NaUKMA Research Papers. Law

Journal Information
ISSN / EISSN : 2617-2607 / 2663-0621
Total articles ≅ 92
Current Coverage
DOAJ
Filter:

Latest articles in this journal

NaUKMA Research Papers. Law, Volume 7, pp 44-51; https://doi.org/10.18523/2617-2607.2021.7.44-51

Abstract:
The concept of criminal influence, which was introduced into the Criminal Code of Ukraine in June 2020, has been highly criticized by the scientific community and practitioners, among other things, for violation of the principle of legal certainty and the rule of law. This article defines the main disadvantages of the provisions that establish criminal liability for acts related to criminal influence and analyzes the feasibility of preservation of these provisions in their original form in the Criminal Code of Ukraine and the possibility of their transfer to the draft of the new Criminal Code of Ukraine. It is concluded that the mentioned norms should be at least substantially revised, with taking into account comments of the Ukrainian scientists, and cannot be transferred into the new criminal law as they are currently defined. Moreover, introduction of specific amendments to other laws is also required in this regard.The Working Group on the development of criminal law, as the author of the draft of the new Criminal Code, reasonably refused from the existing concept of the criminal influence. At the same time, they defined criminally punishable acts, which can be considered as a certain equivalent of the criminal influence (socalled “criminal leadership”). Provisions developed by the Working Group differ from the current by the more precise definition of specific actions, which constitute corpus delicti of criminal leadership, avoidance of jargon formulations, decrease of the terms of imprisonment for committing the relevant crimes, and diversification of criminal legal measures that can be applied to offender besides the punishment. In general, it appears that the Working Group avoided the main mistakes which are present in the current legislation. However, it is too early to draw conclusions regarding the acceptability of the proposed article of the new criminal law. Only after the draft of the new Criminal Code of Ukraine has been finished and its provisions can be analyzed altogether, final conclusions regarding the mentioned norms can be drawn.
Serhii Bahirov
NaUKMA Research Papers. Law, Volume 7, pp 3-13; https://doi.org/10.18523/2617-2607.2021.7.3-13

Abstract:
The article highlights the problem of inconsistency of legislative provisions on careless forms of guilt,which are contained in the General Part of the Criminal Code of Ukraine, to the constructive peculiarity ofcriminal offenses that are provided by the Special Part of this Code.The author draws attention to the problem which emerged due to the future transfer of a significantnumber of criminal offenses from the Code of Ukraine on Administrative Offenses to the book of criminaloffenses of the new Criminal Code of Ukraine. The vast majority of these offenses are constructed so as tohave a formal composition, to wit the consequences outside it. At the same time, the construction of acareless form of guilt and its varieties, recklessness and negligence, the normative models of which arecontained in the General Part of the draft Criminal Code of Ukraine, provides for a mental attitude to theconsequences.It is substantiated that the developers of the draft of the new Criminal Code of Ukraine will have todecide on one of the two directions of the system: either to completely abandon the criminalization ofinconsequent carelessness, leaving the legislative concept of carelessness covering only criminal offenseswith material composition, or to agree with the idea of presence of the inconsequent carelessness within theinstitute of criminal offense.Future problems with determining the form of guilt of criminal offenses are shown, if among theprovisions of the General Part of the projected Criminal Code of Ukraine there is a provision on the limitedpunishment of a careless behavior.The principle of constructing norms on criminal liability for careless acts is proposed, according towhich resultative careless delicts should be provided in the book of crimes, and careless offenses with aformal composition should be misdemeanors.In order to properly cover the provisions of the General Part of the future Criminal Code of Ukraine onthe carelessness of all constructive types of careless offenses, the author proposes to provide two types ofcareless form of guilt: resultative carelessness and inconsequent carelessness.Theoretical modeling of the relevant criminal law norms has been carried out, which will consolidate theinconsequent carelessness and its varieties.
Vasyl Marmazov, Pavlo Pushkar
NaUKMA Research Papers. Law, Volume 7, pp 33-43; https://doi.org/10.18523/2617-2607.2021.7.33-43

Abstract:
The Ukrainian legal thought has traditionally regarded the right of access to justice as a right of access to the State court, or to State managed or controlled procedures for dispute settlement. One of the main reasons for that was that the non-state, or uncontrolled by the State dispute settlement was not formally permitted, prohibition being imposed by the Soviet system and even to a certain extent during the period of domination on parts of the territory of the modern Ukraine, of the various externally imposed requirements of various legal systems in force at the material time. Non-state dispute settlement in its traditional forms, mainly based on the custom, was also left outside the attention in the pre-Soviet times and could not find its dignified place between accessible schemes and instruments for dispute settlement. Moreover, the understanding that justice delivery for the parties to the dispute should remain within State monopoly, became commonly accepted as from 1996. The adoption of the Constitution of Ukraine to a certain extent perverted approach to settlement of conflicts, focusing on the main role for the State courts, to these ends. In particular, the courts are having “direct jurisdiction” over any dispute, this led to perception of pre-trial settlements as unnecessary, even as regards those that remained in force, notably, the commissions on labour disputes that were recognized in the case-law of the European Court as equating in legal force to binding and enforceable legal instruments. Thus, the traditional historical approach to seeing judicial examination of disputes as an exceptional step in dispute settlement, in the absence of agreement or settlement by the parties, notably through mediation, arbitration or conciliation, variousforms of third party involvement, steadily disappeared. However, alternative examination of disputes is returning back to its original standing. It is gaining its place in the discussions on the judicial reform and reform of the system for settlement of disputes. This reform is far from being finalised and possibly has not even started in practice. The new approach to settlement of disputes, aimed at breaking the principle of State monopoly on examination of disputes and seeing State dispute settlement by court as an exception, is still not firmly entrenched into the mentality of lawyers, public servants, judges, law enforcement employees and politicians in Ukraine. Thus, the article suggests and points out to importance of taking into account with these changes of a wider European perspective. Such a perspective should relate not only to theoretical and practical advantages of the non-state dispute settlement, but also provides that the privatisation of the dispute settlement procedures and breaking the state monopoly on it, is a part of wider international obligations, also being a part of the supranational legal order of the European Union. This obligation of Ukraine is also seen as part of the requirements stemming from the Council of Europe law. Both the EU law and the Council of Europe provide for extensive soft law recommendations, legal principles, which are formed by the case-law of the European Court of Human Rights. Such an approach provides that alternative means of dispute settlement, including arbitration, do not run contrary to the principles of human rights with regard to fair judicial proceedings. On the contrary, they could be seen as a highly relevant actual means of dispute settlement for any modern European society, built on the principles of respect to rule of law and human rights.
NaUKMA Research Papers. Law, Volume 7, pp 14-19; https://doi.org/10.18523/2617-2607.2021.7.14-19

Abstract:
The article explores the problems of a temporary seizure and arrest of property in the course of pre-trial investigation in light of the case law of the Appellate Chamber of the High Anti-Corruption Court and the European Court of Human Rights. It is outlined that investigators face particular problems with differentiation of material objects that are subject to seizure upon the decision of an investigator or a prosecutor and may be used for the purposes of the criminal proceedings and those which fall into the category of temporarily seized property, and the legality of their seizure is subject to control by an investigating judge. Investigating judges face the same difficulties which result in decisions on arrest imposed on biological, biometric traces, cigarette butts and other material objects that are not subject to arrest for they do not belong to the category of property. The author analyses whether documents, personal notes, and other items of the kind may be regarded as property and the criteria to categorize them as such. It is concluded that if these items are used as evidence in the criminal proceedings but have no characteristics of property, are not objects of civil rights, have no historical, artistic, scientific, literary, economic, or any other significant value in general or for a certain individual, they are not subject to judicial control and arrest and should be attached to the criminal proceedings in accordance with the rules prescribed by the Criminal Procedural Code of Ukraine.The author pays particular attention to the unfortunate wording of Part 7 of Article 236 of the Criminal Procedural Code of Ukraine, which prescribes that seized objects and documents not included in the list of items to be found in the course of a search, contained in the decision of the investigating judge onpermission to conduct a search, are considered temporarily seized property. This legal norm makes the issue of whether certain items belong to the category of property dependent upon their inclusion in thelist or absence in the list, contained in the decision of the investigating judge. Such an approach contradicts the basic principles of the property law. Therefore, the norm should be excluded from Part 7 of Article 236 of the Code. The author also suggests to change the wording of Part 7 of Article 237 of the Code and to clearly outline that documents, as a general rule, are seized and items that fall into the category of property are temporarily seized.The suggested approach will lead to harmonization of the norms of criminal procedural law with those of civil law, setting clear and understandable criteria for defining the legal status of items seized or temporarily seized in the course of examination or search and fulfilling the tasks of effective and impartial pre-trial investigation.
Pavlo Pushkar
NaUKMA Research Papers. Law, Volume 7, pp 96-101; https://doi.org/10.18523/2617-2607.2021.7.96-101

Abstract:
The present case commentary is focused on cases concerning the so-called Maidan events of 2013-2014. The commentary suggests that the cases at issue underline existence of the long-standing systemic and structural problems within the domestic legal system of Ukraine, which need to be resolved, notably in order to harmonise the legislative and institutional framework of protection of human rights with the requirements of the European human rights law, which incorporates both the European Convention of Human Rights and the EU Charter of Fundamental Rights. The cases touch upon a number of previously deficient legislative provisions and institutional practices. However, most importantly they underline the need to adopt legislation to regulate and ensure protection of freedom of association. Such demand is clearly ensuing from the case-law of the Court and its findings in specific cases as to the lack of coherent legislative framework for this right. The extensive Council of Europe expertise in the area covered by the judgments is surely of reference to the implementation measures – the CPT standards, Venice Commission recommendations, other elements, as well as the findings of the International Advisory Panel are all of relevance. Change is needed urgently as the problems identified in the judgments of the Court clearly fall within the rule of law and justice cooperation aspects of interaction not only with the Council of Europe, but also with the European Union, under the Association Agreement with Ukraine.
Zoya Pogorelova
NaUKMA Research Papers. Law, Volume 7, pp 52-60; https://doi.org/10.18523/2617-2607.2021.7.52-60

Abstract:
The article, based on clarifying the content of related concepts of law-making, considers the principles of the rule-making activity as the power activity of public authorities. Such principles include the principles of humanism, democracy, the rule of law, human rights, and scientific validity of rule-making decisions, which necessitates the professionalism of rule-making activities, planning, systematics, complexity, timely revision and updating of legislation, and transparency. The content of these principles is revealed, their ranking is carried out, their importance for legal science and practice is emphasized, and the positions of scientists concerning their optimal list and characteristics are analyzed. In particular, attention is drawn to the fact that the principle of humanism is reflected in the fundamental values that underlie the constitutional order, the basis of the current law and human rights enshrined in the Constitution and laws of Ukraine: human dignity, the right to self-realization, justice and freedom, non-discrimination and equality before thelaw, tolerance, responsibility and respect for others. The principle of democracy, as a fundamental principle of rule-making, legitimizes the subjects of rule-making and creates a basis for their legal activities. The rule of law is also a fundamental principle of rule-making (including its components such as the principle of direct effect of the Constitution of Ukraine, the rule of the Constitution as the Basic Law, the principle of legality, legal certainty, the equality before the law and non-discrimination, and proportionality). It is emphasized that the principle of scientific validity of rule-making decisions necessitates professionalism of rule-making activities, and ensuring a high professional level of rule-makers makes it possible to carry out rule-making activities at a high scientific level, on a planned, systematic, comprehensive basis, the legal regulation of public relations, and the implementation of state functions. Aspects of the principle of publicity of normative activity of the Parliament, the Government, and the President of Ukraine are also analyzed.
Illia Yarosh
NaUKMA Research Papers. Law, Volume 7, pp 87-95; https://doi.org/10.18523/2617-2607.2021.7.87-95

Abstract:
The author of the article describes the collisions regarding the participation of the prosecutor in the civil procedure. It is mentioned that the emergence of collisions regarding the participation of the prosecutor in the civil procedure is associated with the reform and adoption of the new civil procedure legislation, as well as the amendments to the Constitution of Ukraine. The collisions which have arisen between the Constitution of Ukraine and the Law of Ukraine “On the Prosecutor’s Office” of 2014 and the Family Code of Ukraine are described. According to the Constitution of Ukraine, the prosecutor is deprived of the function of representation of citizens, and now has the function of representing the state in the civil procedure. It is mentioned that the legislator erroneously substantiates the existence in the laws of Ukraine, which contradict the constitutional norms, of such functions of the prosecutor as the representation of citizens and protection of children’s rights by the social role of the state. The State ombudsman should perform these functions, and the state should develop the institution of the free legal aid. The author analyzes the scientific publications of the last four years and emphasizes the contradictory points in them. It is mentioned that not all scientists have consistently considered the participation of the prosecutor in the civil procedure. Today not only society but also scientists interpret the laws differently due to the shortcomings of the legislation. It is separately substantiated that the prosecutor is the official representative of the state, defending its interests in court. So the plaintiff in cases, where there is no state body that can file a lawsuit, should be the state but not the prosecutor. It is emphasized that the legislation of Ukraine regarding the participation of the prosecutor in civil proceedings has to be brought in line with the provisions of the Constitution of Ukraine. The prosecutor must perform only the functions specified in the Constitution of Ukraine. In this case, the principles of the rule of law and a democratic social state will be maintained.
Yurii Kliuchkovskyi
NaUKMA Research Papers. Law, Volume 7, pp 28-32; https://doi.org/10.18523/2617-2607.2021.7.28-32

Abstract:
The article considers one of the aspects of the temporal measure of the election process: the preclusive nature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally accepted that terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed. Any actions that were to be committed during such a period have no legal consequences if they are committed after its expiration. Some election terms are recognized as preclusive by the law. The lack of a normative provision on the possibility of extending or renewing other election terms, together with the awareness that the election process is fast-paced and irreversible as well as the analogy with the terms recognized as preclusive, provides grounds for law enforcement bodies to extend this feature to all election terms. The article considers one of the aspects of the temporal measure of the election process: the preclusivenature of the terms of electoral procedures (electoral terms).Determining the legal nature of electoral terms is of great practical importance. It is generally acceptedthat terms are preclusive if they must be strictly adhered to, i.e. these terms cannot be extended or renewed.Any actions that were to be committed during such a period have no legal consequences if they are committedafter its expiration. Some election terms are recognized as preclusive by the law. The lack of a normativeprovision on the possibility of extending or renewing other election terms, together with the awareness thatthe election process is fast-paced and irreversible as well as the analogy with the terms recognized aspreclusive, provides grounds for law enforcement bodies to extend this feature to all election terms.Judicial practice demonstrates various approaches to understanding the nature of different election terms. Although their preclusive nature is declared, it is not followed in all cases. Therefore, there exists a problem to search for a criterion that would allow to divide the terms of the implementation of certain election procedures by the relevant subjects of the election process into preclusive ones and those being mandatory but extendable. To find such a criterion, we used a comparison of two similar situations related to passive suffrage during the national elections – the nomination of a candidate and deciding regarding his registration.The difference between the conditions of the corresponding procedures is that the candidate being he holder of passive suffrage acts on his own initiative, i.e. at his own discretion submits documents for registration, while the opposite party (election commission), registering the candidate, acts on duty, having imperative power to consider these documents and make decisions on them in accordance with the requirements of the law. This is the reason for the difference in the nature of the terms for the corresponding procedures.Thus, the election terms are preclusive if they are related to the actions taken by the subjects of the election process at their own discretion, including for the exercise of their own rights. At the same time, the terms set for the obligatory actions aimed at ensuring the rights of other entities, although mandatory (violation of which is qualified as being illegal), but they cannot be considered preclusive.
NaUKMA Research Papers. Law, Volume 7, pp 71-78; https://doi.org/10.18523/2617-2607.2021.7.71-78

Abstract:
The history of law should be viewed not only within the context of the study on the birth of law being one of the social regulators, its emergence and evolution of its certain institutions, but also as an instrument of thorough understanding of legal forms recepted from Roman Law. Certain forms of these include usucapio – limitation of action introduced to Russian Imperial legislation by Article 301 of the Legislation Code of 1832.Ukraine can view the doctrine developed by legal scholars of those times as well as court practice on these issues as part of its own history as it used to be a part of the Russian Empire, where (except for Chernihiv and Poltava regions) Russian Imperial legislation was fully in force. Russian Imperial legal scholarship has adopted the approach applied by Roman law, including usucapio and praescriptio. However, the issue of usucapio existence in legislation acts of the Moscow State as a separate institute before 1832 has provided grounds for discussions.Similarly, the legal essence of the usucapio institute has also provided grounds for scholarly discussions on philosophic grounds regarding the impact of limiting legislation on the application of the limitation institute whether limitation should be similarly the ground for losing or acquiring rights, or regarding the conditions when the appropriate limitations may be applied.The analysis of past scholarly concepts provides possibilities to develop a full picture. Nevertheless, this picture is not without homogeneity of thoughts. The author takes the approach that the usucapio institute in Russian Imperial legislation has appeared and developed for assuring the stability of civil relations. Regardless of the division of providing evidence, the existence of the actual possession by the actual possessor of the mortgage after the 10-year term, the new possessor has been recognized and registered the property rights within time limitation if the conditions prescribed in the law are actually fulfilled. The interest in theoretical development in the limitation issue and the amount of the court practice provides evidence that it was claimed by the society.The definition of the Zemska time limitation has been changing gradually, and it can generally be viewed as calm, non-discussional, and continuous possession within the term developed by the law, in terms of “property”. The law of those times did not demand a fair possession conditions for acquiring the rights on limitation grounds, however this approach has been criticized by scholars.Generally, the author has selected the panoramic approach of constructing her research by paying attention to discussional issues, as well as the issues being of interest nowadays. Specific focus is made on actual inaction of titular proprietors of mortgage as the condition for loss of the right on limitation grounds and non-act possession. The actuality of stability of civil relations remains the same nowadays as it was in the past.
Mykhailo Shumylo
NaUKMA Research Papers. Law, Volume 7, pp 79-86; https://doi.org/10.18523/2617-2607.2021.7.79-86

Abstract:
Judgments of the Supreme Court, their legal nature, tasks and importance have repeatedly been the subject of discussions among the legal scholars and the legal practitioners, so this issue will not be the main point of the article.Quasi-regulation as one of the most significant functions of the legal opinions of the Supreme Court will be described in the article on the example of family dispute cases.The legal opinions of the Supreme Court are generally acknowledged as quasi-precedents and the article contains the conclusion that such terminological definition is the most balanced as the Supreme Court caselaw could not be called precedent in the meaning of this definition in Anglo-Saxon law.The research has proved that quasi-precedents can set the quasi-legal regulation.In that context, however, it is important to distinguish that precedents can create legal regulation, while the quasi-precedents can provide the rule of law with additional regulatory content by its wider interpretation.This can be clearly observed when the Court of Cassation interprets in common the general and special legal provisions.It is proved that quasi-regulation, which is provided by the Supreme Court in certain cases, is the result of the several objective processes, including:– convergence of Anglo-Saxon and Romano-Germanic Law;– transformation of the national legal system from authoritarian soviet to democratic;– gradual abandonment from positivistic interpretation of legal provision in favor of rule of law and faire justice (human-centered);– more frequent application of dynamic interpretation of legal provisions.At the same time, it should be emphasized that quasi-regulation is not the prior task of the Supreme Court for the reason that ensuring the uniformity and sustainability of case law remains its basic function. Quasi-regulation is an additional instrument aimed at strengthening the rule of law in Ukraine.In this regard such an instrument is more useful when: (1) rules of positive law do not fulfill this function; (2) there is a need to use the legal regulation for resolving the conflicts of law and filling the gaps in legislation.Quasi-regulation contributes to the development of the doctrine of law and becomes an indicator for the legislator that certain relations need urgent regulation, that public relations have changed, become more complicated and need immediate legislative regulation, and that legislators demonstrate slow response tothe mentioned changes.
Back to Top Top