taxpayers aimed at tax evasion. It was substantiated that automated monitoring of compliance of tax invoices with the risk assessment criteria can be considered as a preventive measure, according to which taxpayers’ transactions aimed at forming an illegal tax credit are detected by regulatory authorities. In turn, making decisions if a payer of value added tax meets the Criteria of being a risky payer, and accordingly, further suspension (blocking) of registration of tax invoices of the specified payer, is a measure to counteract evasion from paying value added tax. It was proved that from the legal point of view, the legal mechanism of administrative prevention (counteraction) measures, in particular, those regarding the implementation (conducting) of automated monitoring, should contribute to the avoidance of legal collisions and contradictions that arise between regulatory authorities and taxpayers.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"39 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85060029","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 : 2020-01-01DOI: 10.17721/2227-796x.2020.1.07
R. Madaliev
The article provides an overview and stages of the development of law and legislation on administrative procedures and administrative justice in the Kyrgyz Republic. The article discusses the adoption, implementation, content and the application of the new Law on Administrative Procedure and the Administrative Procedure Code of the Kyrgyz Republic. At the beginning, the socio-political background and the rationale for the ongoing judicial reforms and the efforts of the state to strengthen the rule of law in the Kyrgyz Republic are described. A significant part of article considers steps for developing a law on administrative procedures of the Kyrgyz Republic and the problems associated with its development. Then, the content and issues of implementation and the problems of the practical application of the new law on administrative procedures of the Kyrgyz Republic are disclosed. A separate part is devoted to the development, content, implementation and practice of the application of the new Administrative Procedure Code of the Kyrgyz Republic. The article also outlines the problems and shortcomings in the practice of applying legal norms on administrative procedures and administrative justice in the Kyrgyz Republic. In general, the article summarizes that a new system of administrative law has been formed in Kyrgyzstan to replace “Soviet” administrative law, but there are still problems in understanding and applying the new administrative legislation: not all the regulatory framework and practice of administrative agencies are brought into line with the new legislation; there are facts of not understanding, ignoring and not applying the new legislation by public authorities; not all curricula of higher legal education are brought in line with a new understanding of administrative law. It is necessary to continue the implementation measures to put into practice the new administrative legislation through organizational measures to educate and train law applicators, as well as the development of judicial practice in administrative cases.
{"title":"DEVELOPMENT OF THE ADMINISTRATIVE LAW IN THE KYRGYZ REPUBLIC","authors":"R. Madaliev","doi":"10.17721/2227-796x.2020.1.07","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.1.07","url":null,"abstract":"The article provides an overview and stages of the development of law and legislation on administrative procedures and administrative justice in the Kyrgyz Republic. The article discusses the adoption, implementation, content and the application of the new Law on Administrative Procedure and the Administrative Procedure Code of the Kyrgyz Republic. At the beginning, the socio-political background and the rationale for the ongoing judicial reforms and the efforts of the state to strengthen the rule of law in the Kyrgyz Republic are described. A significant part of article considers steps for developing a law on administrative procedures of the Kyrgyz Republic and the problems associated with its development. Then, the content and issues of implementation and the problems of the practical application of the new law on administrative procedures of the Kyrgyz Republic are disclosed. A separate part is devoted to the development, content, implementation and practice of the application of the new Administrative Procedure Code of the Kyrgyz Republic. The article also outlines the problems and shortcomings in the practice of applying legal norms on administrative procedures and administrative justice in the Kyrgyz Republic. In general, the article summarizes that a new system of administrative law has been formed in Kyrgyzstan to replace “Soviet” administrative law, but there are still problems in understanding and applying the new administrative legislation: not all the regulatory framework and practice of administrative agencies are brought into line with the new legislation; there are facts of not understanding, ignoring and not applying the new legislation by public authorities; not all curricula of higher legal education are brought in line with a new understanding of administrative law. It is necessary to continue the implementation measures to put into practice the new administrative legislation through organizational measures to educate and train law applicators, as well as the development of judicial practice in administrative cases.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"73 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85060114","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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