Pub Date : 2020-01-01DOI: 10.17721/2227-796x.2020.3.01
Zhanna Bernatska
The article is focused on clarifying the place of law norms, which are the basis for the formationand implementation of the economic function of the Ukrainian state within the legal system ofUkraine. The research is based on an in-depth analysis of national and foreign legal literature,primarily German one, focused on the system of law, the grounds for the division of law into publicand private, the system of administrative law as the branch of law, administrative and commerciallaw as the branch of Special Administrative Law.The purpose of the article is to substantiate the idea that administrative and commercial law isthe basis for the formation and implementation of the economic function of the Ukrainian state.The author has separately studied internal structure of this branch of Special Administrative Lawin order to single out new legal entities within its boundaries.System of methods. Generally scientific, special and legal techniques and methods of cognitionhave been used during the research. The historical method of cognition has been used whilestudying the history of the formation of views on the division of law into public and private.The formal and logical method has been used while classifying the criteria for dividing the lawinto public and private. The system and functional method has been used while studying the natureof the legal system and the structure of administrative law as the branch of law. The comparativemethod has been used to clarify approaches to understanding the system of administrative law inUkraine and Germany.Results. The use of the specified methods of scientific cognition made it possible: to state theexistence of the universally recognized theory of the division of law into public and private; tosubstantiate the need for strict adherence to this theory of the division of law while separatinglegal entities within those subsystems of law (branches of law, sub-branches of law and legalinstitutions); to emphasize the need to bring the system of administrative law in line with Europeancounterparts, which provide its inevitable division into General and Special Administrative Law; to single out new branches of law within the framework of Special Administrative Law, takinginto account the functional activities of public administration, as well as administrative and legalguaranteeing of the rights of individuals in the field of public administration.Conclusions. The conducted research allowed us to conclude that the formation and implementationof the economic function of the Ukrainian state is guaranteed by administrative and commerciallaw.The separation of this branch of Special Administrative Law is a logical consequence of: a) theapplication of the theory of law division into public and private to legal relations arising fromthe formation and implementation of the economic function of the Ukrainian state; b) thoroughreform of the system of administrative law of Ukraine, which provides the separation of newbranches of l
{"title":"ADMINISTRATIVE AND COMMERCIAL LAW AS A LEGAL BASIS FOR THE FORMATION AND IMPLEMENTATION OF THE ECONOMIC FUNCTION OF THE UKRAINIAN STATE","authors":"Zhanna Bernatska","doi":"10.17721/2227-796x.2020.3.01","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.3.01","url":null,"abstract":"The article is focused on clarifying the place of law norms, which are the basis for the formationand implementation of the economic function of the Ukrainian state within the legal system ofUkraine. The research is based on an in-depth analysis of national and foreign legal literature,primarily German one, focused on the system of law, the grounds for the division of law into publicand private, the system of administrative law as the branch of law, administrative and commerciallaw as the branch of Special Administrative Law.The purpose of the article is to substantiate the idea that administrative and commercial law isthe basis for the formation and implementation of the economic function of the Ukrainian state.The author has separately studied internal structure of this branch of Special Administrative Lawin order to single out new legal entities within its boundaries.System of methods. Generally scientific, special and legal techniques and methods of cognitionhave been used during the research. The historical method of cognition has been used whilestudying the history of the formation of views on the division of law into public and private.The formal and logical method has been used while classifying the criteria for dividing the lawinto public and private. The system and functional method has been used while studying the natureof the legal system and the structure of administrative law as the branch of law. The comparativemethod has been used to clarify approaches to understanding the system of administrative law inUkraine and Germany.Results. The use of the specified methods of scientific cognition made it possible: to state theexistence of the universally recognized theory of the division of law into public and private; tosubstantiate the need for strict adherence to this theory of the division of law while separatinglegal entities within those subsystems of law (branches of law, sub-branches of law and legalinstitutions); to emphasize the need to bring the system of administrative law in line with Europeancounterparts, which provide its inevitable division into General and Special Administrative Law; to single out new branches of law within the framework of Special Administrative Law, takinginto account the functional activities of public administration, as well as administrative and legalguaranteeing of the rights of individuals in the field of public administration.Conclusions. The conducted research allowed us to conclude that the formation and implementationof the economic function of the Ukrainian state is guaranteed by administrative and commerciallaw.The separation of this branch of Special Administrative Law is a logical consequence of: a) theapplication of the theory of law division into public and private to legal relations arising fromthe formation and implementation of the economic function of the Ukrainian state; b) thoroughreform of the system of administrative law of Ukraine, which provides the separation of newbranches of l","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"195 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76946643","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.2020.4.03
V. Shulgin
The article analyzes the historical, legal and rule-making features of the systematization of military legislation of Ukraine during the IX-early XXI centuries in the Ukrainian lands as an ethnic state and states that influenced its formation, development and current state. In order to effectively systematize the military legislation of Ukraine, which is characterized by imbalance and inconsistency of acts as a result of permanent changes in conditions of political and economic instability, armed aggression and the ongoing special period, a comparative historical and legal analysis of the state and achievements in practical military codification experience that must be taken into account when streamlining the legislation in the field of defense of Ukraine. As a result of the conducted research the tendencies and normative-legal features of each historical period of systematization of the military legislation on the Ukrainian lands are established. It was found that by the XVII century. The provisions of military law were only interspersed with acts of general law; the emergence of a regular army led to institutional systematization in the form of separate military statutes. The only sectoral-targeted systematization of military legislation took place in the form of incorporation and only after the systematization of general legislation through the publication of the Code of Military Resolutions of 1839, 1859, 1869. Systematization of military legislation of XX–XXI centuries covered an even larger area of military-administrative, military-service, military-combat, civil-military social relations, but the rudimentary influence of the Code of Military Resolutions is preserved in the military statutes and military-criminal acts of Ukraine. Sectoral systematization of military legislation in the form of codification (unified Military Code) or intersectoral - in the field of defense (unified National Defense Code) has no short-term prospects due to weak theoretical and legal and practical-applied development.
{"title":"SYSTEMATIZATION OF MILITARY LEGISLATION OF UKRAINE: HISTORICAL AND LEGAL ASPECTS","authors":"V. Shulgin","doi":"10.17721/2227-796x.2020.4.03","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.4.03","url":null,"abstract":"The article analyzes the historical, legal and rule-making features of the systematization of military legislation of Ukraine during the IX-early XXI centuries in the Ukrainian lands as an ethnic state and states that influenced its formation, development and current state. In order to effectively systematize the military legislation of Ukraine, which is characterized by imbalance and inconsistency of acts as a result of permanent changes in conditions of political and economic instability, armed aggression and the ongoing special period, a comparative historical and legal analysis of the state and achievements in practical military codification experience that must be taken into account when streamlining the legislation in the field of defense of Ukraine. As a result of the conducted research the tendencies and normative-legal features of each historical period of systematization of the military legislation on the Ukrainian lands are established. It was found that by the XVII century. The provisions of military law were only interspersed with acts of general law; the emergence of a regular army led to institutional systematization in the form of separate military statutes. The only sectoral-targeted systematization of military legislation took place in the form of incorporation and only after the systematization of general legislation through the publication of the Code of Military Resolutions of 1839, 1859, 1869. Systematization of military legislation of XX–XXI centuries covered an even larger area of military-administrative, military-service, military-combat, civil-military social relations, but the rudimentary influence of the Code of Military Resolutions is preserved in the military statutes and military-criminal acts of Ukraine. Sectoral systematization of military legislation in the form of codification (unified Military Code) or intersectoral - in the field of defense (unified National Defense Code) has no short-term prospects due to weak theoretical and legal and practical-applied development.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"29 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76445322","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.2020.4.06
Mykola Onishchuk
Purpose. The purpose of the article is to define the concept of “discretionary powers”, to formulate conclusions on the limits of discretionary powers of government authorities, to analyze the limits of judicial control over discretionary powers, the correlation between court procedural discretion and public administration discretion. Methods. The theoretical and methodological basis of the study are modern general scientific and special legal methods of scientific knowledge. The formal-logical method and the method of analysis and synthesis are used in the study of doctrinal provisions on the concept of “discretionary powers”. The method of comparative legal analysis is used in the study of foreign models of judicial control over the exercise of discretionary powers. Results. The article defines the concept of “discretionary powers”, considers the types of administrative discretion, approaches to the scope of judicial control over the implementation of discretionary powers in different European countries, givthe criteria for effective judicial control over the exercise of discretionary powers. Conclusions. The attribute of effective judicial protection against illegal activity in the exercise of discretionary powers is the issuance of a court decision that makes it impossible to re-apply to the administrative body or re-resolve the same issue. Based on this, it is concluded that in Ukraine it is appropriate to apply the model of full judicial control, and the recognition of the disputed decision as illegal with the obligation to re-adopt the administrative decision is contrary to the rule of law principle, except the situations when: – there was no real consideration of the issue as such (non-compliance with the decision-making procedure, decision-making by an inappropriate subject); – there is an exclusive competence of the relevant body to make a specific decision (assign a rank, military rank, etc.).
{"title":"ON THE ISSUE OF JUDICIAL CONTROL OVER THE DISCRETION OF THE AUTHORITY","authors":"Mykola Onishchuk","doi":"10.17721/2227-796x.2020.4.06","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.4.06","url":null,"abstract":"Purpose. The purpose of the article is to define the concept of “discretionary powers”, to formulate conclusions on the limits of discretionary powers of government authorities, to analyze the limits of judicial control over discretionary powers, the correlation between court procedural discretion and public administration discretion. Methods. The theoretical and methodological basis of the study are modern general scientific and special legal methods of scientific knowledge. The formal-logical method and the method of analysis and synthesis are used in the study of doctrinal provisions on the concept of “discretionary powers”. The method of comparative legal analysis is used in the study of foreign models of judicial control over the exercise of discretionary powers. Results. The article defines the concept of “discretionary powers”, considers the types of administrative discretion, approaches to the scope of judicial control over the implementation of discretionary powers in different European countries, givthe criteria for effective judicial control over the exercise of discretionary powers. Conclusions. The attribute of effective judicial protection against illegal activity in the exercise of discretionary powers is the issuance of a court decision that makes it impossible to re-apply to the administrative body or re-resolve the same issue. Based on this, it is concluded that in Ukraine it is appropriate to apply the model of full judicial control, and the recognition of the disputed decision as illegal with the obligation to re-adopt the administrative decision is contrary to the rule of law principle, except the situations when: – there was no real consideration of the issue as such (non-compliance with the decision-making procedure, decision-making by an inappropriate subject); – there is an exclusive competence of the relevant body to make a specific decision (assign a rank, military rank, etc.).","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"155 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77127627","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.2020.3.04
B. Schloer, K. Kravchenko
This article is devoted to the minors as a subject of law. The aim of the article is a comparative analysis of minors in different areas of law as well as age limits. The article focuses on Criminal Law, Administrative Law, Labour Law, Social Law, and Procedure Law. The article is based on a method of comparative analysis of German and Ukrainian domestic law. The results of the article are following. First, a criminal responsibility of minors in both German Law and Ukrainian Law is analyzed. The question of the age of the criminal majority remains one of the most controversial issues in the field of criminal law for minors. In Germany, the age of the criminal responsibility is fourteen years, while in Ukraine the age of the criminal responsibility is sixteen years. The provisions of Ukrainian Criminal Code on criminal responsibility of minors are outdated today. Those provisions should be changed. The same changes should be made in Administrative law of Ukraine concerning the minimum age limit of administrative responsibility. Second, the comparative analysis of Social law provisions concerning minors allowance in Germany and Ukraine shows considerable differences of the level of State security. Germany has generous systems of social welfare and offers a variety of allowances and benefits for minors. One of the most well-known of these is Kindergeld (also called a Child Benefit). This is an allowance from the German government to help defray some of the cost of raising children. It can run from €219 to €250 per child per month. While Ukraine offers only a lump sum birth payment in an amount of €1234. It is also one of the most complicated issues. Conclusions based on the results of comparative analysis. The authors suggest that the age limit in the area of criminal as well as administrative law of Ukraine should be reduced.
{"title":"MINORS AS SUBJECTS OF LAW: COMPARISON OF THE LEGAL REGULATION IN GERMANY AND UKRAINE (PART 2)","authors":"B. Schloer, K. Kravchenko","doi":"10.17721/2227-796x.2020.3.04","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.3.04","url":null,"abstract":"This article is devoted to the minors as a subject of law. The aim of the article is a comparative analysis of minors in different areas of law as well as age limits. The article focuses on Criminal Law, Administrative Law, Labour Law, Social Law, and Procedure Law. The article is based on a method of comparative analysis of German and Ukrainian domestic law. The results of the article are following. First, a criminal responsibility of minors in both German Law and Ukrainian Law is analyzed. The question of the age of the criminal majority remains one of the most controversial issues in the field of criminal law for minors. In Germany, the age of the criminal responsibility is fourteen years, while in Ukraine the age of the criminal responsibility is sixteen years. The provisions of Ukrainian Criminal Code on criminal responsibility of minors are outdated today. Those provisions should be changed. The same changes should be made in Administrative law of Ukraine concerning the minimum age limit of administrative responsibility. Second, the comparative analysis of Social law provisions concerning minors allowance in Germany and Ukraine shows considerable differences of the level of State security. Germany has generous systems of social welfare and offers a variety of allowances and benefits for minors. One of the most well-known of these is Kindergeld (also called a Child Benefit). This is an allowance from the German government to help defray some of the cost of raising children. It can run from €219 to €250 per child per month. While Ukraine offers only a lump sum birth payment in an amount of €1234. It is also one of the most complicated issues. Conclusions based on the results of comparative analysis. The authors suggest that the age limit in the area of criminal as well as administrative law of Ukraine should be reduced.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"10 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83268436","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.2020.1.05
Liliia Popova
The aim of the article is to investigate the peculiarities of administrative and legal regulation of the activities of business entities during quarantine and to consider possible directions of improvement of such regulation. Methods. The theoretical and methodological basis of the research is modern general scientific and special legal methods and techniques of scientific knowledge. The formal and logical method determines the importance of administrative and legal regulation of the activities of economic entities during quarantine. Formal and legal method allowed analyzing the current legislative and other normative-legal acts concerning administrative and legal regulation of activity of economic entities during quarantine. The structural and logical, comparative and legal methods outline the main directions of improving of implementation the administrative and legal regulation of the activities of economic entities during quarantine. Results. Attention is drawn to the fact that business entities are limited in their actions due to the introduction of quarantine and emergency regime in Ukraine. The article analyzes the legislative and other legal acts adopted to prevent the spread in Ukraine of acute respiratory disease COVID-19 caused by the coronavirus SARS-CoV-2, which regulate the activities of business entities. It is noted that the Government of the State, taking into account the important role of economic entities in the economy of the country, makes prudent measures to support them during quarantine. However, there are certain conditions under which business entities face problems that need to be addressed, primarily at the legislative level. Conclusions. The article indicates the expediency of amending the current legislation to harmonize it in connection with the adoption of a number of regulatory acts aimed at preventing the spread of acute COVID-19 respiratory disease caused by the SARS-CoV-2 coronavirus in Ukraine and use in the legislation of different terminology related to COVID-19.
{"title":"PECULIARITIES OF ADMINISTRATIVE AND LEGAL REGULATION OF BUSINESS ENTITIES ACTIVITIES DURING THE QUARANTINE IN UKRAINE","authors":"Liliia Popova","doi":"10.17721/2227-796x.2020.1.05","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.1.05","url":null,"abstract":"The aim of the article is to investigate the peculiarities of administrative and legal regulation of the activities of business entities during quarantine and to consider possible directions of improvement of such regulation. Methods. The theoretical and methodological basis of the research is modern general scientific and special legal methods and techniques of scientific knowledge. The formal and logical method determines the importance of administrative and legal regulation of the activities of economic entities during quarantine. Formal and legal method allowed analyzing the current legislative and other normative-legal acts concerning administrative and legal regulation of activity of economic entities during quarantine. The structural and logical, comparative and legal methods outline the main directions of improving of implementation the administrative and legal regulation of the activities of economic entities during quarantine. Results. Attention is drawn to the fact that business entities are limited in their actions due to the introduction of quarantine and emergency regime in Ukraine. The article analyzes the legislative and other legal acts adopted to prevent the spread in Ukraine of acute respiratory disease COVID-19 caused by the coronavirus SARS-CoV-2, which regulate the activities of business entities. It is noted that the Government of the State, taking into account the important role of economic entities in the economy of the country, makes prudent measures to support them during quarantine. However, there are certain conditions under which business entities face problems that need to be addressed, primarily at the legislative level. Conclusions. The article indicates the expediency of amending the current legislation to harmonize it in connection with the adoption of a number of regulatory acts aimed at preventing the spread of acute COVID-19 respiratory disease caused by the SARS-CoV-2 coronavirus in Ukraine and use in the legislation of different terminology related to COVID-19.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"6 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89067294","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.2020.4.07
Darijus Beinoravičius
The legislator, officials of the state apparatus and the lawyers – all those who face creation, application, and systematization of legal acts – are especially interested in the perfection of such technique. Thinking in legislation is the key element in a process in which the legislator – both legal (lawyer) and political – has to choose one of the many solutions that consolidate social compromise. Legislative technique in Lithuanian doctrine is interpreted in a narrow and a broad sense. This article proves the necessity for the purview of laws to be determined by needs of the society and not by the will of authorities; it also explains how the legislator should apply legal sociology for this purpose. Scientific methods of legal sociology in lawmaking have been introduced relatively recently. The impact of law on political authorities in the process of lawmaking is reflected in actual legally consolidated politics. As legal awareness – „the spirit of law“ – has a direct impact on political processes and determines establishment of procedures, therefore politics itself becomes a part of law. Herewith in political processes the law becomes dynamic and politics itself becomes entrenched in law. In this article interpreting the legislative technique in a broad sense, as a set of methods and means used in preparation, publication and systematization of legal acts, one of its goals should be distinguished – to improve the legislative process from a technical point of view. In Lithuania, it needs to be noted that the content of these requirements have undergone positive changes in quality with the changes of legal acts. In addition to general technical – linguistical requirements material content requirements have been set forth, constituting the scope of individual regulation, the relationship with other legal acts, the essential principles of public relations regulated, etc. At the same time, references to the source of official publication were abandoned, and all these changes lead to conclusion, that the legislative technique in this area has become simpler and clearer and it contributes to the development of better lawmaking.
{"title":"OPPORTUNITY OF RATIONAL LEGISLATOR IN PRACTICE: LITHUANIA","authors":"Darijus Beinoravičius","doi":"10.17721/2227-796x.2020.4.07","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.4.07","url":null,"abstract":"The legislator, officials of the state apparatus and the lawyers – all those who face creation, application, and systematization of legal acts – are especially interested in the perfection of such technique. Thinking in legislation is the key element in a process in which the legislator – both legal (lawyer) and political – has to choose one of the many solutions that consolidate social compromise. Legislative technique in Lithuanian doctrine is interpreted in a narrow and a broad sense. This article proves the necessity for the purview of laws to be determined by needs of the society and not by the will of authorities; it also explains how the legislator should apply legal sociology for this purpose. Scientific methods of legal sociology in lawmaking have been introduced relatively recently. The impact of law on political authorities in the process of lawmaking is reflected in actual legally consolidated politics. As legal awareness – „the spirit of law“ – has a direct impact on political processes and determines establishment of procedures, therefore politics itself becomes a part of law. Herewith in political processes the law becomes dynamic and politics itself becomes entrenched in law. In this article interpreting the legislative technique in a broad sense, as a set of methods and means used in preparation, publication and systematization of legal acts, one of its goals should be distinguished – to improve the legislative process from a technical point of view. In Lithuania, it needs to be noted that the content of these requirements have undergone positive changes in quality with the changes of legal acts. In addition to general technical – linguistical requirements material content requirements have been set forth, constituting the scope of individual regulation, the relationship with other legal acts, the essential principles of public relations regulated, etc. At the same time, references to the source of official publication were abandoned, and all these changes lead to conclusion, that the legislative technique in this area has become simpler and clearer and it contributes to the development of better lawmaking.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"28 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84633142","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.2020.1.08
J. Nematov
Judicial protection against individual and normative acts of the public administration continues to be problematic in Uzbekistan. One central reason for this mischief is the continuing prevalence of Soviet-style ideas and patterns in legal thinking as well as the legal practice. This article describes the problems of jurisdictions face when trying to overcome their Soviet heritage by developing legal protection in administrative matters, and analyses the strategies for the improvement of this situation. Key factors are a comprehensive and harmonised development of administrative procedure and administrative litigation in the field of legislation, and what might be termed a “constitutionalisation” of legal thinking, theory and teaching – i.e. the respect for values enshrined in Constitution such as the rule of law and access to judicial protection against the public administration – in the field of legal science. Uzbekistan is a good example how foreign partners and donors of international legal assistance can help strengthen these factors. This paper explores (1) to what extent Soviet thinking on judicial review over administrative acts has been set aside or to what extent is it still alive in today’s Uzbekistan, and (2) what are the transformation points of judicial review. Overall, I argue that Soviet thinking on judicial review over administrative acts has big change in legislation level under new regime of Uzbekistan, however legal reforms are not still accepted by legal practice, doctrine and legal education. To analyse these statements, the first step is to describe the main characteristics and legal reforms on judicial review over administrative acts taken in Soviet period (part II). Part III and IV analyses the current legal system and judicial practise of Uzbekistan. Lastly, I map out recent steps taken to introduce some reforms in the field of judicial review over administrative acts in Uzbekistan (part V).
{"title":"TRANSFORMATION OF SOVIET ADMINISTRATIVE LAW: UZBEKISTAN’S CASE STUDY IN JUDICIAL REVIEW OVER ADMINISTRATIVE ACTS","authors":"J. Nematov","doi":"10.17721/2227-796x.2020.1.08","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.1.08","url":null,"abstract":"Judicial protection against individual and normative acts of the public administration continues to be problematic in Uzbekistan. One central reason for this mischief is the continuing prevalence of Soviet-style ideas and patterns in legal thinking as well as the legal practice. This article describes the problems of jurisdictions face when trying to overcome their Soviet heritage by developing legal protection in administrative matters, and analyses the strategies for the improvement of this situation. Key factors are a comprehensive and harmonised development of administrative procedure and administrative litigation in the field of legislation, and what might be termed a “constitutionalisation” of legal thinking, theory and teaching – i.e. the respect for values enshrined in Constitution such as the rule of law and access to judicial protection against the public administration – in the field of legal science. Uzbekistan is a good example how foreign partners and donors of international legal assistance can help strengthen these factors. This paper explores (1) to what extent Soviet thinking on judicial review over administrative acts has been set aside or to what extent is it still alive in today’s Uzbekistan, and (2) what are the transformation points of judicial review. Overall, I argue that Soviet thinking on judicial review over administrative acts has big change in legislation level under new regime of Uzbekistan, however legal reforms are not still accepted by legal practice, doctrine and legal education. To analyse these statements, the first step is to describe the main characteristics and legal reforms on judicial review over administrative acts taken in Soviet period (part II). Part III and IV analyses the current legal system and judicial practise of Uzbekistan. Lastly, I map out recent steps taken to introduce some reforms in the field of judicial review over administrative acts in Uzbekistan (part V).","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"129 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76706947","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.2020.4.09
Viktor Branovytskiy
The purpose of the article is to clarify the peculiarities of the formation of citizens’ right to use natural objects of the ownership right of the people of Ukraine in the XX century. Methods. The research methodology consists of such methods of scientific cognition as: systematic and structural, historical and legal, comparative and legal, formal and legal, interpretation, deduction, induction, analysis, synthesis, etc. Results. The author studies in the section “Period of power changes on the territory of Ukraine” the peculiarities of the legal regulation of the rights to natural objects in the period from 1917 to 1920 and finds out that there was no single practice of regulating natural management relations at that time in Ukraine, since it changed depending on the region, the authorities whose sphere of influence extended to it and the year of issuance of the regulatory act. The author studies in the section “Soviet period” the specifics of the legal regulation of the rights to natural objects during Ukraine’s stay in the USSR and finds out that the only form of the ownership to all natural objects was state, the natural management concept was significantly developed, the mechanism of administrative and legal provision for the realization of citizens’ right to use natural objects of state property, an extensive system of legislation were formed. The author emphasizes in the section “Period of Sovereign Ukraine” how the approach to the regulation of the rights to natural objects was changed after Ukraine’s secession from the USSR, especially the ownership right of the people of Ukraine to natural resources and citizens’ rights to use them. Conclusions. The author indicates in the conclusions: when and which regulatory legal acts enshrined for the first time the people’s ownership to natural objects, citizens’ right to use natural objects of the ownership right of the people and the procedure to use them at the legislative level; main features of legal regulation of the rights to natural objects in the period from 1917 to 1920, the Soviet period and the period of sovereign Ukraine; the circumstances depending on guaranteeing this right. Finally, the author formulates a position according to which it is necessary to distinguish land plots and other objects that may be owned by others and those that constitute the exclusive ownership of the people due to their value and significance. Besides, the author emphasizes the need to get back to the method of normative and legal regulation of the rights to natural objects, which was used in 1990–1991, when the people of Ukraine were endowed with independent powers and had a real status of the owner to natural resources.
{"title":"SPECIFIC FEATURES OF THE FORMATION OF CITIZENS’ RIGHT TO USE NATURAL OBJECTS OF THE OWNERSHIP RIGHT OF THE PEOPLE OF UKRAINE IN THE XX CENTURY","authors":"Viktor Branovytskiy","doi":"10.17721/2227-796x.2020.4.09","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.4.09","url":null,"abstract":"The purpose of the article is to clarify the peculiarities of the formation of citizens’ right to use natural objects of the ownership right of the people of Ukraine in the XX century. Methods. The research methodology consists of such methods of scientific cognition as: systematic and structural, historical and legal, comparative and legal, formal and legal, interpretation, deduction, induction, analysis, synthesis, etc. Results. The author studies in the section “Period of power changes on the territory of Ukraine” the peculiarities of the legal regulation of the rights to natural objects in the period from 1917 to 1920 and finds out that there was no single practice of regulating natural management relations at that time in Ukraine, since it changed depending on the region, the authorities whose sphere of influence extended to it and the year of issuance of the regulatory act. The author studies in the section “Soviet period” the specifics of the legal regulation of the rights to natural objects during Ukraine’s stay in the USSR and finds out that the only form of the ownership to all natural objects was state, the natural management concept was significantly developed, the mechanism of administrative and legal provision for the realization of citizens’ right to use natural objects of state property, an extensive system of legislation were formed. The author emphasizes in the section “Period of Sovereign Ukraine” how the approach to the regulation of the rights to natural objects was changed after Ukraine’s secession from the USSR, especially the ownership right of the people of Ukraine to natural resources and citizens’ rights to use them. Conclusions. The author indicates in the conclusions: when and which regulatory legal acts enshrined for the first time the people’s ownership to natural objects, citizens’ right to use natural objects of the ownership right of the people and the procedure to use them at the legislative level; main features of legal regulation of the rights to natural objects in the period from 1917 to 1920, the Soviet period and the period of sovereign Ukraine; the circumstances depending on guaranteeing this right. Finally, the author formulates a position according to which it is necessary to distinguish land plots and other objects that may be owned by others and those that constitute the exclusive ownership of the people due to their value and significance. Besides, the author emphasizes the need to get back to the method of normative and legal regulation of the rights to natural objects, which was used in 1990–1991, when the people of Ukraine were endowed with independent powers and had a real status of the owner to natural resources.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"59 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84849389","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.2020.4.02
N. Chudyk
During the years of independence, Ukraine has undergone certain processes that have led tochanges in the relationship between government and society. These changes were not alwayspositive. State power had a high level of authority in the eyes of the Ukrainian people. The majorityof the population does not believe in the objectivity of the results of the people’s will, which, infact, stimulates interest and shows the importance of public control over the election process.The purpose of the article – is to study the correlation of the state and public control over thesuffrage of Ukraine and its influence on the formation and development of civil society.The methodological basis of the study were general scientific and special legal methods ofcognition. Among the general scientific methods used is the method of philosophical dialectics,which is revealed through the methods of analysis and synthesis, ascent from simple to complex,from abstract to concrete, modeling, abstraction, idealization and formalization.Despite the expansion of opportunities to influence the future of the country through the free willof the people, the importance and effectiveness of public control faces a number of obstacles. Forexample, the presence of underdeveloped civil society, the lack of a prescribed mechanism for publiccontrol, political indifference of citizens, the negative impact of bureaucratic manifestations – allthis and many other factors together have a negative impact on the development of civil societyand effective control for the election process. But a rather significant shortcoming in the way ofits development is the lack of scientific research on this issue.As a result of the research, it was found that through election procedures it is possible to bestbalance and reconcile the interests of political elites, social classes, groups of the whole society,to bring the government closer to the needs of the people. The public sector plays a positive role in the processes of stabilization and harmonization of relations in society and the electoral processin particular. Public control as a social phenomenon is impossible without the formation of afavorable environment for its full and effective functioning, ie without a developed civil society.The article concludes that election control can be effective only when it is carried out by anindependent third party, in our case – civil society in relation to public authorities and localgovernments, which are directly involved in ensuring the preparation and conduct of the electionprocess. Many years of international and national experience clearly show that the lack or lowlevel of public control over the electoral process and excessive state control ultimately lead tousurpation of power and falsification of election results.
{"title":"RELATIONSHIP BETWEEN STATE AND PUBLIC CONTROL OF THE ELECTION PROCESS IN UKRAINE","authors":"N. Chudyk","doi":"10.17721/2227-796x.2020.4.02","DOIUrl":"https://doi.org/10.17721/2227-796x.2020.4.02","url":null,"abstract":"During the years of independence, Ukraine has undergone certain processes that have led tochanges in the relationship between government and society. These changes were not alwayspositive. State power had a high level of authority in the eyes of the Ukrainian people. The majorityof the population does not believe in the objectivity of the results of the people’s will, which, infact, stimulates interest and shows the importance of public control over the election process.The purpose of the article – is to study the correlation of the state and public control over thesuffrage of Ukraine and its influence on the formation and development of civil society.The methodological basis of the study were general scientific and special legal methods ofcognition. Among the general scientific methods used is the method of philosophical dialectics,which is revealed through the methods of analysis and synthesis, ascent from simple to complex,from abstract to concrete, modeling, abstraction, idealization and formalization.Despite the expansion of opportunities to influence the future of the country through the free willof the people, the importance and effectiveness of public control faces a number of obstacles. Forexample, the presence of underdeveloped civil society, the lack of a prescribed mechanism for publiccontrol, political indifference of citizens, the negative impact of bureaucratic manifestations – allthis and many other factors together have a negative impact on the development of civil societyand effective control for the election process. But a rather significant shortcoming in the way ofits development is the lack of scientific research on this issue.As a result of the research, it was found that through election procedures it is possible to bestbalance and reconcile the interests of political elites, social classes, groups of the whole society,to bring the government closer to the needs of the people. The public sector plays a positive role in the processes of stabilization and harmonization of relations in society and the electoral processin particular. Public control as a social phenomenon is impossible without the formation of afavorable environment for its full and effective functioning, ie without a developed civil society.The article concludes that election control can be effective only when it is carried out by anindependent third party, in our case – civil society in relation to public authorities and localgovernments, which are directly involved in ensuring the preparation and conduct of the electionprocess. Many years of international and national experience clearly show that the lack or lowlevel of public control over the electoral process and excessive state control ultimately lead tousurpation of power and falsification of election results.","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"48 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81513095","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 : 2019-01-01DOI: 10.17721/2227-796x.2019.2.10
G. Tamburelli
The 2014 Association Agreement between the EU and Ukraine, which replaces the 1994 Partnership and Cooperation Agreement, may be considered the most important result of a cooperation developed since the beginning of 90’s, first in the framework of the European Neighbourhood Policy, then of the Eastern Partnership. This paper analyses in an essential way the evolving relations between the EU and Ukraine, and the progress made by Ukraine in pursuing the objectives set forth in the Association Agreement. The Author considers the main features of the Agreement, and identifies and assesses the principal legal issues arising from its implementation. The Agreement is aimed at deepening political and economic relations between the EU and Ukraine, and to gradually integrate Ukraine into the EU internal market. It is the first of a new generation of EU agreements characterized by comprehensiveness, and democratic conditionality. It requires a broad and detailed work of approximation of the Ukrainian laws to the EU regulations. Reforms are foreseen in a number of key areas. Ukraine has been developing a complex strategy to reorient its legal system towards the EU. According to the 2018 Report on Implementation of the Association Agreement – prepared by the Government Office for Coordination of European and Euro-Atlantic Integration, and the Vice Prime Minister’s Office for European and Euro-Atlantic Integration, based on the outcome of performance of the objectives scheduled for 2018, the Agreement was implemented by 52%. According to the Author, in evaluating the “results achieved” by Ukraine in the approximation of the national legislation to the EU legislation, it must be taken into account the challenging situation of the country. The Government and the Verkhovna Rada have been acting with the aim to pursue the overall objectives of the Association Agreement notwithstanding the difficult political and administrative situation following the events in Crimea, the Donbass conflict, the worsening of the relations with Russia until the termination of the Treaty of Friendship and the temporary adoption of the Martial Law. He highlights the efforts of the EU in financially supporting the process of reform in Ukraine, and of Ukraine towards constitutional and legislative reforms reinforcing the European choice. Ukraine has finally developed an ad hoc institutional framework, and new legislation, including amendments to the Constitution, for the implementation of the Association Agreement. Relevant progress has been made in various sectors of the cooperation, while in various others the actions taken are not yet effective. For example, in the sector of the rule of law, various actions were taken, but modest results were achieved in the fight against corruption; while in the environment sector, which is not considered among the priorities, the Law on EIA might be considered an important achievement. In the whole, the implementation of the Association Agreement w
{"title":"NOTES ON THE RELATIONS BETWEEN THE EU AND UKRAINE AND THE PROGRESS IN THE IMPLEMENTATION OF THE ASSOCIATION AGREEMENT","authors":"G. Tamburelli","doi":"10.17721/2227-796x.2019.2.10","DOIUrl":"https://doi.org/10.17721/2227-796x.2019.2.10","url":null,"abstract":"The 2014 Association Agreement between the EU and Ukraine, which replaces the 1994 Partnership and Cooperation Agreement, may be considered the most important result of a cooperation developed since the beginning of 90’s, first in the framework of the European Neighbourhood Policy, then of the Eastern Partnership. This paper analyses in an essential way the evolving relations between the EU and Ukraine, and the progress made by Ukraine in pursuing the objectives set forth in the Association Agreement. The Author considers the main features of the Agreement, and identifies and assesses the principal legal issues arising from its implementation. The Agreement is aimed at deepening political and economic relations between the EU and Ukraine, and to gradually integrate Ukraine into the EU internal market. It is the first of a new generation of EU agreements characterized by comprehensiveness, and democratic conditionality. It requires a broad and detailed work of approximation of the Ukrainian laws to the EU regulations. Reforms are foreseen in a number of key areas. Ukraine has been developing a complex strategy to reorient its legal system towards the EU. According to the 2018 Report on Implementation of the Association Agreement – prepared by the Government Office for Coordination of European and Euro-Atlantic Integration, and the Vice Prime Minister’s Office for European and Euro-Atlantic Integration, based on the outcome of performance of the objectives scheduled for 2018, the Agreement was implemented by 52%. According to the Author, in evaluating the “results achieved” by Ukraine in the approximation of the national legislation to the EU legislation, it must be taken into account the challenging situation of the country. The Government and the Verkhovna Rada have been acting with the aim to pursue the overall objectives of the Association Agreement notwithstanding the difficult political and administrative situation following the events in Crimea, the Donbass conflict, the worsening of the relations with Russia until the termination of the Treaty of Friendship and the temporary adoption of the Martial Law. He highlights the efforts of the EU in financially supporting the process of reform in Ukraine, and of Ukraine towards constitutional and legislative reforms reinforcing the European choice. Ukraine has finally developed an ad hoc institutional framework, and new legislation, including amendments to the Constitution, for the implementation of the Association Agreement. Relevant progress has been made in various sectors of the cooperation, while in various others the actions taken are not yet effective. For example, in the sector of the rule of law, various actions were taken, but modest results were achieved in the fight against corruption; while in the environment sector, which is not considered among the priorities, the Law on EIA might be considered an important achievement. In the whole, the implementation of the Association Agreement w","PeriodicalId":7222,"journal":{"name":"Administrative law and process","volume":"73 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76774656","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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