New Ukrainian Law

DISCUSSION ISSUES OF COMBINING CHAPTERS ON TRANSACTIONS AND CIVIL LAW CONTRACTS: UPDATING BOOK ONE OF THE CIVIL CODE OF UKRAINE

2024-05-01T16:03:04+03:00

The article analyzes the controversial issues of updating Chapter 16 of the Civil Code of Ukraine. The author emphasizes the expediency of adopting the positive experience of implementing the EU harmonized approaches in the Civil Code of Ukraine. The article provides arguments for the expediency of merging Chapter 16 with Chapters 52 and 53 of the Civil Code of Ukraine. This is due, among other things, to the elimination of a certain imbalance within Book Five of the Civil Code of Ukraine, which contains general provisions on obligations, general provisions on contracts, but no general provisions on torts. The author considers the issue of naming such a combined chapter and suggests that, by analogy with the DCFR, Chapter 16 of the Civil Code of Ukraine should be entitled «Contracts and Other Transactions», retaining the historically established use of the term “transactions” in the Civil Code of the Ukrainian SSR of 1922. It is proposed to reformat the material within the framework of the unified Chapter 16 of the Civil Code of Ukraine based on the need to differentiate contractual obligations into commercial and consumer obligations; to include new (unnamed) contractual structures, complex (mixed) and atypical contractual relationships; to detail the provisions on “unfair” contractual terms and conditions which lead to a significant imbalance of contractual rights and obligations to the detriment of consumers; abandonment of the general rule on the mandatory written form of a contract; the possibility of concluding a contract using electronic means; inclusion of model and sample contracts in the framework of the unified chapter of the Civil Code; clarification of the provision on a preliminary contract; distinction between the states of recognition of a contract as unconcluded and invalid, void and contested; editing of contract provisions in favor of a third party; consolidation of special rules on pre-contractual liability, etc.

JUSTICE IN COMMERCIAL LITIGATION: A DECLARATIVE DEFINITION OR HAVE PRACTICAL SIGNIFICANCE?

2024-05-01T16:12:11+03:00

The article is devoted to revealing the concept of “justice” in commercial litigation. To date, there is no comprehensive scientific study on the issue of justice in commercial litigation, which would answer the question – in which cases, when resolving disputes, the court can directly refer to the definition and essence of the justice. This determines the relevance and perspective of the chosen research topic. Therefore, the author aims to define the essence of such a category as justice, to single out the aspects of justice in commercial litigation and to determine the scope of its direct application by commercial courts. Having analyzed the legislation and judicial practice, the author comes to the conclusion that the fairness of dispute resolution is part of the task of commercial litigation. The procedural aspect of justice is implemented in the principles (fundamentals) of this type of justice and in procedural norms. At the same time, ignoring procedural norms with reference to justice – leads to arbitrariness and unlimited discretion of the court and turns the judicial process into a disorderly movement. After all, the justice of the litigation is mostly implemented in specific procedural norms. Therefore, a direct appeal to the definition and essence of justice, and the direct application of this fundamental principle of litigation (in the procedural aspect) – in the opinion of the author, is allowed in three cases: 1) in the order of application of analogy – if there is no rule regulating procedural legal relations; 2) as a criterion for making procedural decisions (committing procedural actions) in conditions where the procedural norm allows judicial discretion; 3) to avoid unnecessary formalism – if the literal observance of the procedural rule leads to a violation of the task and the basic principles of commercial litigation.

REGARDING THE ISSUE OF THE RIGHTS TO INVENTIONS’ INHERITANCE IN THE SCOPE OF THE RE-CODIFICATION OF CIVIL LEGISLATION OF UKRAINE

2024-05-01T16:20:09+03:00

The article is focused on identifying the object of inheritance after the death of a person who created the invention. It has been emphasized that the universal legal succession after an inventor’s death is significantly affected by the legal regime of the invention as an object of intellectual property right. It has been substantiated that both the rights to the patent and the rights from the patent, which are not identical within the content and procedure of implementation, are transferred to lawful heirs of an inventor. Patent rights include the right to receive the patent in case if an inventor did not have time to apply for an invention to the National Intellectual Property Authority during his lifetime or filed the application, but did not receive a patent for the invention due to the death. At the same time, taking into account the fact of a patent’s absence and the lack of state registration of the invention at the time of starting the inheritance, patent rights are not intellectual property rights and give rise to public relations by their nature. Patent rights, in turn, are intellectual property rights to inventions, a non-exhaustive (open) list of which is given in the law. The right to use the invention is the key one, and which is the basis for all other property rights of intellectual property to this object that are transferred by inheritance within the term of their validity. The author of the article has emphasized that lawful heirs also acquire certain obligations related to the payments for maintaining the validity of property rights to the invention (in some cases, the state fee for the invention’s registration), as well as the good faith use of the rights arising from the invention’s state registration. The improvement of civil legislation of Ukraine regarding the hereditary succession of the rights to inventions is offered to carry out through special regulation of the relevant legal relations within the Book 4 of the Civil Code of Ukraine, the Law of Ukraine “On Protection of Rights to Inventions and Utility Models”, as well as through by-laws.

INSTITUTЕ OF INSURANCE IN THE SYSTEM OF WAYS FOR ENSURING THE FULFILLMENT OF CONTRACTUAL OBLIGATIONS

2024-05-01T16:26:44+03:00

In the scientific article the concept, features and place of insurance in the system of ways of ensuring the fulfillment of contractual obligations are defined based on the analysis of scientific views and norms of the current legislation of Ukraine which relate to the enforcement of obligations. The legal characteristicof the main functions of insurance has been carried out, allowing it to be considered as an effective way of ensuring the fulfillment of contractual obligations, which can be used by participants in contractual relations to protect their interests, and scientific conclusions and proposals for improving the legal regulation of the institution of insurance as a security legal relationship have been formulated. It has been established that the fulfillment of contractual obligations is accompanied by the existence of auxiliary (additional) obligations aimed at stimulating the debtor to accurately and strictly fulfill the obligation, as well as preventing or reducing the negative consequences that may occur in the event of its violation. At the same time, the Civil Code of Ukraine reflects an approach according to which fulfillment of an obligation can be ensured not only by those methods that are directly provided for in the Civil Code of Ukraine, but also by those established in special regulatory legal acts or determined by the parties in the contract itself. It is substantiated that the types of security for the fulfillment of an obligation acquire the character of methods of protection only from the moment of violation of the creditor's rights under the contract. Before the occurrence of such circumstances, types of security for the fulfillment of an obligation are methods of self-protection of rights under the contract, because they are indicated in the contract, first of all, to prevent violation of its terms and stimulate the debtor to behave appropriately. The insurance contract, which is concluded for the purpose of ensuring the fulfillment of obligations, is proposed to be understood as a written agreement between the insurer and the insured, according to which the insurer undertakes an obligation in the event of an insured event (non-fulfillment or improper fulfillment of the main obligation) to compensate the insurer’s creditor (for the main obligation) in within the liability limit, damage unintentionally caused by the insured, and the insured undertakes to make timely insurance payments and comply with other terms of the contract. The аttention is focused on the accessory (additional) nature of the insurance security legal relationship and the main features of accessory. It is substantiated that, unlike other methods of ensuring the fulfillment of obligations, the insurer’s obligations to pay the insured amount arise upon the occurrence of events (insured events) previously provided for in the insurance contract, and not upon any violation of the obligation on the part of the debtor. It has been established that the conclusion of an insurance contract in order to ensure the fulfillment of contractual obligations stimulates the debtor to proper behavior, and gives the creditor confidence that in the event of non-fulfillment or improper fulfillment of his obligations by the debtor, he will receive satisfaction of his interest at the expense of the previously provided security.

THEORETICAL APPROACHES TO UNDERSTANDING THE NATURE OF FIDUCIARY RELATIONS

2024-05-01T16:33:00+03:00

The problem with fiduciary legal relations is that it is a complex legal construct with respect to which there are still no unified approaches to its understanding. In common law countries, several areas of application for fiduciary relationships have historically developed, such as trust law, corporate law, agency relationships, relationships between doctor and patient, lawyer and client, guardian and ward, etc. These areas of application of fiduciary relations are so diverse that legal scholars continue to work on finding common features that would unite them and develop a unified theory of fiduciary law. The relevance of studying this legal phenomenon is practical in the context of the recodification of Ukraine's civil legislation and the normative regulation of fiduciary responsibility. The purpose of this research is to study the legal nature of fiduciary relations through the analysis of the theories of their origin. Both theories based on one or several characteristics of fiduciary relations (property theory, trust theory, inequality theory, and others) and comprehensive theories of the emergence of fiduciary relations, such as the theory of powers and discretion, economic theory, have been analyzed. The research concludes that the purpose of fiduciary relationships is the delegation of beneficiary’s part of his / her / its legal capacity in favor of the fiduciary, resulting in the latter acquiring rights regarding the delegated powers. The use of delegated rights contrary to the purpose of the established legal relationship constitutes an abuse of right. Fiduciary duties are intended to prevent the fiduciary from abusing the rights transferred to him, and in the case of the breach, it becomes the basis for compensation of damages. From the perspective of economic theory, fiduciary duties reduce transaction costs, and this man explain the diversity of societal relationships in which fiduciary legal relations function.

TIMESHARE CONTRACT: FUNCTIONING PRINCIPLES AND CHALLENGES

2024-05-02T10:35:06+03:00

This article examines the concept of timeshare in the context of tourism research, emphasizing its interdisciplinary nature, which includes economic, tourism, marketing and legal aspects. The authors aim to analyze the compliance of the timeshare practice with the needs and development prospects of Ukraine, considering it as an important element of the tourist infrastructure of the leading countries of the world. The study uses a combination of interdisciplinary approaches, drawing on tourism studies, legal, sociological and economic sciences to conceptualize the multifaceted phenomenon of timeshare. It uses historical perspective to clarify the dynamics of timeshare development. Timeshare, as defined in the Ukrainian Encyclopedia of Tourism, refers to a model of joint ownership of vacation real estate, where several buyers own intervals of use, usually in one-week increments, within the same property. The article classifies timeshares based on seasonal usage. The study draws upon American tourist scholars since the US has both the advanced theory and practice of timeshares. It also highlights the benefits of timeshare, including vacations at professionally managed resorts with high-quality amenities that meet consumer expectations for quality leisure time. Tourism should become an important element of Ukraine's economic recovery after the victory, as Ukraine will become a particularly attractive destination for travelers due to the heroism of Ukrainians. The article emphasizes the importance of infrastructure, both material and institutional, for the support and development of such tourist practices as timeshare in Ukraine. In conclusion, the study aims to contribute to the interdisciplinary understanding of timeshare in the field of tourism research, emphasizing its practical implications and relevance for the development of Ukrainian tourism.

PROSPECTS OF UPDATE OF THE CIVIL CODE OF UKRAINE PROVISIONS ABOUT A NATURAL PERSON IN THE RECODIFICATION PROCESS

2024-05-02T10:40:35+03:00

The article analyzes the issue of civil legal personality of a natural person as a participant in civil relations from the point of view of the recodification of civil legislation. With regard to the terminology for the designation of this category of participants in civil relations (“natural person”, “human”, “citizen”), the expediency of retaining the term “natural person” in the updated Civil Code of Ukraine is indicated. Regarding the moment of appearing of civil legal capacity, it is noted that it is not appropriate to enshrine the concept of “subjunctive legal capacity” in the Civil Code of Ukraine. However, the expediency of clarifying that civil legal capacity arises from the moment of birth of a natural person alive and ceases at the moment of irreversible death is proven. Regarding the concept of active legal capacity, attention is paid to different approaches to defining this category in the civil legislation of the countries of the post-Soviet space and the countries of the European Union, and the necessity of narrowing the concept of active legal capacity to the possibility of committing juridical acts is substantiated. Regarding the scope of the active legal capacity of minors under 14 years, attention was drawn to the expediency of its expansion at the expense of providing them with the opportunity to independently perform transactions aimed at obtaining a benefit free of charge, except for transactions that are subject to notarization, as well as providing minors who have reached the age of 6 with the opportunity to independently perform transactions, related to the use of electronic means of payment. With regard to the active legal capacity of minors from 14 to 18 years, the need to maintain the existing requirement regarding the mandatory consent of the body of guardianship for the execution of transactions regarding the disposal of immovable property, vehicles is indicated only in the part of transactions regarding the alienation of such objects and their transfer as a pledge (mortgage). At the same time, attention was paid to the expediency of canceling existing restrictions on the ability of a minor from 14 to 18 years to dispose of funds on a current account. Regarding the restriction of active legal capacity, it is advisable to leave only one ground – a disorder of psyche and (or) behavior, which significantly affects the ability of a natural person to realize the meaning of his actions and (or) manage them.

TO THE QUESTION OF THE JUDGE’S DISCRETION IN BRINGING THE ACCUSED TO CRIMINAL RESPONSIBILITY

2024-05-02T11:31:31+03:00

Based on the evaluative discretion used when bringing a person to criminal liability, the article examines the circumstances established by the court which mitigate the punishment. The author emphasises that in doing so, the court should not only establish them from the criminal proceedings in accordance with the criminal law, but also assess certain circumstances of the criminal proceedings and provide their justification. For a more complete and objective study of the court's evaluative discretion in the context of bringing the accused to criminal liability, the author analyses court verdicts. The relevant circumstances were grouped into different types, and some of them, which had different lexical meanings for a particular circumstance, were unified for more convenient and rational use. In the course of analysing the case law, the author identifies the following types of circumstances which were recognised by the courts as mitigating circumstances: circumstances related to part 1 of Art. 66 of the CCU; circumstances related to the current socio-political situation in Ukraine; circumstances related to the age of the accused; circumstances related to the actions of the accused which indicate that he/she has admitted his/her guilt; circumstances related to the accused's social obligations to support certain persons; circumstances related to the peculiarities of criminal proceedings which indicate that the accused is a low social danger; circumstances related to the circumstances which characterise the personality of the accused. The author concludes that despite the evaluative nature of the judge's discretion in assessing mitigating circumstances, in the context of Part 2 of Article 66 of the CC, the judge relies on the circumstances presented by the parties to criminal proceedings during the trial and must confirm them with relevant evidence. At the same time, the court should examine them in detail, assess how much they influenced the unlawful behaviour of the person or indicate a relatively low social danger of the accused, in order to avoid possible formalisation of their application.

CHALLENGES TO SAFEGUARDING INDIVIDUAL RIGHTS WHEN APPEALING A SUSPICION NOTICE IN COMBINED CRIMINAL PROCEEDINGS

2024-05-02T11:40:40+03:00

The article examines the issue of ensuring individual rights in the context of combined criminal proceedings, specifically focusing on the appeal of a suspicion notice and subsequent appeal of a decision by an investigative judge to refuse a complaint against a change in the previously reported suspicion during the pre-trial investigation. The authors argue that the situation should not be considered within the framework of the single legal regime rule, as it concerns the acquisition of the procedural possibility to appeal to the court against procedural decisions that previously did not exist. It is emphasized that in this case, it is about ensuring the individual's right to judicial protection, rather than a single legal regime in the case of combining several pre-trial investigation materials. The article proves that a suspect or his/her defender can appeal a suspicion notice in a unified criminal proceeding on the basis of paragraph 10 of part 1 of Article 303 of the Criminal Procedure Code of Ukraine, if at least one of the pre-trial investigation materials from this unified proceeding was entered into the Unified Register of Pre-trial Investigations after these amendments came into force. It is summarized that the ruling of the investigative judge on the refusal to satisfy a complaint against a change in the previously reported suspicion in a unified criminal proceeding is subject to appeal during the pre-trial investigation on the basis of part 2 of Article 309 of the Criminal Procedure Code of Ukraine, if at least one of the pre-trial investigation materials from this unified proceeding was entered into the Unified Register of Pre-trial Investigations after these amendments came into force.

STABILITY AND DYNAMICS OF THE LAW ON CRIMINAL LIABILITY: PROSPECTS FOR IMPLEMENTATION

2024-05-02T11:55:05+03:00

The article considers such properties of the law on criminal liability as stability and dynamics. During the research, interdependence between the mentioned legal categories was established. It is stated that under martial law, the dynamics of the law on criminal liability has priority. As a perspective in forming new criminal legislation, priority is laid on the stability of the criminal liability law. The study states the absence of the Law of Ukraine, which would determine the procedure for sending draft laws to the National Academy of Sciences of Ukraine for legal expertise. It is proposed to provide such a mechanism for checking bills in the Regulations of the Verkhovna Rada of Ukraine. The article supports the provisions of the draft Criminal Code of Ukraine on consolidation of the principle of stability of criminal legislation. It is established that the principle of stability of the law is regulated in the national legislation only in clause 4.1.9. Art. 4 of the Tax Code of Ukraine of December 2, 2010. Analysis of the relevant provisions of the draft Criminal Code allowed us to make certain recommendations for their improvement: firstly, the presumption of knowledge of the criminal law and the stability of the Criminal Code require independent regulation; secondly, fixing specific time limits for amending the Criminal Code of Ukraine will negatively affect the implementation of the dynamics of the law on criminal liability; thirdly, the normative regulation of the mechanism for amending the Criminal Code of Ukraine does not guarantee compliance with such norms and requires the establishment of responsibility for their failure.

REFORMATION OF MILITARY COLLECTION IN UKRAINE TERMS OF MARTIAL LAW: ANALYSIS OF LEGISLATIVE INITIATIVES

2024-05-02T10:49:42+03:00

Establishment of soldiery taxes or collections in the different tax systems of the world predetermined by the necessity of bringing in for the budget of additional financial resources with the aim of satisfaction of soldiery necessities during military operations. In Ukraine of input of military collection in 2014 it was carried out with the aim of strengthening of defensive capacity of the state and sponsorship of reformation of the Armed Forces of Ukraine. In the article the necessity of further improvement of tax and budgetary law is reasonable with the aim of the timely and complete filling of the State budget of Ukraine, financing of the Armed Forces of Ukraine. Authors are analyse the volumes of receipt of military collection in the structure of earnings of the Erected budget of Ukraine during 2014–2021 and the annual increase of his volumes is set in a budget. The registered is studied in Verkhovna Rada to Ukraine of laws of reformation of military collection, in particular, to differentiation of rate of military collection, tax exemption, and also abolition of collection separate categories of persons or profits. Imperfection of separate positions of the registered Laws and necessity are set them further revision. It is well-proven that abolition over of military collection in the conditions of martial law can bring to the considerable losses of profits of the state budget, reduction of sources of the financial providing of the Armed Forces of Ukraine, that are impermissible. It is set that input of the differentiated taxation by military collection in the conditions of martial law, instead of only rate 1,5 that will assist filling of budget, will provide the justice of taxation, for implementation of not only fiscal but also regulative function of taxation. It is marked the necessity of further reformation of military collection for Ukraine by providing of having a special purpose aspiration of receivabless from this collection on realization of measures and programs related to the increase of defensive capacity and safety of the state.

CONCEPTUAL ISSUES OF THE LEGITIMACY OF STATE AUTHORITY AND REDUCTION OF RISK OF CRISIS OF AUTHORITY UNDER MARITAL LAW IN UKRAINE

2024-05-02T10:59:27+03:00

The article analyzes issues of the legitimacy of state authority and reduction of a risk of crisis of state authorities under martial law in Ukraine. The theoretical foundations of the issues of legality, legitimacy, and legitimization of state authority are analyzed, taking into account political and legal processes and factors of social life. Attention is paid to negative factors that have an impact on the effectiveness of the functioning of state authority. Violations of the constitutional foundations of the state power functioning in compliance with the system of checks and balances are revealed. The need to return to the constitutional and legal foundations and constitutional model of state authority in the country in order to restore the legitimacy of its institutions is emphasized. It is noted that the legitimacy of state authority is directly interconnected with trust in the decisions made by the state and in the legal mechanisms of their enforcement. Undoubtedly, decisions that unite the institutions of civil society with the institutions of state authority are of great importance in this process. Such decisions would represent a uniform understanding of the further development of the state, as well as a unified vision of comprehensive strategy for responding to today's challenges. Based on the analysis of the level of trust in the state institutions, the latest sociological studies have identified the necessary ways to improve the efficiency of the state administration. Strengthening the effectiveness of the executive branch of government through a consensual, professional, and non-politicized approach in the creation of a “technocratic government” (or the so-called “unity government”) is proposed. In current conditions where the constitutional term of office of the legislative branch – the Verkhovna Rada of Ukraine – has already expired in the fall of 2023, and the term of the executive branch – the President of Ukraine – ends in May 2024, a “unity government” can become an important tool for legitimizing the decisions of the state authorities in general. Important conditions for the legitimacy of the state bodies are unconditional compliance with the Constitution and laws of Ukraine, as well as the adoption of responsible state decisions that will meet the criteria of legality, efficiency, and expediency in solving urgent issues in the functioning of the entire system of state authorities (including local self-government and civil society institutions) in Ukraine are emphasized.

MODERNIZATION OF THE UKRAINE’S CONSTITUTION IS THE MAIN DIRECTION OF LAW-MAKING ACTIVITY IN THE CONDITIONS OF POST-WAR RECOVERY

2024-05-02T11:12:24+03:00

The actuality of studying the prospects for the modernization of the Constitution of Ukraine is stipulated by the processes of Euro-Atlantic integration of Ukraine, which provide the fulfillment of the obligations assumed by the Ukrainian state, as well as the need to improve the national law and legislation. This allows us to assert that the issue of modernization of the Constitution of Ukraine will be included in the agenda of prospective law-making activities in the process of post-war recovery as it will become a system-forming one for the legal system of Ukraine. In connection with the mentioned above, the following principled provisions of the possible modernization of the Constitution of Ukraine are considered in the article: creation of the constituent assembly, which should become a special authority, the main purpose of creation and activity of which is a preparation of draft law on amendments to the Constitution of Ukraine; the need to make changes, first of all, to those sections of the Constitution of Ukraine that are related to building a civil society in Ukraine; solving the issue of priority of the norms of international law over the norms of domestic law, etc. It is concluded that the modernization of the Constitution of Ukraine anticipates, firstly, that the issue of the need for modernization of the Basic Law must be decided by citizens of Ukraine themselves; secondly, the involvement of civil society institutions in active cooperation with the state authorities on the draft of Constitution of Ukraine, thirdly, determining the method of adoption of new Constitution of Ukraine, since the national constitutional theory and practice know many quite successful projects of the Constitutions of Ukraine, which have remained only projects.

ELEMENTS OF NATIONAL WEALTH IN THE LEGAL VIEWS OF FIGURES OF UKRAINIAN EMIGRATION IN 1920–1930

2024-05-02T11:24:11+03:00

The article examines the concepts of statehood and the nation of Ukrainian intellectuals in emigration of the interwar period. The key approaches that deepened knowledge about the people, nation, state, government, etc. are singled out. Only a few researchers are familiar with the intellectual heritage of Ukrainian thinkers of the interwar period, such as S. Dnistryanskyi, V. Starosolskyi, O. Eichelman, O. Bochkovskyi, A. Yakovliv, V. Lypinskyi and others. The territorial problem appeared as one of the important aspects of the scientific theorizing of many scientists of the given era. Different scientists gave unequal importance to the territory in the development of the Ukrainian state, but the majority held the view that the territory itself is a natural prerequisite for the successful development of the nation. The reason for the long period of «statelessness» of the Ukrainian people lies, among other things, in the weakness of the national idea and insufficient awareness by the Ukrainian elite of their tasks, common values and high goals of the nation. The Ukrainian movement is unique and should be based on its own political and legal experience, Ukrainian customs and traditions, without denying historical lessons and the world political situation. When a country loses intellectual wealth due to the emigration of the best scientists and experts, as was the case a century ago and is observed today in Ukraine, it loses the opportunity to accumulate more national wealth. The same is observed when the intellectual level of the nation decreases, especially when the quality of education decreases and the funding of science and education is reduced. Modern scientists are faced with the task of analyzing the scientific ideas of political emigrants, who themselves were theoreticians and creators of the restored statehood in various forms in 1917–1921, unrealized scientific concepts, to find among them the most acceptable examples for modern times and, with the help of political figures-practitioners, to make an attempt at successful development of the Ukrainian state. The search for further prospects requires the development of new approaches to the analysis of political and legal reality while not losing the socio-historical, national, cultural and moral foundations of the Ukrainian people.

PECULIARITIES OF THE PROCEDURE FOR THE EXECUTION OF ECHR DECISIONS ON JUST SATISFACTION

2024-05-02T12:05:20+03:00

The article examines the national legislation of Ukraine and international legal acts on the implementation of the final decision of the European Court of Human Rights. Specifics of the executive procedure regarding just satisfaction are defined. The principles of finality and nonappealability – the main characteristics of the decisions of the European judicial institution – are disclosed. Emphasis is placed on the fact that in order to implement the process of execution of ECHR decisions, it is necessary to have a final decision of the Court, which has the procedural status of an executive document and to apply for its execution regarding the payment of just satisfaction. The legislative norms regulating the issue of executive proceedings in the execution of decisions of the ECHR have been analyzed. Examples of the decisions of the European Court of Human Rights, the Constitutional Court of Ukraine and international practice on the implementation of the decisions of the European Court are given. The phasing of the executive procedure is outlined, which consists in: 1) preparation for the execution of the final decision of the ECHR; 2) fulfillment of its resolutive part regarding the payment of compensation (just satisfaction); 3) completion of the actual implementation of this decision by the bodies of the state executive service. Attention is drawn to the stage of execution of the resolutive part of the decision, which is central in the entire executive process, and only at which the peculiarity of executive proceedings in the execution of decisions of the ECHR in cases against Ukraine is highlighted. It was concluded that a characteristic feature of the executive procedure of ECHR decisions is a special procedure for their execution, and the timely and full payment of just satisfaction to the creditor depends on the proper observance of the stages of this process.

ACQUISITION OF THE OWNERSHIP RIGHT TO THE RECYCLED ITEM

2024-05-02T12:14:31+03:00

The author of the article has established that the acquisition of the ownership right to the recycled item belongs to the primary (initial) grounds (methods) of acquisition of the ownership right. A compromise decision was recorded in times of the Ancient Rome regarding the establishment of the owner for a recycled item: if a new item can be converted back into the material it was made of, then the owner will be the material’s owner, if not the ownership will belong to its creator – the craftsman. The author has argued that a person who recycled an item can acquire the ownership right to a new item in the manner specified in the Art. 332 of the Civil Code of Ukraine according to the following elements: 1) the material that did not belong to the item was used for its processing by the ownership right, that is, someone else’s item (material); 2) the cost of processing and creating a new item exceeds the cost of the material; 3) such excess is significant; 4) the person who recycled the item has a desire to acquire the ownership right to the new item; 5) the person who recycled the item (material) is in good faith. These factors should be the main ones while distinguishing between the processing of an item and capital or current repair of an item, even if the capital repair of an item leads to significant improvements of the item and significant increase in its value. It has been clarified that the created new item as a result of material processing will have a new functional purpose, but will not be an improvement of the item that was processed, or its benefit, revenue. Under all circumstances, a new item is created after being recycled, and the current or capital repair of an item leads to an item’s change, a new item is not created. Particular attention has been paid to the need for a more thorough regulation of civil relations regarding the acquisition (termination) of the ownership right to objects that have important national economic and defense significance and are the state property of Ukraine.

CONCEPT AND LEGAL NATURE OF PROCEDURAL SUCCESSION

2024-05-02T12:19:42+03:00

The article is devoted to the study of aspects of the legal nature of the institute of procedural succession in civil procedure, the definition of the concept of civil procedural succession, and the study of the grounds for its occurrence. In the course of the study, the author formulates the concepts of “civil procedural succession”, “prerequisites for civil procedural succession” and “content of civil procedural succession”. The works of Ukrainian scientists and their approach to defining the concept of “civil procedural legal succession” are analyzed. Practitioners and modern civilists often use the category of succession to explain legal processes that may have nothing to do with succession. In civil law, succession is aimed at regulating legal relations which result in the termination of the rights and obligations of one person and the emergence of the same in terms of the rights and obligations of another person. Like the replacement of an improper party, procedural succession means a change in the existing composition of the parties to the dispute. Procedural succession can be defined as a replacement of a party or a third party in disputed or established by the court legal relations due to a change in the subjects of law or duty in material legal relations. A party may cease to participate in the trial for various reasons, but procedural succession occurs only if there is succession in material legal relations. Procedural succession has certain features that depend on the status of the participant in the process, the totality of procedural rights and obligations vested in the parties. Procedural succession is possible only when the successor proves to the court and other participants in the process that he has the right to acquire the procedural position of the subject whom he intends to replace. Procedural successors acquire all unrealized procedural rights of the predecessor at the time of entry into the case and, based on the principle of dispositivity, can freely implement and dispose of them.

STRATEGY AND TACTICS OF STATE POLICY IN THE SPHERE OF ENSURING FOOD SECURITY OF UKRAINE

2024-05-02T12:24:44+03:00

The article is devoted to determining the steps to improve the strategy and tactics of state policy in the field of food security of Ukraine. The methodological basis of the research is comparative, system-structural and formal-logical methods. Their use made it possible to clarify the general mechanism of implementation of state policy, as well as to study the experience of strategic planning of the implementation of state policy in the field of ensuring food security in the leading member countries of the European Union. When conducting the research, domestic and foreign legal literature was used, which is devoted to the tools of public administration and the peculiarities of the implementation of state policy in the field of ensuring food security in individual EU member states, as well as in Ukraine. As a result of the research carried out by the author, it was established that in Ukraine there is no mechanism for the continuity of planning the strategy and tactics of the state policy in the field of ensuring food security of Ukraine. As a result, currently, state policy in this area of public administration is carried out without a clearly defined system of strategic goals and objectives. The scientific position that the mechanism of formation and implementation of state policy in the field of ensuring food security should be determined at the level of a separate law on food security of Ukraine is substantiated. The latter should include a detailed procedure for the development, approval and implementation of the national strategy and state policy tactics in the field of food security of Ukraine. In general, positively evaluating the draft order of the Cabinet of Ministers of Ukraine "On the approval of the food security strategy for the period until 2030", we propose to supplement its substantive part with the following elements: a mechanism for the implementation in Ukraine of the generally recognized EU-level principles of ensuring the country's food security; a mechanism for involving Ukraine in ensuring global food security, as well as a mechanism for implementing regional food security, in the context of cooperation between local self-government bodies and state authorities in this area. Particular attention should be paid to the involvement of IT in ensuring food security of Ukraine, as well as the formation of a mechanism of real cooperation between the state and civil society institutions in the field of ensuring food security of Ukraine.

GENDER PARITY POLICY IN THE PUBLIC SERVICE SYSTEM IN NORTH AMERICA

2024-05-02T12:33:46+03:00

The article is devoted to the study of gender parity policy in the public service system in North America. Particular attention is paid to the United States of America and Canada. The article characterizes and describes the historical development of gender policy in these countries. Dependencies, patterns and determinants that may affect the state of gender parity in a particular region are analyzed. The author analyzes the laws and other regulations of the national legislation of North American countries that regulate issues related to gender parity, non-discrimination and access to public service. The author examined the gender ratio of public administration representatives in various positions in North America. The author analyzes the institutional system of North American countries and identifies the bodies and officials authorized to implement, monitor and supervise compliance with gender policy. The positions of the representatives of the United States and Canada on the introduction and application of gender quotas for access to leadership positions are analyzed and summarized. The sources of the state gender policy formation in the United States of America were analyzed and highlighted. Particular attention is paid to non-governmental organizations as an important factor that has a significant impact on public policy in this area. Based on the study, it was found that the number of women in parliaments does not necessarily demonstrate a high level of gender parity in this region. It was also found that the application of gender quotas in access to public service does not necessarily have the desired and envisaged by the state policy consequences. The author describes different approaches to gender policy, analyzes successes and challenges in this area.

OBSTACLES IN EVIDENCE IN CASES ON DISSOLUTION OF MARRIAGE

2024-05-02T12:41:17+03:00

The article highlights the problems of proof in civil proceedings in divorce cases. As a result of the full-scale war, the demand for divorce is increasing. Divorce plays an important basic role in the perception of the end of a relationship, because in fact it poses to the already ex-spouses important questions of child support, the dating regime and the process of upbringing, the distribution of jointly acquired property and other issues. In fact, divorce is a legal and psychological milestone for spouses, the passage of which is an important element both for citizens and for society as a whole, because it provides the opportunity to create new, possibly stronger families. There are two ways to dissolve a marriage in Ukraine: – through the RACC – in the event that there are no minor children and both spouses wish to terminate the marriage; – through the court – in the case of minor children or the unwillingness of one of the spouses to dissolve the marriage. According to the statistics of the Ministry of Justice of Ukraine, the number of broken marriages for 2022 is: 17,893, including 1,093 divorces through court. At the same time, the indicated statistics need to be supplemented by the judicial authorities, because due to a lack of funding, violation of the deadlines for the preparation of decisions, not all court decisions on divorce could be reflected in the statistics for the corresponding year. In confirmation of this, lawyers in the field of family law repeatedly reported in the mass media about the increase in requests for divorce, at least twice, compared to the previous year [2, p. 175]. In this essay, we will be talking about the judicial option of termination of marriage and the process of proof in this type of civil disputes. “Each party must prove the circumstances to which it refers as the basis of its demands or objections” [3, Part 1 of Art. 81]. The Civil Procedure Code of Ukraine, in particular Art. 175, does not contain a list of mandatory evidence, with which the plaintiff must prove the circumstances he refers to and, accordingly, add to the application for divorce. Along with this, the list of such evidence, established by the court decision, will be discussed in more detail later.

JUDICIAL DISCRETION OF THE ECONOMIC COURT DURING THE ESTABLISHMENT OF THE COMPENSATION FOR COPYRIGHT AND RELATED RIGHTS INFRINGEMENT

2024-05-02T12:48:18+03:00

This article is devoted to the study of the problem of using judicial discretion during the application of norms on the compensation for copyright infringement. This research studies the rules of law regulating the compensation on the basis of the amount of royalties which would have been due if the infringer had requested authorization to use the object in question. The research is based on the norms of Ukrainian law, in particular the Law of Ukraine On Copyright and Related Rights and the Civil Code of Ukraine devoted to the regulation of the subject matter. The Law of Ukraine on Copyright and Related Rights establishes the system of remedies for copyright infringements. One of the remedies is compensation in twofold (or in some cases threefold) sum of royalties which would have been paid if the infringer had requested authorization to use the object of exclusive rights. The author describes some problematic issues with the remedy: the connection between compensation and damages of the copyright proprietor, the mechanism of establishment of hypothetical royalties, etc. From the author’s point of view the remedy should be understood as a kind of civil liability. As a result, the remedy is regulated by the common principles of civil liability. Accordingly, the sum of compensation for infringement must principally be proportionate to rightholder’s losses. The possibility to achieve just results can be found in court’s power to use judicial discretion. Judicial discretion must be understood as power to make choice between alternatives which are all lawful. Judicial discretion is the main legal mean to achieve reasonable and just results under difficult circumstances of the deficiency of evidence of actual losses. The power to make choice is based on specific prescriptions of law. The language of the norms of the Law of Ukraine On Copyright and Related Rights, the Civil Code of Ukraine lets to say that the power in question is vested by using of evaluative concepts. For instance, The Law of Ukraine On Copyright and Related Rights provides that the sum of compensation must be effective, proportionate and deterrent, aimed at restoring violated rights. The listed terms do not have precise meaning and must be determined by court. To apply relevant rules the court must establish the sum of royalties which would have been paid for using the object of exclusive rights. The Law does not contain detailed rules concerning the methods of calculation of royalties. In particular, there exist no rules on the conditions of hypothetical use of a subject matter. Accordingly, the court possesses the power to determine the conditions. In conclusion, judicial discretion is an essential and needed legal instrument which makes it possible to apply the norms on compensation.