PROBLEMS OF LEGALITY

8-14

Authors: Igor Victorovych Semenihin

The specific features of the use of legal scholarship by the courts of Ukraine have been analyzed in the paper. The reasons of lack of the established practice of scholarly writings citation in court decisions have been considered.

24-36

Authors: Богдан Петрович Карнаух

Limitation period is the time for an aggrieved person to apply to court. Notwithstanding that aggrieved person after the limitation period has lapsed does not lose substantial right, such a person does lose a right to apply to court for protection. Thus in the situation when a limitation period has lapsed substantial and procedural rules are tightly intertwined. On the one hand, this situation is about some requirements for bringing an action to the court; on the other hand, the loss of judicial protection significantly decreases the value of the substantial right. That is why the improper application of limitation period potentially can threaten all fundamental human rights. Limitation period is a traditional issue in private law. That is why many scholars have addressed it. T. M. Vakhonyeva, V. V. Luts’, O. V. Pushnyak, V. I. Tsikalo, O. V. Shovkova are amongst them. Nevertheless the issue has never been analyzed systematically through the perspective of European Convention on Human Rights and Fundamental Freedoms. The main objective of the paper is to analyze the limitation period from the standpoint of its congruence to different provisions embodied in European Convention on Human Rights and Fundamental Freedoms. First of all the author pays attention to ECtHR case-law concerning the right to a fair trial. In that context limitation period is deemed to constitute a restriction of a right to a fair trial. But such a restriction is not in itself inconsistent with the Convention. In many cases such a restriction is justified first and foremost for the sake of providing legal certainty, which is one of the important aspects of rule of law. Also the author addresses the problem of congruence of limitation period to some other provisions of ECHR, such as: prohibition of discrimination, right to respect for private and family life, protection of property. Limitation period constitute a restriction of a right to access to court. Such a restriction is justified if (a) it does not restrict a right to access to court in such a way that the very essence of that right is nullified; (b) it has a legitimate purpose; (c) the proper balance between the purpose aimed and the restriction is struck. In order for the limitation period to be proportionate with the aim of providing legal certainty, the following requirements should be met: (i) the limitation period is not unduly short; (ii) the application of limitation period is foreseeable; (iii) the application of limitation period is flexible (i.e. it is capable of taking into account different individual characteristics of each case). Recent research and publications analysis. Limitation period is a traditional issue in private law. That is why many scholars have addressed it. T. M. Vakhonyeva, V. V. Luts', O. V. Pushnyak, V. I. Tsikalo, O. V. Shovkova are amongst them. Nevertheless the issue has never been analyzed systematically through the perspective of European Convention on Human Rights and Fundamental Freedoms. Paper objective. The main objective of the paper is to analyze the limitation period from the standpoint of its congruence to different provisions embodied in European Convention on Human Rights and Fundamental Freedoms. Paper main body. First of all the author pays attention to ECtHR case-law concerning the right to a fair trial. In that context limitation period is deemed to constitute a restriction of a right to a fair trial. But such a restriction is not in itself inconsistent with the Convention. In many cases such a restriction is justified first and foremost for the sake of providing legal certainty, which is one of the important aspects of rule of law. Also the author addresses the problem of congruence of limitation period to some other provisions of ECHR, such as: prohibition of discrimination, right to respect for private and family life, protection of property. Conclusions of the research. Limitation period constitute a restriction of a right to access to court. Such a restriction is justified if (a) it does not restrict a right to access to court in such a way that the very essence of that right is nullified; (b) it has a legitimate purpose; (c) the proper balance between the purpose aimed and the restriction is struck. In order for the limitation period to be proportionate with the aim of providing legal certainty, the following requirements should be met: (i) the limitation period is not unduly short; (ii) the application of limitation period is foreseeable; (iii) the application of limitation period is flexible (i.e. it is capable of taking into account different individual characteristics of each case).

46-53

Authors: Сабріна Еглерівна Сибіга

Many of modern legal concepts have their roots in the jurisprudence of Ancient Rome. The concept of novation is one of them. That is why it is vitally important to analyze the main provisions concerning novation that were stated in ancient first-hand sources in order to improve modern theory on that matter. The concept of novation is one of the classic issues in the realm of law of obligations. Thus much attention was paid to it, and especially to the treatment of novation in Ancient Rome. The problem of novation was addressed in the writings of such scholars as Yu. Baron, K. von Czyhlarz, H. Dernburg, D. V. Dozhdyev, D. D. Hrimm, J. A. Pokrovs’kyy, B. Windscheid, and others. The main objective of the paper is to provide an overview of the main provisions stated in ancient Roman first-hand sources on the matter of novation and to suggest some practical implications that might be entailed from those provisions. In Ancient Rome novation is deemed to be a substitution of one obligation with another, or, in other words, a transformation of debt into some new obligation. The conclusion is made that both the primary and the new obligation had to be unilateral. Thus the author states that bilateral obligation was not able to be turned into unilateral one through the novation. Also the elements of the novation are defined. They are: (a) the existence and validity of the former obligation; (b) the existence and validity of the new obligation; (c) the difference between the former and the new obligation; (d) clearly an undoubtedly expressed intention of the parties to renew the obligation. Special attention is paid to the problem of novation under some special condition. The legal consequences of invalidity of the former or new obligation are also discussed. Despite the seeming similarity of the definitions of novation in Antient Rome and in modern jurisprudence, the Roman concept of novation was much broader, especially because it encompassed the substitution of parties and the transformation of the obligation due to commencement of action.

61-69

Authors: Є. А. Гетьман

Rule-making activity of executive power, its concept, content regulation is one of the pressing problems in Ukraine, despite a considerable amount of theoretical research, leaving open the question of legislative regulation and practical implementation of the legislative process in general and the executive authorities in particular. The article aims to determine where the rule of law in the rule-making activity of executive power in Ukraine by analyzing scientific approaches to these issues. The most important principle, which now can be attributed to the fundamental principles of modern law-making activities of the executive is the rule of law. The rule of law is a basic and irrefutable principle that should guide the executive authorities in the exercise of legislative activity to develop the most sophisticated in content of subordinate legal act. Respect for the rule of law in lawmaking activity of executive bodies is an indicator of proper implementation and protection of rights, freedoms and interests of man and citizen. The rule of law implies not only the recognition of fundamental human rights, but also bound to ensure compliance and by authorized public authorities, especially the executive branch.

90-102

Authors: Оксана Володимирівна Макух

In the article an author pays attention to the exceptional importance of the Law on the State Budget and the need for a clear approach to the definition of its content. Law on the State Budget of Ukraine - is one of the most important laws, which the Verkhovna Rada of Ukraine adopted annually. In content, it differs significantly from other legal acts of such kind. According to para. 24 of part 1of Art. 2 of the Budget Code of Ukraine – it’s the law that approves the State Budget of Ukraine and includes provisions to ensure its implementation during the budget period. At the same time, the Budget Code of Ukraine does not give a definition of «State Budget». In additio14n, currently there is no clear answer to the question, what provisions should be considered such to ensure its implementation, as in Art. 40 named codified act contains no comprehensive list of those provisions, which are determined by the Law on State Budget of Ukraine. Do not add certainty in this matter and decisions of the Constitutional Court of Ukraine, which expressed the legal position on the subject of the law on the State Budget. Issues relating to the definition of the legal nature of the Law on the State Budget and its object was in view of these scientists-financiers as L.K. Voronova, I.B. Zaveruha, O.B. Zaveruha, S.T. Kadkalenko, O.A. Musica-Stefanchuk, A.A. Nechay, M.I. Piskotin, I.N. Yushchenko and others. At the same time, the lack of a clear approach regarding designated theme indicates the need for its further development. Thus, the purpose of this article is to analyze the decisions of the Constitutional Court of Ukraine, concerning the definition of the subject matter of the Law on the State Budget. Based on the analysis of the decisions of the Constitutional Court of Ukraine, concerning the definition of the subject matter of the Law on State Budget of Ukraine, stressed the existence of unjustified extension of the latter, which leads to a violation of the budget legislation and the formation of false legal practice. It was stated that any provisions relating to changes in the scope of social standards, the scope of rights and responsibilities, benefits, compensation and guarantees provided by other laws, must be made by amending it in such legal acts, rather than be defined by the Law on the State Budget. It is proved that taking into account the systemic connection Art. 95 of the Constitution of Ukraine and art. 40 of the Budget Code of Ukraine, the Law on the State Budget must contain a clearly defined position. The amount of expenses, their distribution, including those due to funded pensions and other social benefits provided in attachment № 3 to the Law on State Budget of Ukraine for 2016. Such attachments are an integral part of the Law on State Budget of Ukraine for the relevant year. They are approved only by the Verkhovna Rada of Ukraine, as stated in Art. 95 of the Constitution of Ukraine, so their size can not be changed by the Cabinet of Ministers of Ukraine. With regard to para. 11 of part 1of Art. 40 of the Budget Code of Ukraine, these additional provisions should regulate the process of budget execution in terms of implementation of the already approved budget for the relevant year. Thus, the Law on State Budget, which has its defined Budget Code of Ukraine, subject of regulation, could not contain provisions other than those which provided for in Art. 40 of this codified act, even those that would implement additional social guarantees and expand their volume. Prescriptions to change (as an extension or narrowing) the scope of social standards, cancel or change the scope of rights and responsibilities, benefits, compensation and guarantees provided by other laws, must be made by amending it in such legal acts. Only by following this approach, we are able to ensure proper implementation of the principle of legality in the budget and other areas. Issues relating to the definition of the legal nature of the Law on the State Budget and its object was in view of these scientists-financiers as L.K. Voronova, I.B. Zaveruha, O.B. Zaveruha, S.T. Kadkalenko, O.A. Musica-Stefanchuk, A.A. Nechay, M.I. Piskotin, I.N. Yushchenko and others. At the same time, the lack of a clear approach regarding designated theme indicates the need for its further development. Thus, the purpose of this article is to analyze the decisions of the Constitutional Court of Ukraine, concerning the definition of the subject matter of the Law on the State Budget. Based on the analysis of the decisions of the Constitutional Court of Ukraine, concerning the definition of the subject matter of the Law on State Budget of Ukraine, stressed the existence of unjustified extension of the latter, which leads to a violation of the budget legislation and the formation of false legal practice. It was stated that any provisions relating to changes in the scope of social standards, the scope of rights and responsibilities, benefits, compensation and guarantees provided by other laws, must be made by amending it in such legal acts, rather than be defined by the Law on the State Budget. It is proved that taking into account the systemic connection Art. 95 of the Constitution of Ukraine and art. 40 of the Budget Code of Ukraine, the Law on the State Budget must contain a clearly defined position. The amount of expenses, their distribution, including those due to funded pensions and other social benefits provided in attachment № 3 to the Law on State Budget of Ukraine for 2016. Such attachments are an integral part of the Law on State Budget of Ukraine for the relevant year. They are approved only by the Verkhovna Rada of Ukraine, as stated in Art. 95 of the Constitution of Ukraine, so their size can not be changed by the Cabinet of Ministers of Ukraine. With regard to para. 11 of part 1of Art. 40 of the Budget Code of Ukraine, these additional provisions should regulate the process of budget execution in terms of implementation of the already approved budget for the relevant year. Thus, the Law on State Budget, which has its defined Budget Code of Ukraine, subject of regulation, could not contain provisions other than those which provided for in Art. 40 of this codified act, even those that would implement additional social guarantees and expand their volume. Prescriptions to change (as an extension or narrowing) the scope of social standards, cancel or change the scope of rights and responsibilities, benefits, compensation and guarantees provided by other laws, must be made by amending it in such legal acts. Only by following this approach, we are able to ensure proper implementation of the principle of legality in the budget and other areas.

112-118

Authors: Валерій Федорович Оболенцев

The article points to the topicality of the phenomenon of corruption in Ukraine. Substantiates the feasibility of using a systematic approach in the implementation of anti-corruption compliance measures. The content and sequence of system analysis of this activity. Anticorruption compliance it is possible to determine as aprophylaxis of corruption offences within the limits of currentthe systems is perspective. Measures of anticorruptionare the function of subjects of private sphere. Sequence of analysis of the systems of measures of anticorruption compliance. At first carry out preparatory procedures of formal characteroutline the aim of the investigated subject of private sphere, his setting and function, borders and surroundings, formulate a problem, context of her consideration, determine the point of view of analyst, aim and task of analysis of the systems. Farther carry out collection and working of information about the system. Conduct four types of analysis. Historical – set the genetic aspect of the system. In morphological set elements and structure, find out conformities to law of connections of elements of the system and degree of her complication. Functional analysis and adapting activity. Farther carry out informative description of the system. Lay out information about properties of information of the system, her informative streams. The analysis of the systems of measures of anticorruption compliance allows to design corruption risks and corruption processes. A design allows evidently to show functioning of the system, processes in the system.

129-138

Authors: Olga Oleksandrivna Stativka

The study of historiography scientific literature of legal regime of nature reserved fund has been found that the formation of the science about the nature reserved fund took place within the natural sciences and associated with the names of Humboldt, Dokuchaiev, Kozhevnikov, Anuchin and others. Formation of legal Sciences about the Nature Reserve Fund is in the 60’s of XX century by the emergence of various textbooks and scientific articles among jurists which highlighted some aspects of the legal problems of organization, protection, effective land use of the nature reserved fund. In particular, legal issues of functioning of the nature reserved fund were in attention of such scholars as O. Kolbasov, V. Muntean, V. Petrov, Iu. Shemshuchenko, V. Hryhoryev. The first dissertation in this area were protected in 70’s of XX century by V. Yemelianova and L. Okorokova. In addition, the examine the nature reserve fund as part of the ecological network is the specificity of this scientific paper, so there have been explored the current state of scientific literature in the field of legal regulation of ecological network. The result revealed that the legal basis of functioning ecological networks remains unexplored in science. In conclusions stated that scientific views on the concept and sense of nature reserved fund transformed from the level of functioning of the particular elements to the formation of the nature reserve fund and consider it as part of the ecological network throughout the history.

152-164

Authors: Анастасія Геннадіївна Боровицька

Water resources in the system of sustainable development of Ukraine are some of strategic and vital natural resources. However, such resource like water, is dependent to the influence of technical progress, and if contaminated, perhaps can be exhausted. Therefore, in modern conditions of the rapid economic development of our state, there is a need in the formation and implementation of state policy of sustainable water use, which will allow us to solve complex urgent problems (inefficient water use, unreasonable water use strategy, unsatisfactory construction and operation of water management systems, the lack of clear environmental standards and criteria, and others) in the shortest possible time. In our opinion the solution of the problems, which were noted above, is impossible without a complete display of dynamic natural environment and monitoring the impact of human activities on the integration of the virtual playback of anthropogenic and natural environment. A lot of scientists continue to study the legal regulation of maintenance of the natural resource cadastres, including water cadastre and the procedural regulation of various aspects of activity of management bodies in the sphere of ecology, including cadastral, in particular, A. P. Getman, V. M. Yermolenko, I. I. Karakash, V. I. Andreitsev, V. V. Nosik, Y. S. Shemshuchenko, Z. V. Yaremak and others. Despite their significant contribution to the development of the problems in this area, there was put out of sight a special study of the state water cadastre and cadastral process that is relevant nowadays. Purpose of the article is the study of the definitions «maintenance of the state water cadastre» and «cadastral process», as well as the determination and justification of the corresponding relationship between the specified definitions. The maintenance of cadastre is a complex notion, which represents not only the safekeeping of electronic and/or paper information carrier within the prescribed period, but the rapid introduction into the inventory of all information received from all state bodies authorized to maintain the cadastre. Maintenance of state water cadastre can be understood in a broad and narrow sense. Being closely linked to natural resource management the cadastral process does not cover all management activities, but only that part, the implementation of which contains the application of substantive law. Beyond the cadastral process there is located the part of management, which is associated with the formation of bodies of public administration. Such activity is controlled by the administrative-legal regulations and is related to the sphere of legal regulation of administrative law, and therefore is a component of the administrative process. Due to the diversity of procedural steps of the cadastral process it has a certain commonality. Including certain types of procedural activities of the competent authorities, which are regulated by the procedural rules of environmental law, the cadastral process is united by the common subject of legal regulation as a specific group of the public relations in natural resources management. The analysis of theoretical studies concerning the raised question enables us to draw the following conclusions that in essence the term «cadastral process» applies not only to the state water cadastre, but also to other types of natural resources cadastres (the state land cadastre, the state forest cadastre, the state cadastre of the animal world, the state cadastre of occurrence and manifestations of minerals and others). If you compare the correlation of such notions as «maintenance» and «cadastral process», you come to the conclusion that these terms are related as the part and the whole. In our case, the cadastral process will appear as a general term, and maintaining the state water cadastre will appear as its part which, accordingly, has certain peculiarities caused by specificity of the object in towards of which the cadastre has been maintained. So, the process of gathering information, view received data, quantitative and qualitative characteristics of a natural object will be specific to each cadastre, and so on.

173-181

Authors: Іван Володимирович Назаров

In article are analyzed the history of development and formation of modern structure of judicial system of Federal Republic Germany, the factors which have affected kinds of specialisation of courts of Germany, an order of interaction of courts with other state bodies. The historical stages of development in German law and their influence on the formation of the judicial system and the types of ships on Our projects today.Paid the attention to mechanisms of reduction of judicial system of Germany in conformity to uniform European standards and possibility of application of positive experience of the country during judicial reform in Ukraine.

190-198

Authors: Тетяна Комарова

The article is devoted to the research of CJEU’s practice concerning the interpretation of national interests of the European Union’s Member States in resolving disputes submitted for its consideration. Analyzed decisions of the CJEU allows to trace its position on the matter and the evolution of practices regarding the balance between different interests – the interests of the Union and the States. Also in article there are analyzed actual problems of the modern European Union law (human rights, free enterprise, etc.), its institutional system and direct the judicial authorities in the EU. For modern evolution of the EU it is highly important to have orientation not only on common interests of the EU but on interests of members states. In the late jurisprudence of the Court of Justice of the European Union there is a tendency of retreating from strict practice of favoring only to interests of the EU and interpreting interests of members states in order to find the balance between two types of interest especially after amendments of Lisbon treaty. In the context of this research it should be noted that the Court of Justice of the European Union during interpretation of national interests of member states uses the principle of self-restriction in interpretation of law. Herewith the Court quite flexible uses this principle and this leads to appearance of new highly important precedents. It should be underlined that the Court has a negative to the application of acte claire doctrine because of some risk of been bound to act only in one direction without taking into consideration any possible changes of judicial practice in future. The conclusion is made that for the strengthening of European integration it is highly important not only the jurisprudence of the Court, but the activity of constitutional courts of member states and also their parliaments, which under Lisbon treaty got a lot of democratic competences. Exactly the cooperation of these key subjects of European integration will help in future to avoid the collisions of interests of member-states and of the EU.