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The right to healthcare under the conditions of Transitional justice: the flamboyance and poverty of Ukrainian civics 过渡时期司法条件下的保健权:乌克兰公民的浮华和贫穷
Pub Date : 2023-10-10 DOI: 10.25040/medicallaw2023.02.040
V. M. Pashkov
It is clear that the right to health is primarily regulated by civil law, as a personal non-property right. However, the analysis of the state of this non-property benefit (including the content of the provision of this right in the Civil Code of Ukraine) shows that the current Civil Code of Ukraine in this part is declarative and does not meet the best examples of civil legislation of European states. This will be especially noticeable in the context of transitional justice. As a result, the saturation of the Civil Code with declarative articles would further create conditions for filling the said provisions with meaningless comments from Ukrainian scholars. This may become a problem in all branches of law. As a result, neither judges, nor lawyers can use the work of Ukrainian scholars in their activity. That is the reason why it could be interrogated of whether the right to health can be ensured by the modern Ukrainian Civil Code.
很明显,健康权作为一种个人非财产权利,主要是由民法规定的。然而,分析这一非财产利益的状态(包括乌克兰民法典对这一权利的规定内容)表明,现行的乌克兰民法典在这部分是声明性的,不符合欧洲国家民事立法的最佳范例。这在过渡时期司法的背景下将特别明显。因此,《民法典》充斥着声明性条款,将进一步为乌克兰学者毫无意义的评论填满上述条款创造条件。这可能成为所有法律部门的一个问题。因此,法官和律师都不能在其活动中使用乌克兰学者的工作成果。这就是为什么可以质疑现代乌克兰民法典是否能够保障健康权的原因。
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 This may become a problem in all branches of law. As a result, neither judges, nor lawyers can use the work of Ukrainian scholars in their activity. That is the reason why it could be interrogated of whether the right to health can be ensured by the modern Ukrainian Civil Code.","PeriodicalId":91928,"journal":{"name":"Medychne pravo","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135043716","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}
引用次数: 0
The abuse of patentability conditions in the sphere of pharmacy in Ukraine and the EpO: upon the Example of polymorph sofosbuvir 滥用可专利性条件在制药领域在乌克兰和欧洲专利局:在多形索非布韦的例子
Pub Date : 2023-10-10 DOI: 10.25040/medicallaw2023.02.023
S. V. Kondratiuk
The author analyzed regulation of the patenting of polymorphs for medicinal products in Ukraine, the European Patent Office, and in countries with stringent application of patentability criteria in pharmaceutical field (Argentina and India). The author described the analysis of the decisions of the Ukrainian patent office and the Appeals Chamber of the Ministry of Economic Development and Trade concerning the refusal of issuing a patent for the polymorph of sofosbuvir, and the impact of this judgment on access of sofosbuvir for the Ukraine’s population. The author also conducted a brief comparative analysis of Ukraine with the approach of the European Patent Office as opposed to «stringent» patent offices and IGOs patentability guidelines regarding the patenting of polymorphs. It is proposed that polymorphs should be excluded from patentability in Ukraine in order to prevent the abuse of patentability conditions by the industry using polymorphs of known chemicals. Such changes should be introduced either by more precise wording in the patent law in order to correct the deficiencies regarding new forms of known medicines in the Article 7(7) of the Law of Ukraine «On Protection of Inventions and Utility Models» or by introducing relevant provisions by development of patentability guidelines for pharmaceuticals on a sub-legislative level.
作者分析了乌克兰、欧洲专利局以及在制药领域严格适用可专利性标准的国家(阿根廷和印度)对药品多晶型专利的监管。提交人描述了对乌克兰专利局和经济发展和贸易部上诉分庭关于拒绝颁发索非布韦多形态专利的决定的分析,以及这一判决对乌克兰人民获得索非布韦的影响。作者还对乌克兰与欧洲专利局的方法进行了简要的比较分析,而不是“严格”专利局和政府间组织关于多态专利的可专利性指南。建议将多晶型排除在乌克兰的可专利性之外,以防止使用已知化学品多晶型的行业滥用可专利性条件。这些变化应该通过在专利法中更精确的措辞来引入,以纠正乌克兰“关于保护发明和实用新型”的法律第7(7)条中关于已知药物新形式的缺陷,或者通过在次级立法层面制定药品可专利性指南来引入相关规定。
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引用次数: 0
A «Tacit Consent» to Transplantation: to be оr Not to be 对移植的“默认同意”:被允许或不允许
Pub Date : 2023-10-10 DOI: 10.25040/medicallaw2023.02.055
Kh. Ya. Tereshko
Regulatory collisions and lacunae in the legal regulation of transplantation are highlighted. The analysis was carried out and improvement of normative acts in the outlined area was proposed. The possibility of implementing the principle of tacit consent to transplantation was investigated. The practice of the European Court of Human Rights in the field of application of transplantation is analyzed. The principle of tacit consent provides for the possibility of using any biological materials from the body of a deceased person, if the latter did not testify to their disagreement during their lifetime or the relatives of the deceased person did not make any statements regarding the prohibition of removing organs and tissues from the body of the deceased. The main idea of applying this principle in this area is to reduce the amount of time it takes to obtain the consent of the donor's relatives and, accordingly, to carry out a higher­ quality transplant to the recipient with the use of a smaller number of means to maintain the activity of this or that organ. The introduction of the principle of tacit consent in any country requires: firstly, a clear regulation, and secondly, it must be correlated not only with the domestic legislation of such a country, but also with international treaties ratified by this country in order to avoid misunderstandings and new precedents for the practice of the European Court of Human Rights.
强调了移植法律规制中的规制冲突和空白。并对上述领域的规范性行为进行了分析,提出了完善的建议。探讨了实施移植默许原则的可能性。分析了欧洲人权法院在移植适用领域的实践。 默许原则规定,如果死者生前没有证明他们不同意,或者死者亲属没有就禁止从死者身上摘取器官和组织作出任何声明,则可以使用死者尸体上的任何生物材料。在这一领域应用这一原则的主要思想是减少征得捐赠者亲属同意所需的时间,从而使用更少的手段对接受者进行更高质量的移植,以保持这个或那个器官的活性。默许原则在任何一个国家的引入,首先需要有一个明确的规定,其次不仅要与该国的国内立法相联系,而且要与该国批准的国际条约相联系,以免给欧洲人权法院的实践带来误解和新的先例。
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 The principle of tacit consent provides for the possibility of using any biological materials from the body of a deceased person, if the latter did not testify to their disagreement during their lifetime or the relatives of the deceased person did not make any statements regarding the prohibition of removing organs and tissues from the body of the deceased. The main idea of applying this principle in this area is to reduce the amount of time it takes to obtain the consent of the donor's relatives and, accordingly, to carry out a higher­ quality transplant to the recipient with the use of a smaller number of means to maintain the activity of this or that organ.
 The introduction of the principle of tacit consent in any country requires: firstly, a clear regulation, and secondly, it must be correlated not only with the domestic legislation of such a country, but also with international treaties ratified by this country in order to avoid misunderstandings and new precedents for the practice of the European Court of Human Rights.","PeriodicalId":91928,"journal":{"name":"Medychne pravo","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135043714","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}
引用次数: 0
How the supervisory board was replaced by a monitoring board in the Healthcare unit 医疗保健部门的监事会是如何被监督委员会取代的
Pub Date : 2023-10-10 DOI: 10.25040/medicallaw2023.02.047
I. A. Selivanova
As a result of the simultaneous implementation of medical reform and corporate governance reform in Ukraine in the state and communal sectors of the economy, supervisory and supervisory boards appeared in medical enterprises. However, in 2022, supervisory boards were replaced by supervisory boards in the Fundamentals of Health Care Legislation. In order to consolidate this strange novel, the Ministry of Health of Ukraine prepared and presented for public discussion a draft resolution of the Cabinet of Ministers of Ukraine «On the supervisory board of a health care institution». In the article, based on the analysis of the current and prospective legislation of Ukraine, scientific and practical publications and court practice, the conclusion about the different legal nature, purpose of activity, procedure of formation and competence of the supervisory board and the supervisory board is substantiated, and the illegality of replacing supervisory boards with supervisory boards is proven. The author substantiates the conclusion that the promotion of the idea of a special status of supervisory boards in health care institutions is carried out by the Ministry of Health of Ukraine with the aim of creating a collegial body to control the activities of the executive body of health care institutions of the director (directorate, board) that provide specialized medical assistance However, the means by which such a goal is achieved do not meet the requirements of the law.
由于乌克兰在国家和公共经济部门同时实施医疗改革和公司治理改革,医疗企业出现了监督和监事会。然而,在2022年,监事会被《保健立法基础》中的监事会所取代。为了巩固这一奇怪的小说,乌克兰卫生部编写并提交了一份乌克兰内阁部长决议草案,供公众讨论"关于保健机构的监督委员会"。本文通过对乌克兰现行和未来立法、科学和实践出版物以及法院实践的分析,论证了监事会和监事会的法律性质、活动目的、组成程序和职权的不同,证明了监事会与监事会的非法性。提交人证实了其结论,即乌克兰卫生部正在推动保健机构中监督委员会具有特殊地位的想法,目的是建立一个合议机构,以控制提供专门医疗援助的保健机构执行机构主任(理事会、董事会)的活动。然而,实现这一目标的手段不符合法律的要求。
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 In the article, based on the analysis of the current and prospective legislation of Ukraine, scientific and practical publications and court practice, the conclusion about the different legal nature, purpose of activity, procedure of formation and competence of the supervisory board and the supervisory board is substantiated, and the illegality of replacing supervisory boards with supervisory boards is proven. The author substantiates the conclusion that the promotion of the idea of a special status of supervisory boards in health care institutions is carried out by the Ministry of Health of Ukraine with the aim of creating a collegial body to control the activities of the executive body of health care institutions of the director (directorate, board) that provide specialized medical assistance However, the means by which such a goal is achieved do not meet the requirements of the law.","PeriodicalId":91928,"journal":{"name":"Medychne pravo","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135043713","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}
引用次数: 0
The fulfillment of reproductive rights in Ukraine: balancing the EU standards and the challenges of the war 乌克兰生殖权利的实现:欧盟标准与战争挑战的平衡
Pub Date : 2023-10-10 DOI: 10.25040/medicallaw2023.02.009
O. Y. Kashyntseva, O. Y. Pokalchuk
The article discusses the importance of ensuring reproductive rights in Ukraine, particularly amidst the challenges posed by war and the need to align with EU standards. The authors emphasize the crucial role of reproduction and bioethics in protecting human life and dignity during armed conflicts. The article underscores the importance of upholding international legal principles and conventions related to reproductive rights and healthcare, including informed consent, non-discrimination, and the protection of privacy and confidentiality. Ukraine's progress towards aligning its national legislation with the EU, as part of its efforts to acquire candidate country status, is also highlighted.
本文讨论了确保乌克兰生殖权利的重要性,特别是在战争带来的挑战和与欧盟标准保持一致的必要性中。作者强调了生殖和生物伦理在武装冲突期间保护人类生命和尊严方面的关键作用。该条强调必须坚持与生殖权利和保健有关的国际法原则和公约,包括知情同意、不歧视以及保护隐私和保密。乌克兰在使其国家立法与欧盟保持一致方面取得的进展,作为其获得候选国地位的努力的一部分,也得到了强调。
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引用次数: 0
The Right to Timely Medical Care: Mechanism of Implementation 及时医疗权:实施机制
Pub Date : 2023-03-24 DOI: 10.25040/medicallaw2023.01.043
The content of the right to timely medical care is highlighted in this article. An analysis of the national legislation in the field of timeliness of emergency, primary, and specialized medical care was carried out and its comparison was made with international standards in the specified field, as well as with the doctrinal understanding of the timeliness of medical care. While emergency medical care is built on the principle of continuity and the maximum terms for receiving this type of medical care are established, primary and specialized medical care require legislative revision with regards to establishing the maximum terms for receiving primary and specialized medical care, ensuring the continuity of primary medical care, in particular on weekends, public holidays, non-working days. The legislator should pay special attention to ensuring the timeliness of specialized medical care upon referral, as well as the patient’s right to information about the possibility of receiving timely medical care in healthcare institutions. Other deficiencies in the legal regu- lation of the right to timely medical care are identified and ways to overcome this problem are proposed.
这篇文章强调了及时医疗权的内容。对紧急、初级和专门医疗保健及时性领域的国家立法进行了分析,并将其与特定领域的国际标准以及对医疗保健及时性的理论理解进行了比较。虽然紧急医疗是建立在连续性原则基础上的,并确定了接受这类医疗的最高期限,但初级和专门医疗需要对立法进行修订,以确定接受初级和专业医疗的最高条件,确保初级医疗的连续性,特别是在周末,公共假日、非工作日。立法者应特别注意确保转诊时专业医疗的及时性,以及患者在医疗机构获得及时医疗的可能性信息的权利。指出了及时医疗权法律法规中的其他不足,并提出了克服这一问题的方法。
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引用次数: 0
Facilitation by Healthcare Professionals in Obtaining Free Legal Aid for Children Victims of Domestic Violence: Legal Principles and Problematic Aspects 医疗保健专业人员协助家庭暴力受害儿童获得免费法律援助:法律原则和问题方面
Pub Date : 2023-03-24 DOI: 10.25040/medicallaw2023.01.030
L. L. Hretchenko
The purpose of the article is to determine the legal status of a healthcare professional as a subject of assistance to children who are the victims of domestic violence in accessing free legal aid. The study aims at revealing the issues of practical realization of the child's right to health care in connection with the right to access to free legal aid and the right to protect a child from all forms of violence and abusive treatment. As a result of monitoring the legislative regulation and statistics on cases related to domestic violence, the study revealed a lack of coordination between certain provisions of specialized laws and regulations, as well as a variety of statistics and reports. This makes it difficult to provide a generalized description of the state of access to free legal aid for children victims of domestic violence, in particular with the assistance of medical professionals.
该条款的目的是确定医疗保健专业人员作为家庭暴力受害者儿童获得免费法律援助的援助对象的法律地位。这项研究的目的是揭示在获得免费法律援助的权利和保护儿童免受一切形式暴力和虐待的权利方面切实实现儿童保健权的问题。由于监测了有关家庭暴力案件的立法条例和统计数据,研究表明,专门法律和条例的某些条款以及各种统计数据和报告之间缺乏协调。这使得很难概括描述家庭暴力受害儿童获得免费法律援助的情况,特别是在医疗专业人员的协助下。
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引用次数: 0
Taxation of Transactions for the Provision of Health Care Services by Health Care Institutions: Question of Theory and Practice 对医疗机构提供医疗服务交易征税的理论与实践问题
Pub Date : 2023-03-24 DOI: 10.25040/medicallaw2023.01.058
O. V. Yurchuk
In Ukraine, the obligation to pay taxes and fees in the manner and amounts established by law is constitutionally established, and it is determined that the taxation system is established exclusively through the adoption of relevant laws. The article highlights the main aspects of taxation and exemption from taxation of operations for the provision of health care services by health care institutions. The procedure for taxation with value added tax on operations for the supply of health care services by health care institutions has been disclosed. The publication contains an overview of the main provisions of the normative legal acts regarding the exemption from taxation of operations for the supply of health care services by health care institutions. The conditions under which the Tax Code of Ukraine exempts from taxation transactions for the supply of health care services by health care institutions are highlighted. An analysis of judicial practice was carried out regarding the application of subsection 197.1.5 of clause 197.1 of article 197 of the Tax Code of Ukraine.
在乌克兰,按法律规定的方式和数额缴纳税款和费用的义务是宪法规定的,并确定税收制度完全是通过通过有关法律来建立的。这篇文章强调了保健机构提供保健服务的业务征税和免税的主要方面。公布了对保健机构提供保健服务的业务征收增值税的程序。该出版物概述了关于保健机构提供保健服务的业务免税的规范性法律行为的主要规定。重点介绍了《乌克兰税法》免除保健机构提供保健服务的税收交易的条件。对《乌克兰税法》第197条第197.1款第197.1.5款的适用情况进行了司法实践分析。
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引用次数: 0
Вasics of Professional Interaction of Doctors: Cases of Combination and Separation В医生专业互动的基础:合并和分离的案例
Pub Date : 2023-03-24 DOI: 10.25040/medicallaw2023.01.009
Y. Babenko
On the basis of international and national normative acts, the ethical norms of interaction of doctors with each other are highlighted. The limits of intervention in the process of providing medical care to the patient by the attending physician and cases of involvement of other specialists in the treat- ment process are analyzed. The cases of the necessity of convening a doctor’s council in the provision of a specific type of medical care are considered on the example of the provisions of normative legal acts. It has been established: the timely detection of medical errors and criticism of the doctor’s actions in the correct form gives a positive result for achieving an effective health care system and establishing the principle of priority provision of the patient’s right to protection of life and health; remarks and assessment of another doctor’s actions should not have the purpose of belittling his work or luring patients; frank neglect of one’s duties, unscrupulous and poor-quality provision of medical care to the patient must be recorded and stopped, including by fel- low
在国际和国家规范性法案的基础上,强调了医生之间互动的伦理规范。分析了主治医师在为患者提供医疗护理过程中的干预限制以及其他专家参与治疗过程的情况。以规范性法律法规的规定为例,审议了在提供特定类型的医疗服务时需要召开医生委员会的情况。它已经确立:及时发现医疗错误并以正确的形式批评医生的行为,为建立有效的医疗保健系统和确立优先保障患者生命和健康权利的原则带来了积极的结果;对另一名医生行为的评论和评估不应以贬低其工作或引诱患者为目的;必须记录并制止公然玩忽职守、肆无忌惮和质量低劣地为病人提供医疗服务的行为,包括fel-low
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引用次数: 0
Individual Approach аnd Standards in the Sphere оf Healthcare 医疗保健领域的个人方法和标准
Pub Date : 2023-03-24 DOI: 10.25040/medicallaw2023.01.052
O. V. Khudoshyna
The author illustrates the necessity of creating a patient-oriented healthcare system, presupposing an individual patient treatment approach with a choice and the observance of the standard of providing assistance. The individual approach to the patient is based on an integrated and coordinated approach to the analysis of the occurrence and course of the disease for each patient. The main criteria of a personal approach are the development of personalized treatment methods in compliance with health care standards, prevention and combination of diagnosis and treatment, followed by treatment monitoring. An individual approach makes it possible to predict which treatment methods will be safe and effective for each patient, and which will not. It can be seen as an extension of traditional approaches to understanding and treating diseases, enabling doctors to choose a therapy or treatment protocol that can not only minimize side effects, but also ensure a more successful treatment outcome. The author has analyzed different approaches for the standardization and hallmarked the advantages and disadvantages of the individual approach of treating each patient. The author has outlined the main directions of the individual approach of patient treatment.
作者阐述了建立一个以患者为导向的医疗保健系统的必要性,为个人患者的治疗方法提供了选择,并遵守了提供援助的标准。对患者的个体治疗方法是基于对每个患者的疾病发生和病程进行综合和协调分析的方法。个人方法的主要标准是制定符合卫生保健标准的个性化治疗方法,预防和诊断与治疗相结合,然后是治疗监测。个体化的方法可以预测哪些治疗方法对每个患者都是安全有效的,哪些不会。它可以被视为理解和治疗疾病的传统方法的延伸,使医生能够选择一种不仅可以最大限度地减少副作用,而且可以确保更成功的治疗结果的治疗或治疗方案。作者分析了不同的标准化方法,并指出了治疗每个患者的个体方法的优点和缺点。作者概述了患者个体化治疗的主要方向。
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引用次数: 0
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Medychne pravo
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