Theory and practice of jurisprudence最新文献

{"title":"Trends and dynamics of application of the case law of the European court of human rights during the criminal proceedings: the statistical and the sociological research","authors":"Інга Георгіївна Каланча","doi":"10.21564/2225-6555.2020.18.213676","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.18.213676","url":null,"abstract":"In this article we have described the results of statistical and sociological observations of the application of the case law of the European Court of Human Rights (ECHR) during criminal proceedings in Ukraine. The purpose of this article is to identify trends and dynamics of application by national courts of the case law of the ECHR during criminal proceedings, to clarify the current state of law enforcement in this area.We conducted a statistical observation – Monitoring of the information of the Unified state register of court decisions (USRCD) on the state of application of the case law of the ECHR by national courts during criminal proceedings, which illustrates a steadily growing trend: more than 20 times from 2014 (0,1 %) to 2020 (2,24 %). We analyzed the results of the monitoring of the USRCD by territorial units and established the difference in the rates of application by the courts of first and appellate instance of the case law of the European Court of Human Rights during criminal proceedings in the first half of 2020 by 5 and sometimes 8 times between different regions of Ukraine.We conducted a sociological survey - Survey of the expert community on the application of the case law of the ECHR in criminal proceedings. We analyzed the results of the survey which indicate that 89% of the surveyed use the case law of the ECHR during criminal proceedings. We found that the average frequency of using the case law of the ECHR in criminal proceedings is 36,8 %.We propose to introduced in the USRCD a mandatory hyperlink to the decision of the ECHR to the database of the ECHR «HUDOC» in the national court decision (supported by 67,1 % of respondents); create an additional filter in the functionality of the USRCD to search for the case law of the ECHR (supported by 87,5 % of respondents); create a distance learning portal to study the case law of the ECHR (supported by 89 % of respondents)","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126112312","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}

{"title":"Liberty of thought, conscience and religion in the Convention for the Protection of Human Rights and Fundamental Freedoms. Some particular aspects","authors":"Ж. В. Чевичалова","doi":"10.21564/2225-6555.2020.18.217173","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.18.217173","url":null,"abstract":"This article is devoted to the certain aspects of protection of liberty of thought, conscience and religion in the meaning of Art. 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms. We have studied the complexity of the key concepts interpretation, the essence of which is guaranteed by the Convention, due to the lack of extensive practice of the European Commission on Human Rights and the Human Rights Court. It is noted that for a long time in a significant number of complaints the Convention body has come to the conclusion that the issues raised in the complaints, might be considered through the prism or Art. 10, as they concerned freedom of expression, or fell within the limits of Art. 11 of the Convention, which guarantees freedom of assembly and association. At the same time, the values protected by Art. 9 are related to those ones, which are provided in Art. 8 and demand the respect for privacy. It is also closely linked to the right of parents to provide such education and training as it is consistent with their religious and ideological beliefs, as guaranteed by Art. 2 of the First Protocol to the Convention.This article illustrates the fact that the conventional understanding of these complex, deep and multifaceted concepts at the present stage is formed with the development of the case law of the European Human Rights Court, which in its activities is guided by the principle of effective and dynamic interpretation of conventions and other related principles, which ensures the protective mechanism effectiveness. As the time is extended, the Court case-law has developed an approach that allows to assess the views that the petitioners plan to benefit from the protection of the Convention for the Protection of Human Rights and Fundamental Freedoms. Such views in the meaning of Art. 9 must, first of all, be to some extent \"convincing, serious, holistic and meaningful\" and, secondly, be \"compatible with human dignity\".Taking into consideration the compiled content of the right guaranteed by Art. 9, viz. that it contains two aspects such as forum internum (internal) and forum externum (external), the article notes that regulation can be involved only in the case of forum externum. As long as liberty of thought, conscience and religion remains within a human being, this right is considered to be absolute. The state has a negative obligation not to interfere in such a right.In the framework of this article, the author considers it appropriate to state the position of the European Union on the attitude and ways to effectively address these issues. As the subject of international law and one of the most influential international organizations based on the values of human dignity, freedom, equality and respect for human rights (Art. 2 of the Treaty on European Union), the EU advocates for their real protection, which requires the development of specific legal instruments.Therefore, both the EU internal and international","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"113994431","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}

{"title":"Declaratory Theory of Common Law: Past and Present","authors":"Олексій Віталійович Пушняк","doi":"10.21564/2225-6555.2020.18.216793","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.18.216793","url":null,"abstract":"The aim of the article is to analyze doctrinal views on the role of judges in lawmaking in common law systems – in terms of declaratory theory of common law, including the transformation of views on declaratory theory, clarify its current meaning and place in the doctrine and practice of common law.The article provides the key provisions of the declaratory theory, criticism of supporters of law-making theory, as well as analysis of the views of opponents of the complete denial of the essence of this theory. Attention is paid to certain factors that contributed to the theory in the past - the role of customs and ideas of reason, justice in the history of the emergence and formation of common law. The connections of the given theories with different approaches to legal understanding are also shown.The author explores the modern attitude towards the declaratory theory and the possible practical application of some of its constituent ideas. In particular, it is analyzed to which extent the activities of modern judges continue to be and is seen as an application of the existing law, rather than as the creation of a new one. In this regard, attention is paid to the role of the law principles in the justification of court decisions. In addition, the use of retrospectivity of common law has been traced, which is widely believed to be a legacy of this theory.The article concludes that the statements about the attribution of declaratory theory to the past are categorical and exaggerated. Despite rejecting its key idea and acknowledging that the courts are in one way or another creating common law, it to some extent continues to retain its connection with the ideas of declaratory theory in a rethought form. This connection can be traced in the fact that the norms created by the courts are usually a moderate development of the current law, the specification of its principles, and thus have retrospectivity","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"78 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114285549","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}

{"title":"Judicial mechanisms for overcoming difficulties in resolving a dispute in the absence of a rule of law or inconsistency in its application","authors":"О. А. Сурженко","doi":"10.21564/2225-6555.2020.18.217648","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.18.217648","url":null,"abstract":"The article considers the issues of the possibility of using such legal instruments as judicial mechanisms for overcoming difficulties in resolving disputes in the absence of an appropriate rule of law or inconsistency of its application. An attempt has been made to trace the tendency of courts to turn to analogy of law and analogy of law, as well as to broader interpretation and application of doctrines. It is concluded that the use of a variety of legal instruments provided by the Civil Code of Ukraine and judicial practice makes it possible to properly exercise and protect subjective civil rights. In the absence of full-fledged normative regulation, when considering cases, one should use such approaches as analogy of law and analogy of law, doctrine, interpretation. It is indicated that the proper interpretation of the norms of law is one of the conditions for their application in accordance with the needs of society, while giving rise to both the appropriate for the settlement of the problem, and legal means of their resolution. However, there is often a need for an analogy of law or analogy of law if the rules of law do not meet the conditions of formal certainty. It is shown that using a wide range of methods for solving problems arising from inappropriate or insufficient legal regulation, it is possible to achieve a useful legal effect. At the same time, it was noted that one should not overload the laws with unnecessary legal mechanisms, the judicial practice copes with this quite effectively","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-12-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122052257","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}

{"title":"Оbjective arbitrability of antitrust disputes in Belarus and abroad","authors":"А. С. Данилевич, Н. Г. Маскаєва","doi":"10.21564/2225-6555.2020.17.206533","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.17.206533","url":null,"abstract":"The article discusses approaches to objective arbitrability of antitrust disputes in the European Union, other foreign states and the Republic of Belarus. Particular attention is paid to the landmark cases Mitsubishi v. Soler Chrysler-Plymouth, Eco Swiss China Time Ltd v Benetton International NV, CDC v. Akzo Nobel. Based on the results of the analysis made, the authors conclude that, in the absence of a direct prohibition on the consideration of antitrust disputes in the Belarusian legislation by arbitration and lack of law enforcement practice in this area, arising of such disputes and inclusion of arbitration clauses on their settlement in contracts largely depend on the level of the development of the market as well as on the position of arbitration courts. They do not exclude the possibility of revising the national legislation on arbitration so that it included direct provisions on arbitrability of antitrust disputes as it is made in Lithuania and Sweden, at the same time admitting that for a positive attitude to arbitrability of antitrust disputes in the Republic of Belarus the appearance of relevant jurisprudence in this sphere will be enough","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115603803","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}

{"title":"Modern understanding of criminalistic tactics: concepts, features, subject and tasks","authors":"Віктор Михайлович Шевчук","doi":"10.21564/2225-6555.2020.17.206490","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.17.206490","url":null,"abstract":"The article is devoted to the study of the problems of modern understanding of criminalistic tactics, its subject and tasks. The scientific approaches to the studied concepts of «criminalistic tactics» was analyzed. The definition of criminalistic tactics is offered, its essential features are singled out. It ’ s substantiated that often in the special and educational literature scientists limit themselves to considering the general provisions of criminalistic tactics and coverage of tactics of separate investigative (search) actions, that is to say problems of investigative tactics, which does not really reflect the full content and structure of this section. It is proved that criminalistic tactics should study the tactics of all participants in criminal proceedings and therefore should be distinguished and investigated the following sub-branches of criminalistic tactics: investigative tactics, judicial tactics, investigative tactics, prosecutorial tactics, professional defense tactics, criminal tactics, etc. In addition, the definite essence of the concept of criminalistic tactics should take into account, on the one hand, the line of conduct of the subjects of criminal proceedings, which carry out pre-trial investigation, trial and defense (investigator, detective, prosecutor, lawyer, court (judge), etc.), whose activities are aimed at collecting, recording, seizing and examining evidence, and on the other hand − the behavior of participants in criminal proceedings, which are subject to such tactical and criminalistic recommendations and means of criminalistic tactics (suspects, accused, victims, witnesses, official witnesses, etc.) taking into account the possibilities of tactical influence on such persons in order to solve criminalistic and other tasks of criminal proceedings. It`s substantiated that criminalistic tactics should be considered in three aspects: scientific, practical and educational-didactic. It’s seen that the consideration of criminalistic tactics in such three areas is quite reasonable and can be used as a basis for understanding the essence of the concept under study. The modern tendencies of development of criminalistic tactics are analyzed, its modern understanding, a subject and tasks taking into account various kinds and directions of activity for the purpose of the effective decision of problems of criminal proceedings are defined. Scientific approaches and author’s proposes on the decision of researched debatable problems of criminalistic tactics are formulated","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114560037","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}

{"title":"Current problems of realization in Ukraine of the right to transplantation from a dead donor","authors":"Марія Анатоліївна Тіхонова, Маргарита Андріївна Кривородько","doi":"10.21564/2225-6555.2020.17.202305","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.17.202305","url":null,"abstract":"Organ transplantation is the miracle of the twenty-first century, the salvation and hope of humanity. Today, transplantology has become the standard of care for many diseases in developed countries. The social significance of donation and transplantation is determined by the life-saving function, the implementation of which requires proper legal regulation. Currently, the issue of transplantation in Ukraine is regulated, in particular, by the Law of Ukraine «On Application of Transplantation of human’s Anatomical Materials», adopted in 2018. The explanatory note to the current Law was stated the need to amend the current legislation. It was due to the desire to ensure the implementation of the constitutional and natural human right to life and health. It was also noted that the successful experience of  transplantation in the progressive countries of the world, the increase in the number of patients for whom organ transplants are the only way to save lives, prompt legislation in this area to be brought into line with the standards of our century. It was believed that Ukraine should take the issue of approach to organ transplantation by legislatively establishing the presumption of «opting (or contracting) out» to organ transplantation after the death of the donor However, according to the current Law of Ukraine “On applying the transplantation of anatomical materials to a person”, every adult person has the right to give written consent or consent to the removal of anatomical materials from his body for transplantation and / or the production of bioimplants after determining his condition as a permanent death or biological death). That is, the presumption of «opting in» transplantation after the death is in Ukraine. The proposed article is devoted to the analysis of the current Law of Ukraine «On the application of transplantation of anatomical materials to a person» and the study of the realization of the recipient’s right to transplant from a deceased donor","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127734899","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}

{"title":"Parole from life imprisonment: Ukrainian realities","authors":"О. В. Ткачова, Нікіта Сергійович Павлов","doi":"10.21564/2225-6555.2020.17.206472","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.17.206472","url":null,"abstract":"","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130991845","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}

{"title":"Legal problems of realization of public relations on creation and use of advanced technologies","authors":"Надія Костянтинівна Гольєва","doi":"10.21564/2225-6555.2020.17.206343","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.17.206343","url":null,"abstract":"","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125537503","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}

{"title":"Organization of exchange activities in the EU and the UK: a comparative legal approach","authors":"Едуард Гаврилович Бойченко","doi":"10.21564/2225-6555.2020.17.206310","DOIUrl":"https://doi.org/10.21564/2225-6555.2020.17.206310","url":null,"abstract":"The article examines the models of organization of exchange activity of economically developed countries of the European Union and Great Britain, analyzes the legal framework of stock exchanges in the respective countries, similar features and differences of legal regulation of the European stock market, the impact of EU regulations and directives, as well as inner (local) rules of stock exchanges and stock exchange associations for the development of relations in the field of trading by securities and other financial instruments in these states, which, in turn, contributes to improving of investment climate in the economies of these countries. Initially, it is pointed at the changes in the structure of the European stock market, the volume of trading operations carried out on the stock exchanges of the EU, due to the Brexit procedure and the pandemic caused by COVID-19. It is further noted that European stock exchanges tend to combine both management and resource potentials, and the regulation of their activities is characterized by a certain unification of European legislation and its liberalization, which is expressed in the gradual granting of stock market entities an increasing amount of self-regulatory powers and self-control. This approach has a generally positive impact on the growth of EU stock exchanges, increasing the level of quotations of their indices on the international stock market, maintaining the credibility as of reliable and safe sources of investment. At the same time, despite the harmonization of European legislation through the adoption of regulations and directives, each European country leaves certain features of its own model of organization of exchange activities. The article describes the features of organizational and legal regulation of stock exchanges, mainly in five European countries (UK, Germany, France, Sweden and the Netherlands), as well as the European stock exchange association Euronext. There is a final conclusion that the legislative deregulation of exchange activities in the EU and the UK has significantly improved the financial market in these regions. Granting greater freedom of regulation to stock exchanges and their associations makes the system of stock exchange regulation more efficient and flexible, able to adapt to changes in the stock market faster than would have happened in terms of legal regulation. The implementation of such an approach in Ukraine (especially the French model) can most effectively influence the development of the Ukrainian economy","PeriodicalId":285666,"journal":{"name":"Theory and practice of jurisprudence","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125451250","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}