Analìtično-porìvnâlʹne pravoznavstvo最新文献

{"title":"Ensuring human security through the prism of international legal protection: general theoretical characteristics","authors":"T.P. Kiriyenko","doi":"10.24144/2788-6018.2023.04.3","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.3","url":null,"abstract":"The article analyzes the problems of ensuring human security through the prism of international legal protection. Approaches to understanding the concept of «human security» in domestic research and in international law are revealed. Emphasis is placed on the special role of the UN in the field of ensuring and protecting human rights. It is noted that the ideas of human security began to develop thanks to the activities of the United Nations, a special group of researchers. In 1994, the report of the UN Development Program was devoted exclusively to human security. The report proposed to develop the idea of expanding the interpretation of the concept of personal security, distinguishing in it two interrelated factors: protection from unexpected and harmful disruptions of everyday life (known as «freedom from fear») and protection from constant threats of hunger, disease, crime and oppression (known as «freedom from want»). Seven separate components of personal security were further distinguished: economic, food, health security, environmental security, personal security (freedom from physical violence and threats), minority security, political security (protection of basic human rights and freedoms). In addition, the article raised the issue of ensuring human security in the conditions of armed conflicts, in particular, the war in Ukraine. Advantages and disadvantages of UN activities in this area are considered. Problems are singled out, without the solution of which it is impossible to fully ensure human rights, especially in the field of their unlawful restriction. Therefore, options for solving these problems are proposed. It was emphasized that in the current conditions, cooperation, support and mediation of international organizations in the settlement of the military conflict is important for Ukraine. The priority in the order of resolution of armed conflicts in Ukraine should belong to the United Nations - the main intergovernmental international organization that supports peace and security throughout the world. Russia’s full-scale invasion of Ukraine, which took place on February 24, 2022, shook the security situation in Europe and around the world. This war has already been called the largest armed conflict in Europe since World War II.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"66 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913449","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":"\"Norms for decision\" and \"the Methodological Claim to Fairness\" in the works of Eugene Ehrlich and Robert Alexi","authors":"V.S. Blikhar","doi":"10.24144/2788-6018.2023.04.97","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.97","url":null,"abstract":"The article under studies deals with the issue of openness of interpretation. It emphasizes that the pathos of E. Ehrlich’s activity on the whole and the leading idea of his norms for decision, in particular, revolve around the concept of what might be called the methodological claim to fairness. As a result, norms for decision precisely convey Ehrlich’s vision of how this claim can be satisfied. For the modern Ukrainian legal reality, both the notion of the claim to fairness and the concept of norms for decision are relatively open issues.In order to achieve this goal, it is essential to answer two questions: first, what is the essence of methodological claim to fairness, and second, in which way do norms for decision perform the function of a means of satisfying this claim. The answer to these questions lies in the fact that the abstract methodological claim to fairness is the advocated by E. Ehrlich demand for recognition of free law-making, which consists in the rejection of the omnipresence of interpretation. The hypostatized subject of such a claim is the juridical method, its addressees are judges and / or professors, whereas its means are norms for decision. In a generalized form, the methodological claim to fairness is primarily a demand for openness of interpretation in the event of gaps or errors in law and / or laws. Norms for decision are primarily a way of filling gaps in the course of free law-making praeter legem, as well as a means of correcting errors in the case of free law-making extra, including contra legem. In other words, it is the matter of eliminating the shortcomings of law and / or laws.Filling in gaps and correcting errors take the form of weighing interests (E. Ehrlich) and principles (R. Alexy) and aim at forming a potentially universal legal rule that may involve the subsumption of the circumstances of the case. To put it differently, it is focused on creating norms for decision. Although norms for decision are of a casual origin, they go beyond the case in which they arise. The latter results from the requirement of equal treatment, which means that under the same conditions, subjects of law should be treated equally.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913450","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":"Parliamentary reform in Ukraine: challenges and prospects","authors":"D.M. Byelov","doi":"10.24144/2788-6018.2023.04.103","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.103","url":null,"abstract":"The reviewed monograph was made within the framework of the scientific research of Zozulya A.I. and is devoted to the problem that is relevant in the field of constitutional law of Ukraine - the improvement of the constitutional and legal status and activity of the Verkhovna Rada of Ukraine.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913455","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":"Forensic examinations in the field of information technology: some problems of preparation and conduct","authors":"O.V. Kurman","doi":"10.24144/2788-6018.2023.04.77","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.77","url":null,"abstract":"The article is devoted to the problems of preparing and conducting forensic examinations in the field of information technology. In particular, the author examines such types of expert studies as the study of computer hardware and software products and telecommunication systems and facilities. The Criminal Code of Ukraine contains Chapter XVI, which provides for liability for criminal offences in the field of information technology. The forensic methodology for investigating these criminal offences provides for the appointment and conduct of these types of forensic examinations as de facto mandatory. These types of forensic examinations are also appointed in the investigation of other criminal offences in which computers, mobile phones (smartphones), flash drives were used as tools or means (espionage, murder, tax evasion, duties (mandatory payments), terrorist financing, mass riots, etc.)These examinations are carried out in cases where it is necessary to establish factual data and certain actions committed with the help of electronic technical means that are relevant to criminal proceedings. In addition to the possibilities of these examinations, the article also highlights some problems related to the preparation and conduct of expert studies. For example, it is noted that in order to create an image or copy of the investigated hard drive on his computer, the expert must have a storage medium of at least the same capacity. And if several personal computers or servers with RAID-based disc arrays are sent for examination, the cost of replaceable storage media for copying data may hinder the successful conduct of the examination. It is determined that the peculiarity of the examination is that in the case of the study of software objects and the impossibility of working with their copies, changes almost always occur in file systems and registers of technical devices (for example, when they are switched on). This situation requires the expert to obtain permission to use so-called destructive (partially destructive) methods. The paper also discusses the peculiarities of preparing materials for expert research.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"145 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913661","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":"International governmental organizations in the global health governance system: the leading role of the World Health Organization","authors":"D.V. Kibets-Pashutina, M.Yu. Holovatenko","doi":"10.24144/2788-6018.2023.04.87","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.87","url":null,"abstract":"Issues of human health protection have gradually been integrated into the agenda of specialized UN agencies and other international intergovernmental organizations in the context of ensuring the achievement of sustainable development goals, as well as the development of effective measures to curb the formation of threats to human and state security in the field of health care.Given the institutional changes in global health governance that have taken place over the past two decades and, accordingly, the impact of the changing conditions and context of international governmental organizations (IGOs) on their interaction with other actors and their performance of changed functions in the world, that is globalizing, there is an increase in the role of IGOs in the process of political globalization due to the growing relevance of political processes at the world level. However, due to the inflexibility of the organizational settings of many IMUs in general and the lack of leadership of more influential actors and their hesitant response to increasing epidemics, particularly in developing countries, there was an opportunity for actors who do not usually have much decision-making authority. and law, to set the agenda and influence global policy in this area. Civil society organizations (CSOs) operated in the discursive field of global health governance, as well as at relevant interfaces, and strengthened their discursive power through opportunities for access to medicines. This particular area of global governance was to some extent already «occupied» by the usually weak participants in the global power structure, when more powerful players – IGOs – re-entered this field.This article focuses on the World Health Organization (WHO), the World Bank and the Joint United Nations Program on HIV/AIDS (UNAIDS) in global health governance, particularly in the fight against HIV/AIDS, and analyzes the interaction and the relationship between them, as well as with other relevant global health actors.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913662","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":"Regarding the defense counsel’s participation in criminal proceedings at the pre-trial investigation stage","authors":"V.M. Kiyanitsa, K.O. Gunko","doi":"10.24144/2788-6018.2023.04.75","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.75","url":null,"abstract":"It is indicated that the participation of a defense attorney in criminal proceedings at the stage of pre-trial investigation, especially in the conditions of martial law, is a complex process that requires attention and research. Depending on the context of the conflict and the specific circumstances, the participation of the defender may be limited or unavailable at all, which violates the principles of fair trial and equality. So, this article examines the participation of defense counsel in criminal proceedings during the pre-trial investigation stage, particularly in times of a state of war. The article analyzes the legal norms and procedural rules that define the rights and obligations of defense counsel during the pre-trial investigation. Specifically, it explores the defense counsel’s right to participate in procedural actions, including the questioning of witnesses, experts, and suspects, as well as the examination of crime scenes and evidence, and access to case documents and materials.The research is based on relevant data, including the Presidential Decree No. 64/2022 and amendments to the Criminal Procedure Code of Ukraine. By analyzing legislative acts, it is revealed that a state of war affects the participation of defense counsel in criminal proceedings. In particular, a state of war may lead to changes in the legal system, the adaptation of procedural rules, and the provision of conditions for the functioning of the justice system during challenging periods.Analysis of legislative acts and experience showed that additional measures and recommendations are needed to ensure the effective participation of the defender in the pre-trial investigation during martial law. It is important to develop mechanisms that guarantee the rights of the defender, in particular, access to information, the opportunity to participate in procedural actions and ensuring confidential communication with the client. In addition, attention should be paid to the education and training of lawyers so that they are ready to effectively defend the rights of suspects and accused persons in the difficult conditions of the conflict.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913665","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":"Peculiarities of obtaining and evaluating as evidence information containing banking secrecy under martial law","authors":"G.L. Kucheruk","doi":"10.24144/2788-6018.2023.04.78","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.78","url":null,"abstract":"This article is devoted to a problem that is quite relevant in the current realities of Ukraine, namely, obtaining information containing bank secrecy during pre-trial investigation under martial law. This is due to the fact that due to Russia’s large-scale invasion of Ukraine, the normal procedure of criminal procedure activities of criminal justice authorities aimed at exercising their powers to collect evidence in criminal proceedings has been disrupted. In addition, it should be noted that the outbreak of Russia’s armed aggression in Ukraine has raised the issue of combating many types of criminal offenses, in particular, money laundering and terrorist financing, the commission and concealment of which is related to banking and financial institutions and institutions and information containing bank secrecy, which is of great evidentiary value in the detection, disclosure and investigation of these criminal offenses. For this purpose, the legislator introduced conceptual changes to the CPC of Ukraine, which delegated the function of judicial control to prosecutors. Nevertheless, the legislative construction of the procedure for obtaining such information under martial law causes certain difficulties due to existing legal conflicts.The absence of a well-established court practice on this issue leaves its mark on law enforcement activities to obtain such information. In order to identify the shortcomings of this procedure for obtaining information containing banking secrecy under martial law, it is necessary to analyze the legislative acts regulating this issue, identifying common features and signs. And after that, the main directions and proposals for improving the legislation on this issue should be determined for unambiguous use in law enforcement activities.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913776","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":"The peculiarities of exemption from serving a sentence with probation on the basis of Art. 75 of the Criminal Code of Ukraine","authors":"I. Shylo","doi":"10.24144/2788-6018.2023.04.71","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.71","url":null,"abstract":"The article is devoted to the peculiarities of exemption from serving a sentence with probation on the basis of Art. 75 of the Criminal Code of Ukraine. In the article, the authors drew attention to the peculiarities of exemption from serving a sentence (Article 75 of the Criminal Code of Ukraine), the peculiarities and terms of such an appointment; duties imposed by the court on a person released from serving a probationary sentence (Article 76 of the Criminal Code of Ukraine). The state of the current criminal legislation is considered on the example of court practice. Exemption of a person from serving a sentence with probation is used quite often by the courts, taking into account the conditions contained in Art. 75 of the Criminal Code of Ukraine. The first thing the court pays attention to is the term of the imposed punishment, namely, no more than five years, and the absence of specific criminal offenses specified in the article, taking into account the changes made on December 13, 2022. Equally important is the consideration of the identity of the culprit, namely: social status, demographic data, post-criminal behavior, criminal-legal characteristics, etc. And also the presence of mitigating and aggravating circumstances. An important point is the clarification of the Criminal Court of Cassation as part of the Supreme Court of Ukraine regarding exemption from punishment with probation for a criminal offense committed with complicity. A review of previous numerous studies on the subject under consideration and an analysis of the gaps that were pointed out in the conclusions of the studies were carried out.Special attention was paid to the draft of the Criminal Code of Ukraine and the norms contained in it regarding exemption from punishment in connection with probation. A comparison with the current criminal legislation was made, and positive points were identified, such as an increase in the term of the prescribed punishment from five to eight years, except for the one convicted of a crime of the 6th degree of gravity, related to the use of violence. There are also no restrictions in the project regarding a certain category of criminal offenses, for example, corruption or related to corruption, certain military criminal offenses (Articles 403, 405, 407, 408, 429 of the Criminal Code), torture (Part 3 of Article 127 of the Criminal Code). On the basis of the conducted research, meaningful conclusions were made with the indication of problematic points and measures to eliminate them.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"145 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913895","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":"Criminal and legal signs of a criminal organization: problems of theory and practice","authors":"O.V. Okolit","doi":"10.24144/2788-6018.2023.04.60","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.60","url":null,"abstract":"The article is devoted to the study of actual theoretical and practical problems related to the criminal-legal features of a criminal organization and the formation of scientifically based recommendations on the improvement of the current legislation and the practice of its application on this basis.It was established that in the definition of a criminal offense committed by an organized group contained in part 4 of Art. 28 of the Criminal Code of Ukraine, an error was made (instead of the word “it”, “he” was used), which should be eliminated by amending the law on criminal liability.It is argued that the definition of the purpose of creating a criminal organization needs to be clarified, since there cannot be a criminal organization that is created solely to ensure its functioning.It was established that, despite the fact that mandatory criminal law features of a criminal organization are defined in Part 4 of Art. 28 of the Criminal Code of Ukraine, in judicial practice (primarily in procedural documents) other signs of this organized criminal association are identified, in particular, specialization, plan of activity, rules of conduct, etc. These and other additional features are definitely characteristic of individual criminal organizations, but they first of all testify to the existence of their mandatory criminal law features, provided for in Art. 28 of the Criminal Code of Ukraine. Therefore, there is no need to recognize other signs as mandatory, as this will expand the scope of evidence, and therefore increase the burden on law enforcement officers, and may further complicate law enforcement activities. The indicated situation is probably due to the lack of legislative consolidation of the criminal-legal features of a criminal organization in the Criminal Code of Ukraine or another law, and therefore the problem should be solved by introducing legislative changes.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134913901","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":"Regarding the theory of demarcation of competences of local executive bodies and local self-government bodies","authors":"Y.Y. Baltsii","doi":"10.24144/2788-6018.2023.04.18","DOIUrl":"https://doi.org/10.24144/2788-6018.2023.04.18","url":null,"abstract":"The article is devoted to the coverage of certain theoretical issues regarding the delimitation of the competences of local public authorities. Attention is focused on revealing the terminological features of the category’s «competence», «powers», «functions» of executive power bodies and local self-government bodies. The author focuses attention on certain features of the demarcation of competences of local executive bodies and local self government bodies.It is stated that the development of local self-government as a direct form of manifestation of public activity of the population and a free, democratic way of organizing public power is an integral part of administrative reform in Ukraine and state building in general. It was determined that the very question of delimitation of competences is quite problematic, because it is practically impossible to delimit the functions of bodies that carry out a single administrative activity (public authority) on the ground. First of all, because local state administrations and local self government bodies perform a kind of general management function, they face a common task - the implementation of the most effective management of territories. The implementation of this task requires both management centers to have such functions as regulatory and managerial, communicative, control, informational, normative, organizational and institutional and a number of others.It is argued to take as a basis the principle of control, which should be carried out in such a way that the degree of intervention of the controlling body is proportionate to the importance of the interests that this intervention should protect when delineating the competences of local self-government bodies and local state authorities.It was determined that the current state of demarcation of competences between local executive bodies and local self-government bodies in Ukraine is not in a very good condition, which is due to some problems, namely: the incompleteness of the administrative reform; inheritance of a centralized model of public administration; the imperfection of the current legislation in the field of local public authorities, which leads to numerous conflicts in the delimitation of competence between local executive bodies and local self-government bodies. It is emphasized that the current stage of administrative reform and local self-government reform is aimed at legislative improvement and strengthening of the legislative framework in the sphere of public authority in Ukraine.","PeriodicalId":474211,"journal":{"name":"Analìtično-porìvnâlʹne pravoznavstvo","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134914098","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}