Economics and Law

3-12

Authors: O.A. Belianevych

The article considers topical issues of constitutional and legal protection of state property as public property. The objective necessity of functioning of the public sector of the economy follows from the constitutional provisions on the obligation of the state to ensure the social orientation of the economy (part 2 of Article 13 of the Constitution) and political, economic and ideological diversity of public life in Ukraine (part 1 of Article 15 of the Constitution). It is substantiated that the provisions of Section I of the Law of Ukraine "On repealing the Law of Ukraine "On the list of state property objects not subject to privatization" do not comply with the provisions of Articles 1, parts one and two of Article 8 part 2 of Article 19, part four of Article 13, Article 16, part 1 of Article 17 of the Constitution of Ukraine (in their sys temlogical connection). It is determined that a mandatory element of the system of constitutional and legal protection of state property is the norm of paragraph 36 of part 1 of Article 85 of the Constitution of Ukraine, according to which the Verkhovna Rada of Ukraine approves the list of state property not subject to privatization. Defining the range of objects that are not subject to privatization, the legislator uses such a technical and legal technique as the simultaneous enshrinement in the text of the Law "On privatization of state property" types of state property that are not subject to privatization (currently these are objects of national importance, and state-owned enterprises) and enshrining in a separate law a list of objects of state property rights, the privatization of which is not allowed. The norms of such laws form an integral element of the special legal regime of state property. Taking into account the legal positions of the Constitutional Court of Ukraine, it is determined that the list of objects of state property that are not subject to privatization may be subject to change taking into account the needs of socio-economic development of the country. It is substantiated that the repeal of the Law of Ukraine "On the list of objects of state property that is not subject to privatization" means the emergence of a gap in the system of legal protection of state property relations, which can not be filled in any other way than the adoption of the relevant law, and which will negatively affect the state’s performance of its social functions.

27-33

Authors: R.B. Poliakov

The article is devoted to the formation and development of the competitive process in independent Ukraine, namely in the 90s of the twentieth century, during its economic downturn. The normative legal acts of that period, which regulated the insolvency relations and the corresponding Explanations of the Supreme Arbitration Court of Ukraine, are studied. It is emphasized that the first act of the competitive process of independent Ukraine — the Bankruptcy Law at 1992, proved to be very simple to solve the problems of insolvency of large industrial enterprises. The author accentuates that this law in its essence resembled the competitive process of the XIX century, where there was only a liquidation procedure. The lack of a full-fledged financial recovery procedure, traditional measures of the bankruptcy process, a professional arbitration manager and legal deadlines for the regulation of bankruptcy proceedings led to litigation and unjustified liquidation of strategic industrial enterprises for the state. It is argued that the purpose of the Explanations of the Supreme Arbitration Court of Ukraine dated 18.11.1998 was to increase the efficiency of the law itself, mitigate the negative consequences of its application, resolve problems of simultaneous settlement of commercial disputes in litigation with consideration of monetary claims of creditors in bankruptcy proceedings. The important points of this Clarification are emphasized concerning the application of procedural norms, the legal status of the participants in the case, the structure and content of the application for initiating bankruptcy proceedings, the functions of the court, the work of the liquidation commission, etc. It is noted that the Clarification not only facilitated the work of arbitration courts and participants in the bankruptcy proceedings, but also allowed to properly understand the essence of the bankruptcy process itself, previously unknown to the legal science of Ukraine. It is argued that the Bankruptcy Law at 1999 was of revolutionary significance for the development of the bankruptcy process in Ukraine. He significantly intensified the activities of arbitration courts. Significantly increased the number of bankruptcy cases initiated by debtors, including large industrial enterprises. In many cases, the courts began to apply reorganization and amicable agreement procedures. There are differences between the Bankruptcy Laws at 1992 and 1999, in particular in their direction. As a result of the study, the author concludes that the benefits provided by the Bankruptcy Law of 1999 could be used by debtors in respect of whom cases were initiated under the "old" version of the Law. The activities of arbitration managers allowed to maximize the efficiency of the bankruptcy procedure in terms of financial recovery of debtors and repayment of creditors’ claims.

43-51

Authors: Yu.I. Shvets

The article is devoted to a comprehensive study of German legislation regarding the right regulation of the work of supervisory boards of joint stock companies — banks. During the writing of the article, the main legislative acts of Germany, the current version of which was published on the official website of the Federal Ministry of Justice and Consumer Protection (Bundesministeriums der Justiz und für Verbraucherschutz), were studied and analyzed, as well as scientific articles by German scientists and practitioners. Corporate legislation of Germany is compared with the legislation of Ukraine regarding the legal regulation of the activity of banks, which are joint stock companies. It is established that the banking activity should be performed by a legal entity in the form of a joint stock company. The two-tier system of governance with supervisory boards and executive boards, as well as a clear division of powers of management and control between these bodies, must be mandatory for banks. Suggestions were made on the possibility of electing not only shareholders and independent directors, but also other bank stakeholders, to the Supervisory Boards, in particular the election of employees, trade unions and, as a consequence, strengthening the influence of the labor collective on the management of the company. Emphasis is placed on the existence in German corporate law of provisions allowing the election, in certain cases, of members of the supervisory boards in court for the application of the list of persons defined by law. It is concluded that such practice is not practicable in Ukraine at this time due to the lack of speed of court proceedings and the possibility of unfair actions to influence the joint stock company on this basis. It is proposed to provide a mechanism for appealing the decisions of the Supervisory Board by the company Executive Board. The implementation of these innovations could strengthen the system of checks and balances in the management of the bank, namely to ensure mutual control of the supervisory board and the executive board of the bank, as well as to make it impossible (to prevent) the possibility of making decisions that could lead to negative consequences in the activity of the bank. There are a number of other statements and suggestions that can be used in further legislative work to improve the legal regulation of corporate governance in Ukraine.

66-78

Authors: V.V. Andreitsev

The article is devoted to an actual topic on the economic and environmental risk of activities related to high risk objects. Such topic has not been practically investigated in domestic economic and legal science. The scientific article contains the key words related to the economic and ecological risk of the mentioned activity, substantiates its scientific and practical relevance in the context of legal support in the conditions of sustainable socio-economic development, as well as guaranteeing the ecological and overall safety of activities related to the high-risk objects. The author notes the research of scientists who have developed problems of economic, commercial, industrial, economic risk, in particular its legal aspects: Prof. A.G. Bobkova, prof. O.V. Bigniak, prof. O.M. Vinnik, prof. I.F. Koval, prof. V.L. Musiyaka, prof. V.V. Reznikova, prof. N.O. Saniakhmetova, prof. R.O. Stephanchuk and others. These scientists have revealed character and peculiarities of risks in economic activity. Some of them have also focused attention on the establishment of legislative restrictions on environmental safety of production, compliance with safety requirements for life and health of people. The author also points out the scientific works on legal environmental risk, highlights peculiarities of its legal nature. The article thoroughly and comprehensively presents the main results of the study, analyzes laws and other normative acts of Ukraine, the United Nations Conventions and documents of the European Union. This allowed the author to conclude on the presence of economic and environmental risk in terms of its adverse effects on the environment, life and health of the population. Based on the analysis of theoretical sources, evaluation of the domestic legislation, the author proposes the definition of economic and environmental risk, as a formal legal basis for the emergence of obligations of economic entities to eliminate the risk in the event of this risk, eliminate its consequences. He also proposes to introduce appropriate amendments to the Article 16 of the Constitution of Ukraine and the Economic Code of Ukraine, regarding the establishment of additional security guarantees for the security of economic activity related to high-risk objects.

91-100

Authors: A.V. Ustymenko

Today, the consumer of banking services is actually a weak party, being in a wide range of financial (banking) relations. Due to the different status of the parties, one being able to dictate their conditions in the legal relationship and the other having no real influence on the counterparty. One of the legal guarantees is the extension of the scope of contractual freedom also to bank deposit relations, account opening and servicing, credit relations, etc. Accordingly, the limitation inherent in the very nature of contractual freedom is an integral part of it. In this connection, the role of contractual freedom in the private and public legal sphere, which is characterized by the existence of State coercion, is of particular interest. The banking sector of the economy proves the existence of contractual freedom in organic unity with its limitations. A practical problem is the effect on the contractual freedom of public authority or a body authorized to administer justice. This creates an imbalance of interest in favor of public law against private law. The purpose of the article is to study the impact, place and role of the principle of freedom of contract at the stages of conclusion, modification and termination of contracts in the branch of banking services. The article examines the relations of the bank and its clients within the framework of such contractual types (types) which are distinguished by publicity in the sense of article 633 of the Ukrainian Civil Code: bank account contract, bank deposit contract. The author’s vision of the principle of freedom of contract through the dialectic of unity of contract freedom and its limitations is presented and justified. This approach is the basis for the study of bank-client relations. The conditions for limiting the principle of freedom of contract beyond the elements of the traditional triad in the banking sphere at the stages of conclusion, performance, modification and termination are also described. The article affirms the existence of limitations to the principle of freedom of contract not only by law but also by the principles of law (general and special), by contract, by the customs of business and by the activities of the State in the form of administrative and judicial measures.