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

{"title":"The process of pardoning those sentenced to life sentences and long terms of imprisonment as a criterion for increasing the liberality of the judicial system","authors":"D. Kryklyvets, Yu.V. Kerniakevych-Tanasiichuk, Yuliia O. Fidria, K. Muzychuk, O. I. Sasko","doi":"10.37635/jnalsu.28(2).2021.277-287","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.277-287","url":null,"abstract":"The development of democracy, ensuring the rights and freedoms of citizens are inextricably linked with an increase in the quality and efficiency of the work of penal institutions, during which various types of criminal-executive legal relations arise, change and terminate. Attempts to introduce liberal European values into the everyday life of society made it necessary to modernise the activities of the penitentiary system in accordance with international standards. The need to introduce humane approaches and respect for human dignity in other special standards, which relate specifically to the sphere of the execution of criminal punishments, was noted. The novelty of the research is determined by the fact that the priority direction of this activity should be the process of further improvement of the penal legislation and the practice of its application, the strict observance of human rights and freedoms. One of the directions of these changes should be to improve the mechanisms for realising the right of convicts to imprisonment to a humane attitude and respect for their human dignity, based on progressive forms of ensuring it in accordance with international standards and existing best practices. Practical significance is determined by the fact that a country, when implementing the norms of pardon, assumes the obligation of more consistent implementation in legislation and practice of generally recognised international norms, primarily those that should ensure the implementation of human and civil rights and freedoms","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49570386","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":"Protection of labour rights by trade unions in separate post-Soviet countries","authors":"M. Inshyn, Serhii Vavzhenchuk, K. Moskalenko","doi":"10.37635/jnalsu.28(2).2021.222-233","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.222-233","url":null,"abstract":"Trade unions play an increasingly more critical role in protection of the employees of every state. This article aims to outline the problems with regard to the legal regulation of labour rights protection by trade unions in post-Soviet countries. The research is based on a system of various general philosophical methods (dialectical method), general scientific methods, such as methods of synthesis and analysis, induction and deduction, and special legal methods, including comparative legal method and the method of modelling. The choice of the mentioned methods was determined by the purpose of this study. The legal rules on protection of labour rights by trade unions in post-Soviet countries are set up by a number of international conventions, Constitutions of such countries (as this is a special constitutional right, being under a special protection of the state) and their national legislative acts. Some of the post-Soviet states are now members of the EU (Lithuania, Latvia, Estonia) and are subject to regional EU regulations. Every post-Soviet State has its own jurisprudence, legal practice and traditions of labour rights’ protection and hence has its own national peculiarities with regard to this protection, the representation of employees and the architecture of labour legislation. The analysis conducted by the authors shows that the national legislators were not fully following the international standards established by the International Labour Organization and did not fully secure the freedom of association. All the mentioned countries were recommended either to change some pieces of legislation or to supervise the existing draft of laws to make them meet the rules set in a number of international conventions. The authors have also stated that trade unions in post-Soviet countries are not always effective","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41960979","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":"Paradigm of reforming higher legal education in Ukraine in the context of training practising students","authors":"V. Nosik, M. M. Khomenko, L. Krasytska","doi":"10.37635/jnalsu.28(2).2021.140-149","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.140-149","url":null,"abstract":"The relevance of the study was explained by a special public demand for the quality of legal education, ensuring compliance of the content of legal education with modern requirements of the labour market and the tasks of professional activity of lawyers. The purpose of the study was to consider methodological, research and theoretical, legislative, educational, and methodological foundations regarding the practical orientation of the educational process of training lawyers as a paradigm for reforming higher legal education and determining the forms of organising the educational process aimed at improving the quality of legal education. The methodological framework of the study was formed considering philosophical, general scientific, and special scientific methods of scientific cognition. Conceptual approaches to the introduction of possible methodological forms of organising practical training of students into the educational process of higher legal educational institutions were proposed, considering the elements of the Bologna Process and the development of a unified educational space according to the European vector of development of Ukraine. The study considered methodological, scientific and theoretical, legal, and methodological foundations for a general understanding of the practical training of law students in the educational process, its functional purpose in the context of implementing the reform of legal education as a component of legal reform in Ukraine. The study emphasised the necessity of preserving and further developing fundamental higher legal education and combine it with the established national and foreign doctrines of law and the practical orientation of the educational process as a paradigm for reforming legal education in Ukraine. It was concluded that the development of practical skills and abilities of a legal education applicant occurs in the educational process due to various forms of methodological organisation of the educational process. In particular, the authors considered the features of conducting practical classes using case methods and solving incidents, as well as binary classes, practical training, working in a law clinic, performing dual education, taking part in court debates, etc. The practical value of this study lies in the fact that it proved the advisability of preserving the national traditions of higher legal education in the educational process and introducing new, progressive forms of the educational process aimed at improving the quality of higher legal education, which would meet the requirements of the labour market and the challenges facing a modern democratic society, global development trends and tasks of professional activity of lawyers in various fields","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42814102","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":"Reliability evaluation of a forensic expert's opinion: World practices and Ukrainian realities","authors":"V. Zhuravel, Violetta E. Konovalova, Galina K. Avdeyeva","doi":"10.37635/jnalsu.28(2).2021.252-261","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.252-261","url":null,"abstract":"Improving the activities of pre-trial investigation and judicial review largely depends on the increased use of special knowledge in forensic investigative practice and, above all, the involvement of an expert and their analysis. The relevance of the subject matter is explained by the need to introduce new forms and approaches to evaluating the reliability of expert opinions, in particular with the involvement of independent specialists of the corresponding speciality. The purpose of this study was to provide arguments regarding the expediency of attracting knowledgeable persons as reviewers to evaluate the objectivity and completeness of forensic analysis, the correctness of the methods and techniques applied by the expert, and the validity of the opinion. To achieve this purpose, the following general scientific and special research methods were used: Aristotelian, comparative legal, functional, sociological, statistical, system and formal legal analysis, legal modelling, and forecasting. It was established that in the vast majority of countries of the world, except Ukraine, an independent, knowledgeable person with special knowledge in the corresponding field is involved to help evaluate the reliability of an expert opinion. It was proved that contacting knowledgeable persons to evaluate the objectivity, validity, completeness of expert research helps establish the causality between the identified features of the object of analysis and the fact that is subject to establishment, and also gives grounds for determining the affiliation, admissibility, reliability, and sufficiency of the expert opinion. At the same time, a specialist's review cannot serve as a source of evidence, but only has an auxiliary (advisory, technical) nature and can serve as a basis for appointing a second (additional) forensic analysis or a cross-examination of the expert and the reviewer. To exercise the rights of individuals to fair justice, it is proposed to introduce this procedure for evaluating the reliability of expert opinions in Ukraine, with the necessary changes in the current procedural legislation of Ukraine to provide an opportunity for participants in criminal proceedings and the victim to attract knowledgeable persons as reviewers of expert opinions","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":"17 52","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41309452","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":"Implementation practice of electronic administrative services in Ukraine","authors":"Y. Hetman, V. S. Politanskyі, I. V. Semenikhin","doi":"10.37635/jnalsu.28(2).2021.93-104","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.93-104","url":null,"abstract":"One of the factors for the development of civil society in Ukraine is an effective, well-functioning institution for providing administrative electronic services. Despite the intensity and wide scope of research covering various aspects of providing electronic administrative services to the population, many issues in this area remain quite debatable, as well as understudied, which conditioned the relevance of the study. The study is aimed at studying the organisational and procedural aspects of providing electronic administrative services in Ukraine. Authors of this study clarified the significance of some fundamental concepts of this issue. The author's approach to defining the concept of electronic administrative services was formulated based on a personal interpretation of this concept from the standpoint of general theoretical analysis. Administrative mechanisms for implementing electronic public services were analysed. The study investigated the features of classification of electronic administrative services by types of electronic representation, by field of activity, by form of ownership, by consumers, by place of receipt from the standpoint of the client and from the standpoint of involvement in the electronic service. This study is the first to analyse the regulatory framework of Ukraine on the provision of electronic administrative services in stages and chronologically. Authors studied and compared the features of the procedure for rendering electronic administrative services using the Unified State Portal of Administrative Services, the iGov portal of state electronic services and the Ukrainian online service of public services – Diia. The study covered the procedure for the operation of administrative service centres in Ukraine. It was concluded that the first step of Ukraine towards creating its information society through the introduction of e-governance should be the establishment of a market for administrative and information electronic services","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44202305","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":"Prospects for recodification of private international law in Ukraine: Do conflict-of-laws rules require a new haven?","authors":"D. Lukianov, Thomas Hoffmann, I. Shumilo","doi":"10.37635/jnalsu.28(2).2021.198-210","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.198-210","url":null,"abstract":"The purpose of the study was to investigate the areas of modernisation of legislation governing private relations of a cross-border nature, proposed by the authors of the draft concept of updating (recodification) of the Civil Code of Ukraine (the CCU), and generalise foreign and international legal experience in developing acts of codification of private international law. The authors of the study considered private international law as a most dynamically developing branch due to the constant expansion of cross-border relations and requirements for constant updating and adaptation to the requirements of international civil turnover. The paper analysed the general factors and prerequisites for the recodification of private international law, comprehensively examined the expediency of abandoning autonomous codification and transferring conflict-of-law rules to the CCU. The study focused on current European experience and assessment of the impact of EU regulations on the national codifications of private international law of member states and third countries. To assess the idea of restoring the status of the CCU as a core act governing all public relations with private law content, the authors of the study addressed the negative consequences of interbranch codification of private international law in a number of post-Soviet countries. The paper proved that European states are dominated by the tendency to adopt consolidated acts of codification in this area and recognise the priority of unified international legal acts governing certain types of cross-border private relations. Based on the analysis, it is justified to conclude that the world has currently accumulated considerable experience in law-making in the area of private international law and the most effective is a comprehensive autonomous codification of conflict-of-laws rules, which is based on the priority of unified international acts and the widespread use of direct references to international agreements. While agreeing in general with the proposed changes regarding the content update of conflict-of-laws regulation, the authors emphasised the need to improve and develop conceptual approaches","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45552963","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":"Liability for damage caused using artificial intelligence technologies","authors":"R. Maydanyk, N. Maydanyk, M. Velykanova","doi":"10.37635/jnalsu.28(2).2021.150-159","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.150-159","url":null,"abstract":"Artificial intelligence technologies, which have recently been rapidly developing, along with indisputable advantages, also create many dangers, the implementation of which causes harm. Compensation for such damage raises questions regarding the subjects, the act in itself which caused the damage, the causality, etc. The situation is also complicated by the imperfection of statutory regulation of relations on the use of artificial intelligence technologies and the insufficiency or ambiguity of judicial practice on compensation for damage caused using digital technologies. Therefore, the purpose of this publication is to outline approaches to applying legal liability for damage caused using artificial intelligence technologies. Based on a systematic analysis using dialectical, synergetic, comparative, logical-dogmatic, and other methods, the study analysed the state of legal regulation of liability for damage caused using artificial intelligence technologies and discusses approaches to the application of legal liability for damage caused using these technologies. In particular, it was concluded that despite several resolutions adopted by the European Parliament, relations with the use of artificial intelligence technologies and the application of legal liability for damage caused by artificial intelligence have not received a final statutory regulation. The regulatory framework is merely under development and rules of conduct in the field of digital technologies are still being created. States, including Ukraine, are faced with the task of bringing legislation in the field of the use of artificial intelligence technologies in line with international regulations to protect human and civil rights and freedoms and ensure proper guarantees for the use of such technologies. One of the priority areas of harmonisation of legislation is to address the issue of legal liability regimes for damage caused using artificial intelligence technologies. Such regimes today are strict liability and liability based on the principle of guilt. However, the ability of a particular regime to perform the functions of deterring and compensating for damage caused using artificial intelligence technologies encourages scientific discussion","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41494103","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":"Standard of proof in common law: Mathematical explication and probative value of statistical data","authors":"V. Borysova, B. Karnaukh","doi":"10.37635/jnalsu.28(2).2021.171-180","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.171-180","url":null,"abstract":"As a result of recent amendments to the procedural legislation of Ukraine, one may observe a tendency in judicial practice to differentiate the standards of proof depending on the type of litigation. Thus, in commercial litigation the so-called standard of “probability of evidence” applies, while in criminal proceedings – “beyond a reasonable doubt” standard applies. The purpose of this study was to find the rational justification for the differentiation of the standards of proof applied in civil (commercial) and criminal cases and to explain how the same fact is considered proven for the purposes of civil lawsuit and not proven for the purposes of criminal charge. The study is based on the methodology of Bayesian decision theory. The paper demonstrated how the principles of Bayesian decision theory can be applied to judicial fact-finding. According to Bayesian theory, the standard of proof applied depends on the ratio of the false positive error disutility to false negative error disutility. Since both types of error have the same disutility in a civil litigation, the threshold value of conviction is 50+ percent. In a criminal case, on the other hand, the disutility of false positive error considerably exceeds the disutility of the false negative one, and therefore the threshold value of conviction shall be much higher, amounting to 90 percent. Bayesian decision theory is premised on probabilistic assessments. And since the concept of probability has many meanings, the results of the application of Bayesian theory to judicial fact-finding can be interpreted in a variety of ways. When dealing with statistical evidence, it is crucial to distinguish between subjective and objective probability. Statistics indicate objective probability, while the standard of proof refers to subjective probability. Yet, in some cases, especially when statistical data is the only available evidence, the subjective probability may be roughly equivalent to the objective probability. In such cases, statistics cannot be ignored","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47565688","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":"Foreign experience in constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law","authors":"O. Bukhanevych, Serhii Kuznichenko, A. Mernyk","doi":"10.37635/jnalsu.28(2).2021.55-65","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.55-65","url":null,"abstract":"The study investigates the foreign experience of constitutional and legal regulation of restrictions on human rights in conditions of emergency and martial law in Macedonia, Armenia, Belarus, Moldova, Georgia, Latvia, Lithuania, Albania, Azerbaijan, which is relevantin modern conditions, based on the presence of local military conflicts, emergencies, or the possibility of their existence in many countries of the world. The purpose of this study was to analyse the text and content of the constitutions of foreign countries to clarify and explain the groundsfor restricting human and civil rights and freedoms in conditions of emergency and martial law. To achieve this purpose, the study employed a system of methods of scientific cognition, namely general scientific (analysis, synthesis), particular (comparative, quantitative and qualitative analysis, approximation), as well as special legal (formal legal, comparative legal) methods. The practical value of the study lies in the identification of four prevailing trends in the constitutions of foreign states to the procedure for determining the scope of restrictions on human rights under special regimes: 1) consolidation of an exhaustive list of rights and freedoms in the constitutions, which cannot be restricted during the period of emergency and martial law; 2) consolidation of an exhaustive list of rights and freedoms in the constitution, which can be restricted to protect human rights, the democratic structure of the state, public safety, the well-being of the population and morals; 3) combining the first two options for consolidating restrictions in the text of the constitutions; 4) consolidation of the possibility of limiting the rights and freedoms of the individual in the texts of constitutions by state authorities under special legal regimes in the interests of national security without specifying partiular rights and freedoms that may (or may not) be restricted","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47577020","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 challenges to international security and protection of Human Rights (international and Ukrainian context)","authors":"N. Karpachova","doi":"10.37635/jnalsu.28(2).2021.25-33","DOIUrl":"https://doi.org/10.37635/jnalsu.28(2).2021.25-33","url":null,"abstract":"At the moment, two mechanisms for protecting human rights can be distinguished in Ukraine: an appeal to the European Court of Human Rights at the international level and an appeal to the Commissioner for Human Rights at the national level. Therewith, the activity of the ombudsman constitutes the state’s performance of its obligations at the international level to ensure the national mechanism for the protection of human rights. In Ukraine, the Ombudsman acts according to the model of the classic parliamentary Commissioner for Human Rights. In addition, along with the parliamentary Commissioner for Human Rights, which has a constitutional status, there are government commissioners (“quasi-ombudsmen”) in Ukraine, whose activities do not have a special status and can be terminated at the will of the government at any time. Considering the above, the purpose of this study lies in a comprehensive analysis of modern challenges to international security and the impact of these factors on the observance of human rights in Ukraine (using the methods of both international law and classical legal methodology), as well as studying the role of the ombudsman in this process. The analysis allowed to conclude that the causes of human rights violations lie not only in the country’s problems, but are also the consequences of global processes. A huge challenge to the rights and freedoms in Ukraine is the intensifying poverty of the population, which in itself is a violation of human rights and allows to exercise all other rights. Furthermore, the hostilities in the Donbas region led to gross, massive, and systematic violations of human rights: residents of the front-line territories were faced with two challenges at once – the danger that arises due to the impossibility of ensuring security in the immediate vicinity of the war zone and the increasing risks of poverty","PeriodicalId":36101,"journal":{"name":"Journal of the National Academy of Legal Sciences of Ukraine","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46709755","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}