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

{"title":"Recodification of the Civil Code of Ukraine and modernisation of the Civil Code of the Republic of Kazakhstan: A comparative analysis of the main ideas","authors":"N. Kuznietsova, M. Suleimenov, F. S. Karagusov","doi":"10.37635/jnalsu.28(4).2021.190-199","DOIUrl":"https://doi.org/10.37635/jnalsu.28(4).2021.190-199","url":null,"abstract":"Systematic updating of the civil legislation of Ukraine and modernisation of the civil legislation of the Republic of Kazakhstan are time-consuming tasks as evidenced by the analysis of changes that were made to the civil codes of Ukraine and the Republic of Kazakhstan and their law enforcement practice. Work on updating civil legislation requires an assessment of the current state and prospects of socio-economic development of Ukrainian society and the state, in particular the development of such an important component as the national legal system, which is presented in the concept of updating the Civil Code of Ukraine. It is crucial that the main areas of the concept orient the development of civil law in Ukraine, considering the current experience of recodification of civil codes of other states within the continental legal family. Considering that civil legislation is also being modernised in the Republic of Kazakhstan, the purpose of this study is to compare the main ideas of recodification of the Civil Code of Ukraine and modernisation of the Civil Code of the Republic of Kazakhstan to establish a systematic approach and a unified concept for the development of civil law and form a clear guideline for the improvement of civil legislation. The study analyses the areas of updating the civil legislation of Ukraine and the Republic of Kazakhstan based on both general (historical, comparative, system analysis) and special (specific-sociological, formal legal, legal-technical, etc.) methods. One of the most reasonable ways to ensure continuity of legal regulation of civil relations and ensure the modernisation of the legal basis for the development of the sphere of social and legal relations in the long term is the approach that should preserve all the achievements of existing civil codes, considering modern European approaches and the specific features of civil and business turnover","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":"41782041","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 entities' crime prevention: Foreign experience and prospects of application in Ukraine","authors":"D. Skoromnyi","doi":"10.37635/jnalsu.28(3).2021.301-310","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.301-310","url":null,"abstract":"The relevance of the problem under study lies in the fact that crime among legal entities is currently increasing in the countries of the world. This phenomenon is extremely dangerous, because corporate crime is associated with the commission of economic crimes – the legalisation of illegally obtained income and corruption, both of which negatively affect the economy of an individual state and the global economy. To prevent crime among legal entities, governments of countries need to take measures aimed at countering corporate crime, take advantage of technological advance in detecting and preventing offences among legal entities. The purpose of this study is to identify the features of measures to prevent corporate crime in foreign countries, to analyse the prospects for applying the experience of other states in developing their effective counteraction measures. Innovative approaches and methods that will increase the effectiveness of measures to combat corporate crime were also proposed. The leading methods employed in this study are theoretical: the study of scientific literature, as well as regulatory documents to clarify the state of the problem under study. Analysis, synthesis, comparison, generalisation, and modelling were used, which allowed describing the terminology. Furthermore, the system method, dialectical, and historical analysis methods were used in the study of regulations, also including such special methods as the method of legal interpretation, the method of legal forecasting. The result of the present paper is the identification of the importance of corporate crime prevention, effective measures that are applied to legal entities to detect and prevent corporate crime. As a result of this study, possible measures aimed at preventing corporate crime were proposed, considering the positive experience of foreign countries. Having analysed the state of corporate crime in other countries of the world, the authors conclude that Ukraine should implement measures to prevent crimes among legal entities to reduce the number of offences and increase the level of the national economy","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45927732","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":"Genesis of the concept of correctional punishment: From antiquity to modern times","authors":"O. Yarmysh, O. Sokalska, Volodymyr Ye. Kyrychenko","doi":"10.37635/jnalsu.28(3).2021.162-175","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.162-175","url":null,"abstract":"The article examines the genesis of the idea of correctional punishment. The authors analyse the concepts and views on the purpose of punishing Plato, Roman lawyers, European humanists, as well as English prison reformers of the XVIII century. The relevance of this topic for domestic legal science is due to the ongoing transformation of approaches to determining the purpose of punishment, the revision of strategies in the field of punishments in foreign penology and the development of correctional policy, taking into account new goals. The era of correctional punishment, admittedly, was the XIX century. The basis of penitentiary discourse during this period was the belief that with the help of a proper prison regime, segregation, humane treatment and spiritual care, it would certainly be possible to correct convicts. Although the ideas of correctional punishment appear in ancient times and acquire their practical implementation in the medieval Christian tradition of European states, the idea of the primacy of English and American prison reformers in the establishment of penitentiary systems prevails in historiography. An unbiased analysis of knowledge systems and the rejection of the methodology of ideological bias allowed proving that the penitentiary systems of the XIX century only developed the models of prison discipline that began in previous periods. In fact, there was a revival of the ancient paternalistic concept of correctional punishment, supplemented by a religious doctrine that provided for the influence not on the body, but on the soul of the offender to repent, correct and, as a result, return to society. At the end of the XVIII century, the secular authorities adopted these disciplinary models. They will be most widely implemented in correctional and penitentiary houses in England during the prison reform of the 70s and 90s and will later become the basis for the formation of penitentiary systems that will be implemented in practice in most countries of the world during the XIX-early XX centuries","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43938280","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":"Interrogation of minor and juvenile witnesses in criminal proceedings: Current state and prospects for improvement","authors":"O. Kaplina, O. Kuchynska, Oksana M. Krukevych","doi":"10.37635/jnalsu.28(3).2021.268-276","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.268-276","url":null,"abstract":"The relevance of the study is determined by the need to improve the procedure for obtaining information provided by minors and juvenile witnesses during interrogation regarding the circumstances known to them in criminal proceedings at the litigation stage, while ensuring the best respect for the children's interests. The authors employed philosophical, general scientific, and special scientific methods of cognition, which allowed conducting a detailed analysis of the procedure for interrogating minor and juvenile witnesses at the litigation stage. To develop scientific proposals for improving the legislative regulation of the interrogation of minor and juvenile witnesses during the litigation, the study defined the principles of child-friendly justice that must be observed during this procedural action, as well as the guarantees stipulated by the Criminal Procedural Code of Ukraine and aimed at implementing international standards for ensuring the rights of minors in criminal proceedings. The authors of this study state that the legislative definition of requirements imposed separately on the teacher, psychologist, and doctor involved in the interrogation of minor or juvenile witnesses, as well as the procedure for involving such persons by the court and the pre-trial investigation body, would considerably improve the quality of the required aid to minor witnesses and would meet international standards. The study analyses the international practices concerning the introduction of the institution of representation in the litigation of pre-recorded testimony of minors and juvenile witnesses. The authors established that the introduction of such an institution is absolutely justified and will have an exceptionally positive effect both for minor and juvenile witnesses, as well as for the process of proof, and can be implemented in Ukrainian legislation. Scientific proposals have been developed to improve the legislative regulation of the interrogation of minor and juvenile witnesses during court proceedings","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46849044","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":"Taking of biological samples for expertise under the legislation of Ukraine and its conformity with EU standards","authors":"V. Rohalska, O. Bronevytska, H. Boreiko, Iryna S. Shapovalova, I. Serkevych","doi":"10.37635/jnalsu.28(3).2021.290-300","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.290-300","url":null,"abstract":"The analysis of investigative and judicial practice shows that some lawyers regard the refusal of a person to provide voluntarily biological samples for examination as an execution of his/her right not to testify against him/herself. Analysis of the provisions of separate Judgements of the European Court on Human Rights allows us to conclude that the physical integrity of a person is covered by the concept of “private life” protected by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and concerns the most intimate aspects of private life, and compulsory medical intervention, even insignificant, constitutes an interference with this right. Therefore, the criminalprocedural characteristic of obtaining of biological samples for expertise is given in the article. The authors analyzed and answered the questions: which particular samples should be attributed to biological ones, and whether it is possible to refuse to voluntarily granting of biological samples for examination in accordance to the realization of the right not to testify against him/herself. The possibility of obtaining of biological samples for examination from a person who is not a party to criminal proceedings or has not acquired procedural status has been considered. The article as well deals with the legality of obtaining of samples for examination before submitting information into the Unified Register of Pre-trial Investigations. The algorithm of actions of obtaining of biological samples for examination, including the compulsory order, is proposed. The following general scientific research methods were used: the dialectical method of legal phenomena, with the help of which the concept and the legal nature of biological samples for examination were studied; the comparative method – in the process of comparing the norms of the Criminal Procedural Code of Ukraine (CPC) with the norms of the European Court of Human Rights (ECHR) and decisions of the ECHR, etc.","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41329031","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":"Cyberbullying as a way of causing suicide in the digital age","authors":"O. Amelin, Tamara M. Kyrychenko, B. Leonov, V. Shablystyi, N. V. Chenshova","doi":"10.37635/jnalsu.28(3).2021.277-289","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.277-289","url":null,"abstract":"The fundamental basis of legal systems based on common law is that people have free will and are accountable for their actions. Particularly difficult and controversial issues of criminal liability arise when one person instigates another to commit suicide, and, accordingly, issues of free will, causality, and responsibility become increasingly important. The reasons for committing suicide are primarily socio-economic in nature. A certain proportion of suicides are those that occur due to the negative impact of third parties on the victims. In this case, the investigative action must establish that the perpetrator displayed intent in his or her actions in such a way as to expose the victim to a high risk of serious psychological harm. In the era of digital transformation, special attention must be paid to the relationship of the criminal with the victim, carefully studying the social networks of both, taking into account the fact that a typical participant in Internet communication leading to suicide is emotionally unstable, subordinate, insecure, secretive, unassertive teenager, and this category is represented to a greater extent by a female audience. The scalability of digital interventions allows to penetrate populations beyond the reach of conventional mental health care. Thus, there is a need for the use of digital Internet interventions, including to assist in the work of law enforcement agencies in the detection of Internet communities that instigate and incline people to commit suicide. It is concluded that the era of digital transformations is constantly evolving, social networks are becoming more accessible for both criminals and their victims, as a result of which the corresponding requirements for the investigation and subsequent prosecution for incitement to suicide become more complicated. The scientific proposals of legal scholars presented in the study are aimed at solving the corresponding problems","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47725884","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":"System signs of statutory regulation of occupational health and safety in the Republic of Poland","authors":"V. Yarotskiy, Yuriy Dreval, S. Zaika","doi":"10.37635/jnalsu.28(3).2021.238-247","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.238-247","url":null,"abstract":"The study analyses the question of the essence and structure of statutory regulation of occupational health and safety in the Republic of Poland. The relevance of the subject under study is primarily explained by the fact that in Poland, against the background of undoubted economic success, there is an intensive process of improving the legal and organisational foundations of the corresponding range of social and labour relations. The study of this issue is of paramount importance for those countries that had approximately the same “starting conditions” with Poland – the recurrence of state socialism, which devalued the principles of a market economy and the possibility of full protection of working people. The purpose of this study is to present and substantiate the systemic features of occupational health and safety in the Republic of Poland in difficult present-day conditions. The study is based on understanding the methodology as a complex integrated system of perception of reality and scientific cognition, and conducted based on the necessary scope of methods, namely: method of system analysis, historical legal method, structural-functional method, comparison method, special comparative legal method, and cross-temporal analysis. The authors of the present paper noted that the statutory regulation of occupational health and safety in the Republic of Poland has all the features of systemic nature. Most importantly, this is explained by the harmonious correlation of two components: purely statutory and legal support of the corresponding share of social and labour relations. Notably, the statutory regulation of occupational health and safety is undergoing continuous improvement depending on current challenges and threats. For countries that have been united with Poland in the recent past in the form of state socialism, the experience of establishing the work of tripartite participants in social dialogue (government agencies, employers' and workers' representatives) is also important. The scientific value of the present paper primarily lies in the necessity and feasibility of analysing the systemic features of statutory regulation of occupational health and safety. In this case, it is important to use both the method of system analysis and a clear distinction between the concepts “system research” and “research of systems” (the latter in this case appears both as a system of legal regulation of occupational health and safety and as a complex set of public authorities and other organisations involved in the important task of ensuring due occupational health and safety)","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47751944","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":"Integration of legal understanding as a methodological issue","authors":"P. Rabinovych, S. Rabinovych, O. Pankevych","doi":"10.37635/jnalsu.28(3).2021.47-55","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.47-55","url":null,"abstract":"The relevance of the study is conditioned upon the pluralisation of the ideological, philosophical, and methodological foundations of legal science and attempts to theoretically overcome the competition of “positivist” and “natural” approaches to understanding law as part of an integrative legal understanding taking place against the background of such pluralisation. The purpose of the study is to identify the epistemological difficulties in constructing integral concepts of legal understanding, suggest solutions for them, and justify the option of integrative understanding of law based on a combination of dialectical and need-based methodological approaches. Main research methods. Based on dialectical logic, the essence of integrative legal understanding is covered as an attempt to synthesise contradictory approaches to understanding law, the process of integrating legal understanding is interpreted as removing contradictions in the development of legal phenomena, and integration appears as including individual moments of such development in the dynamic integrity. Based on the need-based approach, the study justifies the criterion for understanding certain phenomena as legal. Importance of the present study. It is proved that the integration of different legal understanding is a task that can be performed based on dialectical rather than formal logic, meanwhile preserving differences and contradictions between the combined conceptual elements. The study proves that during upon satisfying the needs, the properties of certain phenomena are integrated into human existence, acquiring the status of vital, and therefore normatively significant components of such existence. Therefore, the rule of law becomes the result of activity-practical integration of the phenomena serving as necessary components of human life in society","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69941302","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 grounds for restricting access to information: a philosophical aspect","authors":"O. Omelchuk, Mariia Muzyka, M. Stefanchuk, I. Storozhuk, Inna A. Valevska","doi":"10.37635/jnalsu.28(3).2021.64-73","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.64-73","url":null,"abstract":"The rapid spread of the Internet and communication technologies raises the issue of access to information, especially access to information via the Internet. The amount of information on the network is constantly increasing, and at the same time more and more efforts are being made to limit users' access to it to some extent. The more restrictions state bodies create in this area, the more efforts are made to circumvent or violate these prohibitions. Free access to information in a democratic society should be the rule, and restriction of this right – the exception. These restrictions should be clearly defined by law and applied only in cases where legitimate and vital interests, such as national security and privacy, need to be respected. The main purpose of this study is to consider the legal and socio-philosophical aspects of access to information. Restricting access to documents as media has been practiced since ancient times. The study highlights the existing inconsistencies and lags in the implementation of the principles of exercise of the right to information in Ukraine at the level of laws and subordinate legislation. The study classifies information according to the nature of restrictions (exercise) of constitutional rights and freedoms in the information sphere. It was discovered that the legislation of Ukraine does not systematise the list of confidential information in a single regulation in contrast to the Russian Federation and provides the main types of confidential personal information. It was found that restrictions on any freedoms and human rights, including in the information space, can be established with the help of various regulators, the dominant among which are the following levels of implementation: legal (legislative); moral self-consciousness of society; autonomy of the person. Features and spheres of action of regulators of restriction of freedoms and human rights are described. To restrict access to information, various methods are used to protect it from unauthorised receipt, which can be divided into two groups: formal and informal","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45755068","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":"Types of law-making powers of the Ukrainian people","authors":"Anatoliy M. Kolodiy, O. Kolodiy","doi":"10.37635/jnalsu.28(3).2021.36-46","DOIUrl":"https://doi.org/10.37635/jnalsu.28(3).2021.36-46","url":null,"abstract":"The relevance of this problem is considered in the fact that in modern conditions of the state's process of developing a sovereign and independent, democratic, social, and legal state, the people's awareness of its place and role is one of vital aspects. The Ukrainian people's awareness of their rights and obligations, in this case law-making ones, will contribute to a real opportunity for the people to take part in the management of state affairs. Despite the fact that the problem of the powers of the Ukrainian people is extremely relevant at this stage of the Ukrainian history, it is understudied by Ukrainian researchers. Therefore, considering the above, this study is investigates such types of law-making powers of the Ukrainian people as the rights to: people's initiative, and within its framework – people's legislative initiative and people's referendum initiative; people's veto; people's survey, including regarding regulations; people's examination of regulations and draft regulations. The purpose of the present study is to consider theoretical material concerning the state of possibility of using the above-mentioned types of law-making powers of the Ukrainian people, as well as foreign practices in their implementation. The methodological framework of this study included an integrated approach, which involves a combination of numerous philosophical, general scientific, and special scientific methods. Based on the obtained conclusions and generalisations, the study aims to develop original proposals and recommendations for improving national legislation on this matter","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45468834","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}