THEORY, HISTORY OF THE STATE AND LAW, CONSTITUTIONAL RIGHT
Scientists call the modern process of expanding ways of body modification, and mainly the actively growing popularity, the process of “democratization” of body modification. It’s also proven that the public taste is changing, so tattoos and other body modifications are seen as legitimate forms of expression, with an expression of personality through tattoos.
Legal regulation of body modification is not clear. European countries reduce the amount of regulation to the age at which a person can perform modification and licensing of specialists. The latter activity is not governed by national rules of civil law.
It is analyzed that countries’ positions on age are also different. Most states allow tattoos after the age of majority, but some states provide for the right to obtain permission from parents at an earlier age: Australia, Austria, Croatia, Slovakia, Ukraine (16 years old), Spain, and Netherlands (14 years old). The UK only makes an exception for minors if they are tattooed for medical reasons. In some countries, there is no regulation whatsoever, which is why experts argue about interpreting age by analogy with other norms, such as Germany, Estonia, and Belgium.
Emphasis is placed on the importance of finding a reasonable match between the right to body modification and the appearance of the individual in society, especially if the above applies to certain requirements in the field of work. Legislation of the civilized States determines the admissibility of the presence of standards of appearance and clothing, which are selected at the enterprise, institution, organization. Therefore, the employer has a legal right to create corporate norms that include appearance. Representatives with tattoos or piercings are stigmatized by appearance, especially when they are hired, so they are forced to look for jobs in more inclusive workplaces.
The right to body modification may be determined by a somatic human right insofar as it does not violate the legitimate interests of others. In law-making, this right is usually clearly defined, but there is a principle “a person is allowed to do anything that is not expressly prohibited by law.” The case law has shown that courts do not find discriminatory employer requirements for appearance or their employees’ clothing requirements.
It is proved that constitutional law primary implements the ideas of transformation of public-legal life. The doctrine of constitutionalism envisages the principle of citizen participation in the exercise of public authority, communication with the public, and the basic decision-making of the state, taking into account the opinion of citizens. Therefore, e-government is primarily aimed at effectively implementing these principles. It should be considered as a mean of democratization of state power and constitutional – legal norms. E-government highlights such an important function as ensuring public participation in the form of citizen appeals.
The petition is an official request addressed to the authorities and signed by numerous persons. Petitions allow citizens to express their support or dissatisfaction with government initiatives and provide feedback to government agencies.
The petition form of appeals in Ukraine needs improvement in the aspect of person identification.
It is summarized that, having borrowed positive experience, a number of requirements should be defined at the national level in order to be able to provide a functional form of petition for citizen participation and to preserve the confidentiality of information.
Secure Authentication – e-government servers should clearly authenticate themselves to the user to prevent illegitimate servers’ duplication, especially to prevent obtaining from citizens credentials and ensuring that the request is received from a legitimate user.
Authorization, i.e. only citizens who have the right to sign the petition, must do so. For example, in some cases petitions can only be signed by citizens who are of legal age or who live in a certain territory.
Data integrity, i.e. no organization should be able to modify the data exchanged between the citizen and the e-government servers.
Confidentiality, which requires that all communications between the citizen and egovernment servers should be kept secret from other organizations. In addition, traffic analysis protection is required to prevent external observers from determining that a citizen is accessing the e-petition server (or a specific petition on the server).
Subscriber’s anonymity – the e-petitions server (even in collusion with the issuer of credentials) should not identify the citizens who have signed the petitions.
Prevention of multiple signatures, i.e. an e-petition application must be designed in such a way that it can properly identify and correct citizens’ attempts to sign one e-petition several times.
The availability of public scrutiny, as an important requirement for transparency in the signing of an electronic petition is to provide evidence of a fair counting of the petition signatures.
It is largely true for France, Germany, England, which often influence on the court practice of many foreign states in which their law is traditionally considered as a model. The article studies the approaches of judges of the above-mentioned countries to the interpretation of legal rules and treaties, their similar and distinctive features are compared. The advantages and disadvantages of each of these approaches are analyzed.
Also outside the author’s view there were no issues on reforming the law in France, where a few years ago, they fundamentally rewrote contractual law and law of obligations, bringing it closer to German law and to the content of pan-European acts of unification of law (PECL, DCFR). We particularly consider necessary to emphasize that, in the course of reform, the case law has been incorporated into the legislation for many years, the law has become more flexible, fair and effective.
Having analyzed the foreign experience regarding the interpretation of law, the author emphasizes the fundamentality of this topic: despite all the differences in the approaches of different legal systems, all of them are united by one goal: developing of a good practice of application of legal norms through proper understanding and clarification of legal regulations.
Despite the significant achievements of scholars who studied variuos issues of the dissident movement, correlative analysis of the impact of the dissident movement on the genesis of human rights social organizations is still rather neglected. A comprehensive study of any social phenomenon, in particular human rights organizations in the nongovernmental sector, is not possible without identifying the driving forces that have determined its existence in contemporary form. That is why the aim of this research was to determine the impact of the dissident movement, in particular its human rights wing, on formation of Ukraine’s human rights social organizations.
It has been established that the dissident human rights movement of 1960s -1980s played an important role in developing self-organization of the Ukrainian society, propagating notions of the state that follows the rule of law, intrinsic value of a person, prevalence of universal human values over class differences. The movement outlined preconditions for a new social situation, contributed to transformation of the Ukrainian national consciousness by showing that further progress of democracy was not possible without strict compliance with human rights standards, including norms pertaining to the right of a people to national self-determination.
The research states that the traditions established by the movement have inspired activities of the present-day human rights organizations, in particular those of the largest association of human rights organizations in Ukraine – the Ukrainian Helsinki Human Rights Union.
Research of modern state of ensuring road traffic safety sphere showed the insufficiency of the legal consolidation of the notions “road safety” and “ensuring road safety”. The contemporary scientifi c approaches of understanding of content the notion “road safety” are considered. The meaning of this concept has been defined as a normatively regulated state of public relations in the road traffic sphere, in which its participants and society are protected from the threats of road accidents and their social consequences.
Comparison of the definitions of “road safety”, “national safety”, “public safety” and “public order” in research and in the regulatory framework is performed. Consideration of road safety as the most important component of the concepts of “public safety” and “public order” which requires a systematic approach is recognized as the most appropriate.
The content and specifi c features of ensuring road traffi c safety as object of administrative- legal protection in Ukraine are considered. The leading place of administrative and legal norms in the regulation of the road safety sphere of was established. The main problems in the fi eld of administrative and legal ensuring of the road safety are identifi ed.
Therefore description of realization in the civil rule-making pulls the special order (procedure) of consideration of separate categories of legal businesses; well-regulated the norms of civil judicial law order of realization in civil cases, that is determined by the system of взаємопов’язаних civil judicial laws and duties and civil judicial actions they will be realized that by subjects – court and participants of process; character determines and by the specific of material right or охоронюваного law of interest, that is subject to defence; judicial order of violation, consideration, decision of certain group of civil cases.
From December, 15, 2017 changes inured in a Civilly-judicial code, and essentially a civil judicial law is expounded in a new release, here him substantially and it is radically changed. From this time courts apply new judicial norms. Thus, there is founding preliminary to analyse the next types of realizations. In accordance with a Civilly-judicial code by the tasks of civil is guard of rights and legal interests physical, legal entities, states by allround just, timely consideration and dispatch of civil civil businesses in complete and by a current legislation. Legislation about the civil rule-making вс order of consideration of the civil cases incorporated after signs in three types of realizations lawsuit; separate; order.
The norms of many fields ofjurisprudence – both private (civil) and public (administrative) are directly or indirectly aimed to protect personal non-property rights of citizens by law.
While examining the means of administrative legal protection of personal non-property rights, we consider it logical for the start to pay attention to the interpretation of the concepts of “methods” and “means”, as soon as normative legal regulation do not define the essence of the studied concepts or their relationship. As a consequence that leads to a numerous discussions about their interpretation.
Moreover, in modern scientific studies there is no single approach to the understanding of the concept of “administrative and legal means of protection of citizens’ rights” and as a result of that there is no clear and thorough formulation of its essence.
Administrative-legal means has specific features, the clarification of which necessitates the analysis of its most specific properties: purpose; bodies that protect personal nonproperty rights; characteristics, contents and procedure describing the order of action.
On the basis of different points of view concerning the definition of “administrative and legal means” that were analyzed and taking into consideration their research through the prism of protection of personal non-property rights, as well as identifying the features of administrative and legal protection of personal non-property rights, we offer under “administrative and legal protection of personal nonproperty rights” understand the set of statutory organizational, property and non-property, factual and legal, preventive (prophylactic), restorative and punitive instruments and forms of state protective practices by public authorities and local municipal bodies, as well as protective activities of citizens in the field of administrative and legal regulation and ensuring the implementation of personal non-property rights, combating offenses, restoring the legal capacity of citizens in this area, ensuring compensation for damage. We see the need to consolidate this definition at the legislative level to distinguish administrative and legal means of protection of personal non-property rights from means in other fields of law.
Thus, administrative and legal means of protection of personal non-property rights are a kind of bridge between the academic theory of administrative and legal protection of personal non-property rights and practical recommendations for law enforcement actions of state executive authorities and local municipal bodies in this area.
CRIMINAL LAW, CRIMINAL PROCESS AND CRIMINAL SCIENCE
THE PROBLEM OF DETERMINING THE CONTENT AND SCOPE OF CRIMINALIZATION OF VIOLATIONS OF SANITARY RULES AND REGULATIONS FOR PREVENTION OF INFECTIOUS DISEASES AND MASS POISONING IN THE THEORY AND PRACTICE OF COMBATING CRIME IN UKRAINE
The author has emphasized on the urgency of studying this area of criminological provision, which is due to reform changes and constant legislative changes in regulating the issues related to economic security. A number of basic measures that should be implemented in the field of scientific and methodological provision of the state’s economic security has been highlighted.
The special importance of close interaction between science and practice in combating crime on the way to ensure economic security has been emphasized. The author has noted that nowadays implementation of scientifi c research results into the practical activity of the employees of the National Police of Ukraine should be considered as a signifi cant factor in improving the effi ciency of law enforcement activities, which unfortunately, is not fully used in combating crime.
Particular attention has been paid to the need to intensify the scientifi c development of a wide range of relevant issues in the field of combating economic crime, as one of the main threats to the economic security of the state on the one hand, and forming a criminal policy on the basis of a qualitatively new scientific criminological basis – on the other hand.
The priority of state support for the development of scientific activity (in particular, departmental) in Ukraine, the need to ensure the participation of researchers in forming the main directions of national policy in the field of scientifi c development, has been emphasized.
The author has outlined the range of directions perspective for further scientifi c research, in particular: mathematical provision, motivational, anti-crisis, economic, technological, software and other types of ensuring the economic security of the country.
The author has outlined the basic areas of preventive work at the stage of identification, elimination and neutralization of the causes and conditions of negative phenomena that have arisen or can occur and determine crimes against state sovereignty and territorial integrity.
Particular attention has been paid to the fact that the clear regulation of the legal status of law enforcement subjects, the allocation of their powers, the improvement of forms and methods of their activity are of particular importance for effective implementation of special measures to counteract these crimes.
It has been emphasized that there is an urgent need to differentiate the criminological impact of special measures to counteract terrorism as one of the most dangerous crimes encroaching on the national security and territorial integrity, depending on the stages of the organization and implementation of the prevention process.
The author has summarized that the system of measures of special counteraction to crimes that encroach on the territorial integrity and state sovereignty of Ukraine should be conceptually considered in two senses, fi rst of all, as the essence and content of the mechanism of combating crime of a certain kind based on established and scientifically proven data concerning its tendencies, characteristics, regularities and manifestations as a phenomenon of modern society; secondly, as a defining strategic vector, a basic way to deploy and execution of a practical implementation of counteraction to crimes that encroach on state sovereignty and territorial integrity of Ukraine.
The principle of inevitability of liability, which can ensure the stable development of Ukraine, the proper level of law and order, protection of the interests of individuals, society and the state by law enforcement agencies, should be the basis for combating crime. The implementation of the principle of inevitability of liability in practice will have a positive effect on the social climate in society, will consolidate the key structures involved in the fight against crime, in achieving systematic, coordinated activities. Besides, ensuring the principle of inevitability of liability, but not punishment, will satisfy the public expectations by the state’s performance of the function of protecting citizens from criminal offenses. The main thing is the willingness of public authorities to respond to any offense, to be sensitive and attentive to citizens’ requests for their protection and assistance, demonstrating the offender that he or she will be detained and, if necessary, severely punished.
The article discloses the content of the grounds for applying the measures of criminal law to a legal entity. Analyzed yudicial practice. It is concluded that the crime can be recognized as committed on behalf of a legal entity if the authorized individual acted as a representative of the legal entity, that is, personified such a legal entity and realized the legal personality of the latter, and did not act privately, acting on its own behalf. The methodology and tactics for collecting evidence to establish the grounds for applying measures of criminal law to a legal entity are defined. Features of providing access to materials of pre-trial investigation are considered.
Victimological measures of prevention of illegal seizure of vehicles in Ukraine are highlighted, as well as the priority role of victims of crime in the occurrence of victimogenic situations and determinants of committing this crime. This crime is committed in the following victimological situations: in places not equipped for parking vehicles (on sidewalks, in the yards of houses, outside settlements); on vehicles not equipped with burglar alarms, or with primitive door locks or when they are not locked (leaving the vehicle while the engine is running; open door windows; no passengers (other persons who could prevent the commission of this crime); trusting relationships and the victim, in whom the latter voluntarily transferred his vehicle into the hands of the subject of the crime (friendship; acquaintance; colleague of work, training, etc.). The following victimologic determinants of this crime have been established. effect: a decrease in the level of law and order and overall effectiveness of the protection of the legal rights, freedoms and interests of the individual, society and the state as a whole, which has led to an increase in the level of victimization in Ukraine (especially vulnerable in this context are territories in the Donbass); in the east of Ukraine and the Crimea, the number and subsequent migration of which are not subsequently monitored by law enforcement agencies, which creates conditions for this category of persons to illegally seize vehicles; vehicles on which persons displaced from the eastern Ukraine and the Crimea arrived from the occupied territories are not registered in the local police units, which creates the conditions for committing this crime, since additional information resources, time, forces and means are required on their search; other victimological determinants (abuse of the law and temporary seizure of foreign vehicles by law enforcement agencies and other paramilitary units; a significant decrease in the standard of living of the population in recent years, including the need for the illegal movement of citizens to another’s place of work and employment.
The attention is focused on the fact that in the countries of the Romano-German legal family: priority is given to the criminal legal protection of human life and health, and not to relations in the sphere of governance or authority of state authorities; the criminal legal protection of the health of law enforcement officials is generalized on the basis of the legal status of the victim; in some cases, the relatives of the victims are not provided with adequate criminal law protection; there is no differentiation of criminal liability for violence against a law enforcement offi cer, etc.
It is noted that in American criminal law there is no separate corpus delicti or threat of violence according to the criterion of the attitude of the victim to law enforcement offi cials. The generalized legislative structure of the criminal legal protection of public servants is consolidated, the category of which also includes law enforcement offi cers, given the legal nature of their service.
It was stated that studies of the possibilities of borrowing foreign legal samples in order to optimize Ukrainian legislation on criminal liability for threats or violence against law enforcement offi cers revealed both promising provisions of the relevant regulatory legal acts and a number of advantages of the Criminal Code of Ukraine. The relevant areas of further research on the introduction of progressive approaches to the process of improving the criminal law structure of the crime, the signs of which are enshrined in Art. 345 of the Criminal Code of Ukraine.
Practical value of comparative approach and approach of adaptation consists in borrowing some conceptual ideas and implementation in our national legislation. The opportunities of this method are used for dealing with such a criminal law issues as:1) firstly, harmonization and unification of laws in the countries that are members of UN, directly applicable international laws such as «the notion of crime», «criminal penalties» etc.; 2) secondly, It gives an opportunity to take into account tendencies of international law, especially concerning with human rights. One of the fundamental elements of effective dealing with the crimes is right and accurate criminal estimation and qualification of human’s actions. Such a qualification is based on establishment of all signs of criminal offence and consolidation a specific law. Appropriate qualification aims to eliminate contradictions and ambiguous approaches to definition of deeds as crimes.
So, analisys of main distinctions in legislations, analisys of crime rate statistics of solved crimes in Europe and in Ukraine leads to understanding of what provisions we need to borrow.
On the basis of the analysis of the rules of criminal procedural law the grounds for the recognition of evidences inadmissible are classified into three groups: 1) obtaining evidences as a result of a significant violation of human rights and freedoms; 2) obtaining evidences as a result of other signifi cant violations of the rules of criminal procedural law; 3) admission of significant violations of the rules of criminal procedural law that are not related to the obtaining of evidences. Taking into account the norms of the Criminal Procedural Code of Ukraine and the Supreme Court’s jurisprudence, the grounds for the recognition of evidences inadmissible, which are covered by each of the selected groups, are given.
It is indicated that the issue of admissibility/ inadmissibility of evidences based on the internal conviction of a court, which is limited by significant violations of human rights and fundamental freedoms fi xed in the rules of criminal procedural law.
It is pointed a number of aspects to be considered by the court in deciding the inadmissibility of evidences due to signifi cant violations of the rules of criminal procedural law are distinguished, namely:
1) the position of the parties of criminal proceedings regarding the admissibility of evidences; 2) the materiality of the violation of the rules of criminal procedural law and the consequences it caused;
3) the significance of the evidence to establish the circumstances that constitute the subject of proof;
4) the admission of evidences inadmissible does not lead to the refutation of the facts to be proved;
5) the consequences of the admission of evidences inadmissible in the context of the requirements for a judicial decision, in particular its legality, validity and fairness.
Legal nature of mercenarism encompasses relationship in political, international and legal, criminal and legal spheres. At the present moment International Convention against the recruitment, use, financing and training of mercenaries adopted in 1989 is the basic international document, which criminalizes mercenarism. Although its ratifi cation list is not very big, any countries provide severe punishments for mercenarism and related practices.
The factors that determine the perpetration of robbery on the housing of citizens are in many respects derived from similar factors of general self-serving crime. In general, these factors are associated with a general decrease in the controllability of social processes that appeared in the emergence of «shadow» economic relations, the expansion of the number of sources of illicit income, complication of the mechanism of formation of public consciousness, in the emergence of a number of unregulated segments in the legal field.
The whole set of factors that determine the perpetration of robbery on the housing of citizens can be divided into six groups: economic, social, political, organizational, moral and psychological and technical. Factors affecting economic and organizational groups have a major impact on the crimes analyzed.
Among the main economic factors are the criminalization of the economy, the differentiation and polarization of the population by income, unemployment and the negative processes that have developed in the financial and economic crisis. The essence of the core organizational factors can be reduced to the shortcomings in the work of law enforcement agencies, which are most evident in the reform.
The emergence of criminal groups that specialize in committing robbery on the housing of citizens occurs on the basis of the criminal community of individuals seeking criminal profits. In the process of communication of such persons there is a rational, emotional and volitional interaction and interaction of individuals, which is reached by mutual understanding, conditions of cohesion and solidarity characterizing group and collective activity are created.
DIFFERENTIATION OF PART-TIME JOB AND COMBINATION OF DUTIES FROM OTHER TYPES OF ACTIVITIES IN THE OFFENSE UNDER ARTICLE 1724 OF THE CODE OF UKRAINE ON ADMINISTRATIVE OFFENSES (CUAO)
Certain problems, which are still present in the provisions of the administrative legislation in terms of determining the constructive features of the composition of violation of restrictions on part-time job and combination of duties with other activities, have been identifi ed.
Normative legal acts of Ukraine defining the concepts of “part-time job” and “combination of duties”, as well as the provisions of the theory of administrative law in determining the content of these concepts have been analyzed.
The main features of part-time job and combination of duties were identifi ed, those features that are common to both concepts, as well as those that differentiate between part-time job and combination of duties have been set.
The defi nition of hooliganism was amended by a decree of the Presidium of the Supreme Soviet of the USSR of August 10, 1940 “On criminal liability for petty theft at work and hooliganism”. In accordance with this Decree, “hooligan actions in enterprises, institutions and in public places” were punished with imprisonment for one year, if these actions did not entail a more severe punishment.
In the article it is analyzed the definitions of criminal justice according to different researchers, which reforms of criminal justice authorities have already been carried out during the independence of Ukraine and what results these reforms have achieved, marked mandatory tasks that should be put by any concept of criminal justice reform in the context of anti-corruption actions.
The author reveals the theoretical basis of the legal category of criminal justice authorities, and also analyzes in detail the place and importance of the National Anti-Corruption Bureau of Ukraine in the system of criminal justice authorities.
In the article the attention is drawn to the fact that reforming criminal justice agencies provides for a certain reload and introduction of new methods in activities. It was made the remark that the reform of criminal justice authorities could be the starting point for further reforms in our state in other areas of life.
To conclude it was determined that the result of the reform of criminal justice activities in the fi eld of combating corruption, when applying any concept, should be the transformation of law enforcement agencies from purely punitive and pursuing harsh methods to authorities whose main purpose is to restore violated human rights and to prevent this violations at all.