PDF: Full Issue: Law.UA. 2019. №3 (ukrainian)
THEORY, HISTORY OF THE STATE AND LAW, CONSTITUTIONAL RIGHT
SYNERGETICS OF LEGAL ABSURDITY IN THE FIELD OF LAND REFORMS
Earth is given to people on the basis of natural law and can not be a commodity, because it is not established commodity producer and can not have a cost. It is like freedom and can not be lost or sold. The Earth is in unity with nature, natural in minerals, and its possible privatization by international corporations does not guarantee the possibility of crushing exploitation of its subsoil and other resources. Land-a unique treasure of the entire society, which can be not only a means of organizing land economy, but also a certain guarantor of sovereignty of the State and the will of the people.
GENESIS OF THE DOCTRINE OF JUSTICE AS A SOCIAL PHENOMENON
TRANSFORMATION OF THE STANDARDS OF JUDICIARY AND THE JUDICIARY IN UKRAINE OF THE X-XIII CENTURIES.
THE CONCEPT OF JUDICIAL DISCRETION AS AN ELEMENT OF COURT LAW ENFORCEMENT: THEORETICAL AND LEGAL ASPECT
It is emphasized that the increase of the efficiency and role of judicial authorities in the proper functioning of society as a whole and its separate subjects, in particular, is directly interrelated with the quality of court decisions. The impossibility, and the main inappropriateness, of all-purpose prescription in the normative and legal acts of the behavior of subjects of law in different life situations is solved by making decisions at their discretion by various subjects of power, in particular by the judiciary corps, thereby implementing the discretionary powers provided for by law.
It is accentuated that the emergence of judicial discretion as a legal phenomenon dates back to the ancient times and is proportionally related to the emergence of the institute of justice. Despite the normative attachment and use of the term “judicial discretion” in the literature for quite a long time, its repeated mentioning and interpretation in decisions of various instances of the judiciary, the content of this term remains controversial.
It is noted that the analysis of encyclopedias and scientifi c sources regarding the relation between the categories of discretion and judgement of public authorities indicates their identity. The study of foreign and domestic scientifi c doctrine regarding the understanding of the discretion of public authorities has given rise to the following approaches in this direction: 1) discretion as a measure of freedom; 2) discretion as a separate activity; 3) discretion as a way of deciding without regard to the will of other subjects; 4) discretion as a power provided by law, etc.
It is emphasized that judicial discretion is a mandatory instrument for the effective law enforcement of the court. The existence of judicial discretion is due to objective (impossibility to clearly resolve all possible life situations, the dynamism of social relations, the need for operative solution of the case, etc.) and subjective (imperfection of the current legislation, gaps in law, etc.) factors.
SUBJECTS OF IMPLEMENTATION OF THE PRINCIPLE OF PUBLICITY AND OPENNESS OF THE ACTIVITY OF JUDICIAL AUTHORITIES
It has been substantiated that the realization of publicity and openness as a constitutional basis of justice is carried out within the judicial stages of the legal enforcement process. The principle of publicity and openness has already been integrated into the procedure established by procedural law for court cases.
It is proposed to divide the subjects of implementation of the principle of publicity and openness of the activity of the judiciary into two groups: subjects empowered by the state with special powers (public authorities, state organizations and institutions); entities of direct implementation (individuals and legal entities, non-governmental institutions, enterprises, organizations, civil society institutions, etc.). The implementation of the principle of publicity and openness of the activity of the judiciary is connected with ensuring the proper communication of all the above entities.
It has been proved that courts and the media are the leading subjects in the implementation of the principle of publicity and openness of the activity of judicial authorities. The right of participants in a lawsuit to information is protected and enforced by procedural law, which provides for their unhindered access to any information about a case and establishes the right to appeal a court decision taken without observing the principle of transparency and openness.
The issue of public control over the activities of judicial bodies is one of the complex components of ensuring their publicity and openness, accountability and accountability.
CURRENT ISSUE REGARDING THE PROCEDURE OF INVOLVING A TRANSLATOR TO PARTICIPATE IN CRIMINAL PROCEEDINGS
The author concludes that this is a problematic issue in Ukraine today, and as the proposal has to be offset by the involvement of both bilinguals – ethnic speakers of such languages in translation of criminal proceedings – it is sufficient to speak both ethnic and Ukrainian.
The author proposes to determine the competence of the court interpreter to the contrary, namely, because of possible violations of sectoral procedural law, which do not contradict him with other normative legal acts of Ukraine, admitted by the employees of investigative bodies, inquiries or court system with the participation or concerning the translator.
NORMATIVE AND LEGAL PRINCIPLES OF ACTIVITY OF LAW ENFORCEMENT BODIES OF THE USSR IN THE 20S OF THE XX CENTURY.
OPTIMIZATION OF EVALUATION CRITERIA DURING CONTROL BY THE SUPREME COUNCIL OF JUSTICE OVER THE ACTIVITIES OF JUDGES (JUDGES)
It is established that the key areas of optimization of evaluation criteria during the exercise of control by the High Council of Justice are:, to prompt a breach of the relevant disciplinary or incompatibility proceedings within a short time; 2) establishment of a non- exhaustive list of disciplinary offenses, which must necessarily lead to the release of a person as a measure of disciplinary responsibility; 3) the obligation to take into account the findings of the High Council of Justice, the Supreme Court (whose decision modified or overturned the decision of the High Council of Justice) in resolving the merits (review) of future cases in similar circumstances by the disciplinary chamber of the High Council of Justice, and by the Council itself, unity and uniformity of disciplinary practice of control; withdrawal from this basis shall be allowed in exceptional cases, with the obligatory justification of the reasons for such decision of the disciplinary body; 4) to formulate in the findings of the High Council of Justice, the Supreme Court, the circumstances of the offense, which impose or mitigate the liability of the perpetrator, their inexhaustible list, the logic of use and the systematic connection with the judge’s behavior.
TORTURE OF PRISONERS IN ORDER TO OBTAIN ILLEGAL BENEFITS BY THE ADMINISTRATION OF PLACES OF LIBERTY: HISTORICAL AND LEGAL ASPECTS
It has been concluded that the torture of prisoners for the purpose of unduly benefi ting the prison administration is an unlawful social phenomenon that involves the intentional acts aimed at causing the prisoner severe pain or physical or moral suffering by beating, torturing or other violent acts, as well as the organization of such actions in order to compel the prisoner to transfer goods (property, tangible and intangible services); irrespective whether the action is taken personally or through mediators; it contradicts the legitimate interests of prisoners, the state and society and is spatially limited by the boundaries of a prison.
BUKIN M.P., STOLBA V.A.
ADMINISTRATIVE AND LEGAL PRINCIPLES OF THE NATIONAL POLICE ACTIVITY REGARDING THE PROVISION OF PUBLIC SERVICES
CRIMINAL LAW, CRIMINAL PROCESS AND CRIMINAL SCIENCE
AVDYEYEV O.O., SHEVELEV K.YE.
SCIENTIFIC AND CONTENT COMPONENTS OF MODERN JUVENIAL VICTIMOLOGY
This article attempts to uncover the root causes of corruption in public procurement, which until recently was perhaps the most shadowy system in our country, one of the fi rst to be properly regulated. The author concludes that corruption is a social phenomenon, where the human factor is its root cause. It is revealed that the main part of such violations is the result of deliberate and deliberate actions on the part of the persons who have announced the tenders, due to the presence of undue interests in them about the subject of auction or competition.
The legislative consolidation of the list of principles that should be ensured during the procurement is defined. Based on this provision, transparency is one of the principles. Transparency in public procurement means informing the market about planned and concluded contracts, publication of the regulatory framework, detailed recommendations, methods and standards for procurement procedures.
It is argued that one of the most important areas of combating corruption in the procurement of goods, works and services is to improve national legislation by creating clearly predictable rules, simple conditions for participation in procedures, a clear division of responsibilities between institutions, experts, and controllers. offi cials make ill-founded or unlawful decisions about procurement, works or services and thus reduce the risk of corruption.
SOCIO-ECONOMIC AND POLITICAL AND LEGAL BACKGROUND OF CRIMINAL RADICALISM
The position of practitioners largely explains the nature of the phenomenon of the researched phenomenon and confirms the author’s own generalizations. Thus, a comparison of the results of monitoring studies showed that the tensions in the country are chronic. Almost every second respondent noted that he or she experienced tension and irritation (in the last three years this indicator ranged from 41% to 48%); about 13% of those polled said they experienced fear and anxiety (13%).
It is fear that has become one of the motivating factors of everyday consciousness. Besides, lack of income security, the constant threat to well-being, the expectation of unforeseen consequences, the feeling of insecurity, damage to one’s social status, financial and job status, shame, the feeling of injusticefrom everything that happens, the realization that one cannot live on like this and at the same time complete helplessness provoked the emergence of a state of frustration, gave rise to social depression, apathy, despair, pessimism, loss of meaning of life as a result of unjustified expectations, unfulfilled hopes, unfulfilled promises. Monitoring studies have demonstrated an increase in the total proportion of respondents who are “impaired” (from 8% to 21% in the period from 2013 to 2019). 9% of Ukrainians have a persistent poor social well-being sense that can be easily interpreted as depression. On this basis, the socio-economic, political and legal background of criminal radicalism is assessed as problematic and in need that requires target-oriented influence.
PROCEDURAL GROUNDS FOR INVOLVING THE DEFENDANT IN CRIMINAL PROCEEDINGS
Various scientific opinions of different scholars and scientific schools engaged in the specified areas in relation to the investigated issues and materials of law enforcement practice are analyzed, which results in the author’s own scientific views. The study and analysis of the European Court of Human Rights practice as well as the expediency of initiating its decisions into the practice of law enforcement agencies and national courts are researched.
On the basis of the study, specific suggestions and recommendations have been provided to improve certain provisions of the criminal procedure legislation of Ukraine and practice in this area of investigatory bodies of pre-trial investigation, procedure heads in criminal proceedings of the prosecutor’s office, investigators and judges ofjudicial bodies on investigated issues. According to the author’s scientific opinion, the proposals and recommendations can help increase the efficiency of initiation and implementation the right to protect all participants in criminal proceedings at different stages of the criminal process.
USE OF SPECIAL KNOWLEDGE DURING INVESTIGATION OF CRIMES IN THE FIELD OF OFFICIAL ACTIVITY
Most crimes in the sphere of service activity are committed by officers using their position, influence, relationships and so on. Moreover, a large proportion of these crimes aimed at acquisition of some material possessions. Accordingly, a large amount of trace pattern will be reflected in all sorts of documents, including accounting and financial reporting. In addition, methods of committing outlined crimes are implemented through various business transactions. And, therefore, the investigator need expert help on economic issues. Because without such help the criminal proceedings will be ineffective.
In this regard the article reveals the meaning of special knowledge. The necessity of using special economic knowledge in the investigation of crimes related to service activity is substantiated. The basic forms of using specialized knowledge in economics during the preliminary investigation of outlined crimes are highlighted.
Crimes in the sphere of office activity in the vast majority do officials using their position, influence, relationships, and others like that. Moreover, a large proportion of these crimes are aimed at mastering certain material conditions. In accordance, a significant array of trace pattern will be reflected in various documentation, including accounting and financial reporting. In addition, the methods of committing these crimes was being realized through different economic operations. So, the investigator need expert help on economic issues. Because without it the criminal proceedings will be ineffective, and in some cases may need to come to a standstill.
VICTIMOLOGICAL MEASURES TO PREVENT SEXUAL EXPLOITATION OF A CHILD
Accelerating the processes of European integration of Ukraine requires the introduction into law enforcement practice not only of modern forms and methods of combating crime, but also of standards recognized by the world community for the protection of human rights and freedoms. Real democratic transformations are integral to the humanization of social relations, for a person, his life and health, honor and dignity, integrity and security are recognized as the highest social value.
Victimological measures for the prevention of sexual exploitation of children should be comprehensive and systematic. This is where their effectiveness depends. If, however, the child is a victim of sexual exploitation, every effort should be made to end the unlawful activity, to protect her rights and to provide the necessary medical, psychological, material and other assistance, which in turn can be considered as a component of victim prevention. sexual exploitation of children, as such measures reduce the likelihood of repeated sexual abuse of such persons in the future.
The conducted research made it possible to identify measures of victimology prevention of sexual exploitation conducted by bodies of the National Police of Ukraine in cooperation with other authorized entities, as well as international and non-governmental organizations, representatives of the public: analytical and preparatory measures of victimological prevention; information and education activities, including the use of media opportunities, which are carried out personally by employees of various law enforcement agencies, as well as representatives of other state and local authorities, international and non-governmental organizations; preventive work in groups with increased levels of victimization regarding the prevention of sexual exploitation; organization and support of hotlines to advise persons who may be victims of sexual exploitation and victims of sexual exploitation, to provide them with advice and practical assistance in avoiding such cases in the future; improvement of the basics of state policy in the sphere of victimization of sexual exploitation, participation in the development of relevant drafts of international treaties, laws and regulations; development of tactics and strategies for victimization of sexual exploitation at the regional, national and international levels. Such work is carried out in cooperation with foreign colleagues and international organizations.
IMMUNITY OF PRIESTS IN CRIMINAL PROCEEDINGS
LEGAL REGULATION OF JUDICIAL EXPERT ACTIVITIES IN UKRAINE: CERTAIN THEORETICAL AND LEGAL PROBLEMS
DETERMINANTS THAT PROMOTE CRIMES BY PATROL POLICE OFFICERS OF THE NATIONAL POLICE OF UKRAINE
The formation of a new system of social relations, which began after the collapse of the Soviet totalitarian state, has been accompanied by global democratic transformations. The emergence of Ukraine as an independent European country, in particular, urged the need for restructuring and increasing the efficiency of law enforcement. In this regard, the Law of Ukraine “On the National Police” was adopted, which aimed to change not only the structure of law enforcement agencies, but also the attitude of the population to the law enforcement system as a whole. This is one of the most progressive steps towards building a democratic state and establishing a civil society.
The basic concept is the “determinant”, by which this object is distinguished from other objects by establishing its specific and typical features or such an interpretation of the concept that characterizes the object and replaces the description of its properties. The main thing in determinism is the proposition of causality – a relation of phenomena in which one phenomenon (cause) under certain conditions gives rise to another (action). The determinant-cause is that, in conjunction with certain circumstances, causes, directly causes, professional deformation as a consequence; the determinant-condition is a certain circumstance, a background that, in combination with the cause, contributes to professional deformation. The analysis of scientific intelligence, research materials and statistics allows us to classify the factors of social reality that in one way or another have an impact on the professional deformation of patrol officers of the National Police of Ukraine. Based on the “contribution” and the nature of influence on the process of professionalization of patrol officers of ideological and socio-economic factors, they can be grouped into groups: social or macro-system and micro-system determinants, which should include external organizational and internal organizational systems in general and activities of patrol police in particular, which reflect the whole range of problems of management and scientific organization of work in the National Police of Ukraine t and personal determinants.
PARTICIPANTS IN THE INVESTIGATION DURING THE CRIMINAL PROCEEDINGS
Examination is an independent investigative (search) activity that occupies a prominent place among the ways of gathering evidence in criminal proceeding. If underestimate the importance and significance of examination and replace it with another investigative (search) action, for example, the appointment and conduct of forensic-medical examination, it may lead to negative consequences, which were examined by scientists in their works. In the case of appointment of a forensic-medical examination and ask questions regarding injuries on the body of the suspect, the accused or the victim, given that in such cases the question of holding the examination as an independent investigative (search) actions does not occur, there is a threat that other traces of the crime on the human body remains unexplored. This may result the loss of necessary evidence, the recovery of which is not always possible.
Depending on the kind of examination, part 7 of article 223, part 2 of article 241 of Criminal procedure code of Ukraine during it realization is envisaged participating of certain persons in the obligatory order and their possible participation at the discretion of the investigator.
Individuals who provide and take part in the examination by the Criminal procedure code of Ukraine is the investigator, prosecutor with the participation of a forensic-medical expert or doctor, concepts. The definition of persons who should conduct the examination depends on the kind of this in vestigatory (search) actions. Thus, persons who were subject to examination, there was no legitimate reason to demand the removal of the investigator from participation in the conduct of this investigation.
Participants of examination can be divided into compulsory and optional, depending on the procedural form of criminal proceedings and examination under the procedural law.
ESTABLISHMENT OF THE INTERNATIONAL LEGAL BASIS FOR THE APPLICATION OF A PENALTY TO JUVENILES
It has been proved that international legal standards in the fi eld of the application of fi nes to minors are aimed at ensuring that every child who is considered to have violated criminal law or is accused of violating it has appropriate guarantees due to the special attitude of society to the value of childhood; full respect for his personal life at all stages of the proceedings was ensured.
It is concluded that the international legal acts of organizations such as the UN and the Council of Europe are both generally binding and recommendatory in nature, using the criminal law model of the application of punishment, it is argued that the international legal community has adopted a number of documents that clearly trace the trend towards the humanization of criminal legal response of minors who violate the criminal law. A component of this trend is the widespread application of the fi ne to minors, which is a public sanction not related to isolation from society.
PROBLEMS OF INVESTIGATION OF BRIBERY OF VOTER, REFERENDUM PARTICIPANT
It is emphasized that investigators need to use special knowledge and provisions of the legal acts that regulate the election process in Ukraine, including knowledge and ability to work with relevant specifi c documentary sources of information.
A low level of methodological support for the investigation of such crimes has been identified, as well as often insufficient experience of investigators, which leads to tactical errors and generally negatively affects the effectiveness of the investigation.
The need for effective engagement with a wide range of constituents is emphasized, as well as the involvement of experts in the investigation process for qualified assistance.
It is established that, given the predominantly latent nature of the crimes under investigation, the search and formation of an evidence base in such proceedings is diffi cult, especially in the context of procedural restrictions on the possibility of certain investigative (investigative) actions arising from the provisions of the applicable criminal law.
It is stated that the negative impact on the effi ciency of detection and investigation of investigated crimes tolerates the attitude of a considerable part of the citizens to the actions containing the signs of receiving undue benefi ts during the election race.
CIVIL, ENTREPRENEURIAL, COMMERCIAL AND LABOR LAW
PRIMARY AND SECONDARY LEGAL REGIMES IN LABOR LAW
LEGAL NATURE OF PERSONAL NON-PROPERTY RIGHTS OF LEGAL ENTITIES: THE RIGHT TO INVIOLENCE OF BUSINESS REPUTATION, SECRET OF CORRESPONDENCE AND INFORMATION.
The author analyzes that the theory according to which personal non-property rights are subjective rights determines under these rights the possibility to determine their behavior, to protect against unlawful encroachment.
The article defines that personal non-property rights are characterized by three components: 1) personal, 2) non-property, 3) law.
The main aim of the article is to determine the legal nature of the personal non-property rights of legal entities, which are enshrined in the Civil Code of Ukraine, and to state their own opinion that these rights can acquire economic content and to prove this opinion.
A general conclusion is made concerning that the legal nature of these rights may be primary, giving rise to primary law and secondary, depending on certain grounds. Individual personal non-property rights have an objectifi ed non-property object and therefore may be reversible it has been established.
The author states that there is no uniform notion of business reputation in the Ukrainian legislation, as this category changes in relation to the economic development of society. The article defi nes what is the privacy of correspondence and specifi es what mode of privacy you should observe. Two approaches to the concept of the right to information are considered and it is established that in addition to the right to information, to the access to information, the Civil Code of Ukrsine establishes the right of persons to refuse false information. The author determines how to distinguish false information from valuation judgments that are not subject to judicial protection.
SELF-PROTECTION OF PROPERTY RIGHTS IN OTHER PEOPLE’S PROPERTY IN UKRAINE
In modern conditions the development of the Institute of self-defense in the last decade effectuate the need for further research and scientific systematization. It should be noted that the current Civil Code of Ukraine does not contain any article that would provide an exhaustive list of ways of self-defense, in contrast to the ways of defence of civil rights by the court enshrined in Article 16 of the Civil Code of Ukraine. But first of all the updating of the domestic civil legislation should be carried out by taking into account the peculiarities of national legislation.
There is no doubt that nowadays in Ukraine there is an urgent need to substantially revise, streamline and update legal norms in the field of regulation of civil relations through their recodification. In this context, it is not only the current mechanism of self-defense that needs to be specified in the context of the positive foreign experience of continental Europe. The right to self-defense, including the right in rem to another’s property as a non-jurisdictional form of protection is increasingly used today. It should be noted that not all possible ways of selfdefense are regulated, and the mechanism of self-defense is quite generalized and simplified. Therefore, there is a need to consider the mechanism of self-defense, including the rights in rem to another’s property.
The purpose of the article is to conduct a comprehensive analysis of the Institute of selfdefense and the mechanism of its operation. The current Civil Code of Ukraine enshrines a large number of ways to defend the rights, including subjective rights. But the question arises: whether all existing methods of self-defense can be applied by a person, who is not the proprietor, that is, by persons who have rights in rem to someone else’s property. Therefore, there is a need to carry out a comprehensive analysis of the current legislation of Ukraine in order to eliminate controversial issues in the future practical application.
It is shown that the legal regulation of selfdefense rights according to the current civil law of Ukraine is based on the «everything is allowed that is not forbidden» principle. The determination of a complete list of selfdefense methods might be controversial to the dispositiveness of self-defense relations regulation. Self-defense is defined as the use of counter-measures by a person, which are not prohibited by the law and do not contradict to the moral principles of society according to the part 1 of Article 19 of the Civil Code of Ukraine. The requirements of the above-mentioned Article concerning the lawfulness of the actions during the self-defense are specified in its second part, according to which, the methods of self-defense should correspond to the violated purview content, nature of offence, and the consequences caused by this violation. It is found out that the German legislator choose a more faithful approach to the self-defense understanding by setting out a sufficiently detailed list of potential self-defense methods that can be favorably perceived by domestic civil law.
It is shown that depending on the method of violating the rights in rem to other’s property (deprivation ofownership, damage or destruction of the object of these rights, misuse of objects or unlawful obstruction of use) self-defense of rights in rem to other’s property can be aimed at: 1) eliminating obstacles to the use of rights in rem to other’s property; 2) restoring of violated rights in rem to other’s property. It is shown that self-defense of rights in rem to other’s property is a non-jurisdictional form of protection of an authorized person, which is expressed in independent actions not prohibited by law and that do not contravene the moral principles of society, aimed at terminating the violation or restoring the violated right or eliminating such a threat. Self-defense must be limited by immediate and proportionate measures, that are necessary and sufficient to return the property, suspend or prevent deprivation of property, its destruction or removal of the offender from the territory of real estate.
REVIEW OF SV KUDIN’S MONOGRAPH ON THE TOPIC: “COMPARATIVE HISTORY OF LAW: DOMESTIC TRADITION OF CONCEPTUALIZATION”
PARIS PROCESS: FROM DISINFORMATION TO DECOMMUNIZATION REVIEW OF THE BOOK: PARIS PROCESS: CAUSES, CONSEQUENCES, REALITIES, PERSPECTIVES. DOCUMENTS AND MATERIALS (1917 – 2017)
DISCUSSIONS, DISCUSSIONS, CURRENT
THE ORIGIN AND DEVELOPMENT OF INTELLECTUAL LAW IN UKRAINE
ON THE QUESTION OF THE PRINCIPLES OF INHERITANCE LAW
Oskilki spadkove law – the okremiy institute of civil law, then the norm should be based on the deprived ones of the principles of legal rights. The prototype of the Single and Unambiguous Transition of the Principles of Decline Law in Civil Law is not applicable. The middle of nowadays civil dignity is the provision of the principles and principles of decline law. This is explained by the lack of theoretical variations of the criteria for the introduction of legal norms to the principles of decline law, on one side, and the lack of accuracy of decline legislation in general.
Dumki naukovtsiv not zbigayutsya i stosnovno stake principle, yaki to become a system of recessionary law. Acts of fakhivtsi uninterruptedly expand their number, but they don’t recognize the traditional principles.
CHARACTERISTICS OF ADMINISTRATIVE JUDICIARY IN CONDITIONS OF REFORMING THE JUDICIAL SYSTEM OF UKRAINE
THE IMPORTANCE OF FOREIGN EXPERIENCE FOR REFORMING THE SYSTEM OF ADMINISTRATIVE JUDICIARY OF UKRAINE IN THE CONDITIONS OF EUROPEAN INTEGRATION
The fact that administrative justice is a very effective means of legal protection of subjective rights and legitimate interests of citizens remains unambiguous, and the very creation of the domestic system of administrative courts should contribute to ensuring access to justice, even if the appeals to court are substantially increased. The experience of many European countries suggests that administrative courts can be an accessible and effective tool for protecting human rights, freedoms and interests from violations by state authorities and local selfgovernment.
THE INFLUENCE OF INFORMATIZATION ON THE POSSIBILITY OF PERSON’S FREE ACCESS TO INFORMATION: THE GLOBALIZATION DIMENSION