Journal of the National Academy of Legal Sciences of Ukraine最新文献

{"title":"Practice of applying international principles in private law relations","authors":"Olga T. Tur, M. Kravchyk, I. Nastasiak, M. Sirant, N. Stetsyuk","doi":"10.37635/jnalsu.28(4).2021.223-231","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.223-231","url":null,"abstract":"National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48070625","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":"Strengthening of the institutional capacity of the Constitutional Court of Ukraine in the conditions of modern society as a scientific and practical problem","authors":"Oleksandr V. Skrypniuk, Olena Tomkina","doi":"10.37635/jnalsu.28(4).2021.104-112","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.104-112","url":null,"abstract":"Modern scientific research of the problems of constitutional jurisdiction in Ukraine is conditioned not only by their established theoretical and practical significance for legal doctrine and law enforcement. In the context of modern global challenges and threats that inevitably affect the domestic legal order of Ukraine, taking into consideration the national problems in the field of human rights and freedoms, interaction between state and society, lawmaking, law enforcement and administration of justice, etc., the need to strengthen the institutional capacity of the Constitutional Court is an important scientific and practical task. It is aimed at strengthening the stability of the institution of constitutional jurisdiction in difficult sociopolitical situations, restoring public confidence in the Constitutional Court and the state in general, improving the legal protection of the Constitution of Ukraine and ensuring its supremacy, reviving respect for the Basic Law and the rule of law, accommodating the functioning of the Constitutional Court to the best international standards of constitutional jurisdiction. The purpose of the article is to substantiate the study of the problem of strengthening the institutional capacity of the Constitutional Court of Ukraine as a complex scientific and applied issue, which provides for its solution in the interdisciplinary scientific space. General scientific research methods, sociological method, structural-functional, as well as interdisciplinary approaches, are used. The institutional capacity of the Constitutional Court of Ukraine is considered as an institutional property of a body of constitutional jurisdiction, which reflects its organisational and functional ability to ensure the implementation of its tasks, functions, and powers under certain conditions and resources. Indicators of the institutional capacity of the Constitutional Court are efficiency, stability, and adaptability to changes. Strengthening the institutional capacity of the Constitutional Court should take place through legal support for strengthening its independence from political influence, improving mechanisms for selecting candidates for judges, modernising constitutional proceedings, developing a mechanism for the Court's interaction with the public, and so on. The main directions of the study of the institutional capacity of the Constitutional Court are determined","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44575682","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":"Object of criminal offenсe: Modern interpretations","authors":"M. I. Panov, S. Kharytonov, V. Haltsova","doi":"10.37635/jnalsu.28(4).2021.262-269","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.262-269","url":null,"abstract":"The struggle of law enforcement and judicial bodies of the modern rule of law, as well as the entire society with the manifestations of crime is necessarily connected with the need for an in-depth study of crimes (hereinafter referred to as criminal offences), their essence, the structure of the constituent system elements, forms of external manifestation, which is a prerequisite for the development of the latest effective means of countering criminal offences. Among these issues, the object of a criminal offence is of particular importance, as it has a significant impact on the determination of the social characteristics of the offence and largely determines its actual objective and subjective characteristics. Meanwhile, there is no unity among scientists in the interpretation of the object of offence. The problem has therefore not yet been sufficiently studied. The purpose of the study is a scientific analysis of modern views on the object of a criminal offence and the establishment of a scientifically based content and essence of this concept. To achieve this goal, the following methods were used: dialectical, historical and legal, dogmatic, comparative, system-structural, legal hermeneutics. The article analysed the existing scientific approaches (positions) regarding the definition of the object of a criminal offense, which were systematised and reduced to two generalised groups: 1) ontological, which includes positions that recognise the object of a crime (criminal offence) as protected by criminal law public relations in various modifications; 2) axiological, which includes the interpretation of the object as values and related definitions: benefits, and individual interests. The authors made a reasoned conclusion that the object of a criminal offence is social relations that arise and exist in society about its social values, which are protected by the law on criminal liability","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44966317","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":"Human rights violations by war crimes: Theory and practice","authors":"V. Pylypenko, Khrystyna T. Sliusarchuk, P. Pylypyshyn, Svitlana V. Boichenko","doi":"10.37635/jnalsu.28(4).2021.270-278","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.270-278","url":null,"abstract":"This paper provides a comprehensive study of theoretical and practical issues of violation of human rights by war crimes, protection of legitimate interests of individuals in national and international law as a result of such violation. The purpose of this study is a comprehensive analysis of theoretical and applied issues related to the protection of violated rights and legitimate interests of individuals in public international law as a result of the commission of war crimes, and the formulation of scientifically sound proposals for improving the current legislation of Ukraine and the practice of its application in this area. The paper analyses the current scientific opinions and legislation on the regulation of illegal acts and liability for damage caused to victims as a result of violation of human rights and fundamental freedoms by war crimes. Furthermore, the existing forms, methods, and means of protecting the rights and legitimate interests of such persons in Ukraine and in the international arena were determined. The paper also provides a comprehensive study of the existing concept, legal nature and main features of war crimes and their legal regulation in Ukrainian legislation. Legislative amendments to the regulations governing this issue are proposed and the study justifies the position regarding the existence of an exclusively judicial procedure for resolving issues of human rights violations by war crimes, the result of which should be the adoption of a court decision. As a result of the study, the current scientific statements and achievements are clearly identified, as well as those that have emerged due to the constant development of public relations and substantial changes in international relations of various states, which causes armed conflicts and war crimes. One of the achievements of the scientific study is the proof of the importance of the problem of violated human rights in modern society and the extreme need for its research. After all, modern legislation requires substantial changes and improvement of the existing provisions with the subsequent possibility of their practical application","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46464192","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":"Formation of the Idea of Natural Law in Ancient Greece and Ancient Rome","authors":"Anatolii Zaiets, Z. Pohoryelova","doi":"10.37635/jnalsu.28(4).2021.15-28","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.15-28","url":null,"abstract":"The article analyzes the formation of the idea of natural law, which has an important theoretical and applied significance, as it makes it possible to better understand the essence of law, its connection with egalitarian and humanistic teachings. The research is based on modern philosophical worldview approaches, such general scientific research methods as axiological, anthropological, phenomenological, comparative-historical, comparative-legal, system-structural, hermeneutical, functional, institutional, as well as formal-legal method are used. The article examines the works of representatives of the Milesian school founded by Thales in the first half of the 6th century BC, whose analysis of human consciousness, human ability to create, transform the world, formulate ideas and implement them led to the idea of a universal Logos, a universal divine Mind, and the Law of Nature. The article reveals the contribution of sophists to the development of the idea of the natural law who justified the differences between natural and human law, defended the idea of equality of all people, called for not discriminating against citizens, depending on their origin, and denied slavery. The role of representatives of the stoicism school in substantiating the idea of natural law based on awareness of the fundamental difference between human nature and nature, justifying the existence of the unchangeable law of nature (lex naturale) in the form of common sense, equality of all people, recognition of slavery contrary to human nature, the need for recognition of human rights by law to preserve human dignity is highlighted. The article examines the influence of the ideas of the philosophers of Ancient Greece on the development of Roman law, the role of the Scipio group in this influence, and the essence of the then rational understanding of natural law as a true law, namely, common sense, which, in accordance with nature, concerns all people, is unchangeable and eternal","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41348053","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":"Improvement of state control of food safety taking into account the requirements of the legislation of the European Union","authors":"O. Krupchan, Y. P. Burylo, V. V. Vasylieva","doi":"10.37635/jnalsu.28(4).2021.200-209","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.200-209","url":null,"abstract":"The article is devoted to the issues of improving the legal basis of state control of food safety in the context of harmonisation of national legislation of Ukraine with the relevant legislation of the European Union. The relevance of the study is due to the need to improve the effectiveness of state control of food safety to guarantee European standards for the protection of human health. The purpose of the study is to clarify the structural features of legislation related to state control of food safety, identify practical issues of legal regulation of state control of food safety and develop ways to solve them. The methodological basis of the research consists of the comparative legal method, historical-legal and dialectical methods, methods of analysis and synthesis, system-structural and formal-legal methods. It was found that food legislation and feed legislation have a common goal of legal regulation – the protection of human health, although from a formal point of view they are different areas of law. Insufficient legal certainty of such grounds for unscheduled inspections as reasonable suspicion of non-compliance with legal requirements is due to different approaches to the formulation of powers of regulatory authorities in Ukraine and the European Union. In order to avoid corruption factors during state control of food safety, it is better to introduce information and communication technologies, and not resort to incomplete harmonisation of the legislation of Ukraine with the legislation of the European Union. The introduction of the European concept of food fraud in Ukraine requires its coordination with criminal and administrative legislation, as well as the creation of the necessary organisational and legal conditions for identifying relevant offenses during state control of food safety","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48530984","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":"Theoretical foundations of constitutional consolidation of the principles of social state and law","authors":"Roman Lutskyi, R. Zvarych, V. Skomorovskyi, L. Korytko, O. B. Oliynyk","doi":"10.37635/jnalsu.28(4).2021.113-121","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.113-121","url":null,"abstract":"The authors of this article analysed doctrinal provisions, as well as Ukrainian constitutional legal practice. The social component of the system of functions of the modern state was studied. The present article analyses the activities of states where an intellectual, political, and practical breakthrough was made in solving the problem of state functions in the context of socio-economic reform. Attention is drawn to the specifics of the implementation of social activities of the Ukrainian state. The methodological framework of this study includes the main general scientific methods, namely socio-economic methods and techniques of the empirical level of cognition, the method of systematic analysis of numerous theoretical provisions on positive law, historical and statistical methods, the method of comparisons and analogies, generalisation methods, an analytical review of the available scientific publications on the subject under study. Furthermore, scientific methods in the field of legal science were also employed, such as normative-logical, comparative legal, historical legal. It was concluded that a social state is a state whose policy has a priority social orientation, which is expressed in the appropriate service of civil society by the state, the creation of necessary and sufficient conditions for the realisation of economic, social, and cultural human rights, the guarantee of its social protection and social security, based on the socio-economic capabilities of the state based on the principles of justice, proportionality, and a harmonious combination (balance) of public and human interests","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69941318","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":"Ukrainian model of lustration: Legal specificities and social consequences","authors":"Volodymyr Harashchuk, I. Georgiievskyi, O. Deineko","doi":"10.37635/jnalsu.28(4).2021.169-180","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.169-180","url":null,"abstract":"The purpose of this article is a systematic analysis of the legal specificities and social consequences of the Ukrainian model of lustration. Based on the formal-legal method and the method of legal interpretation, the authors study more than 20 international and national “lustration” acts that regulate various aspects of government cleansing. Relying on the results of the legal analysis, the authors develop their periodisation of the stages of government cleansing of legal regulation in Ukraine. The obtained results allow considering the beginning of lustration in Ukraine not as traditionally defined legal prohibitions on holding public service by certain categories of civil servants; but restoration of parliamentary-presidential republic model in Ukraine, power deconcentration, and decentralisation. Using the method of legal modeling, the authors substantiate the feasibility of providing the entire theoretical approach to lustration in a narrow and broad sense. This actualises the study of lustration as a legal phenomenon not only from the standpoint of personal renewal of power, but as a legislative strengthening of democratic principles of public service. The authors emphasise the need to modernise international regulations establishing lustration standards. Based on the sociological research secondary data analysis, the paper identifies such negative social consequences of lustration in the Ukrainian society as the stigmatisation of “lustrated” civil servants, public service deprofessionalisation, and weakening of social cohesion in Ukraine. This work is of practical value for countries in democratic transit, which have the opportunity to ensure a dialectical balance between respect for human rights and the protection of democracy, relying on the peculiarities of the Ukrainian experience","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43700019","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":"National development strategies in terms of ensuring environmental rights and interests: Comparative approach","authors":"A. Getman, H. Anisimova","doi":"10.37635/jnalsu.28(4).2021.250-261","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.250-261","url":null,"abstract":"The study is devoted to scientific and theoretical analysis of the principles of state activity in the development of national policy in the context of ensuring human’s environmental rights and interests, the creation of effective legal mechanisms for their guarantee, exercise, and protection, solving systemic issues in this area. The purpose of the study is a comprehensive examination and analysis of legislation from the standpoint of greening national and foreign policy, national development strategies. The methodological basis of the study is a set of general philosophical, general scientific, special scientific, and legal methods. It is proposed to consider greening as a multifaceted phenomenon. In general, the state environmental policy is a component of state policy, which fixes its strategic goals and objectives, defined for the future, considering environmental factors. It is proved that at the legislative level there should be clear mechanisms for the legal support of integration of environmental policy into sectoral, national, and regional strategies, local action plans, and interaction with civil society institutions, the scientific community. It is argued that modern state environmental policy and further systematisation of environmental legislation should be based on the provisions of environmental law doctrine to consider modern approaches to environmental regulation, integration of environmental requirements and regulations to state planning, sectoral, regional, and local development. Based on conducted research and synthesis, proposals and recommendations for the development of a unified concept of legal policy, in particular, environmental legal policy as its component, also, for the improvement of national regulatory framework (namely by adopting the Concept of systematisation of environmental legislation and modernisation of the contemporary strategy of state environmental policy) are elaborated","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45320091","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":"Administrative-legal bases of functioning of the civil service: Comparative-legal aspect","authors":"O. Horban, V. Bass, O. Drozd, M. Kalatur, K. Shkarupa","doi":"10.37635/jnalsu.28(4).2021.147-156","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.147-156","url":null,"abstract":"The topicality of this article is due to the fact that the civil service is a special element of the governmental system of each state, the effective functioning of which provides the observance of constitutional rights and freedoms of citizens, consistent and sustainable development of the country. The purpose of the article is to conduct scientific research on the functioning and overall reform of government control and civil service in Ukraine and in developed countries of the world. The leading research methods are general scientific and specific research methods, including methods of logic, analysis, comparison etc. The results of this study are a comparative and legal analysis of the civil service institute construction in developed countries of the world, the identification of basic problems and consequences of reforming this field in Ukraine. The significance of the obtained results is reflected in the fact that this study may serve as a basis for outlining future changes to the current legislation of Ukraine on the functioning of the civil service and the protection of the rights and legitimate interests of civil servants","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46683296","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}