PROBLEMS OF LEGALITY

22-33

Authors: Sydorenko O. O.

The content of the concept of legal consciousness from the point of view of modern scientific developments on this issue is considered. The article is devoted to the analysis of the interrelations of the legal consciousness and the legal system in the context of the European integration processes in Ukraine. The conclusion is argued: the processes that occur in society inevitably affect the legal consciousness and the development of new branches of law. Further development of the legal system of Ukraine and its acquisition of qualitatively new properties that would contribute to the development of civil society in the state and the establishment of the rule of law are possible only in the context of the development of legal consciousness. The development of the legal system of Ukraine has traditionally been a priority area of modern science research in the theory of state and law. The system of law is the regulatory core of the emerging legal system, based on the legal ideology of a particular state and at the same time serving as the normative basis of behavior in the field of law. The dialectic of the components of legal reality is due to their reflection in human consciousness and the embodiment of this process in other legal phenomena. But at the same time, one should not abstract from the generative role of legal consciousness. A significant factor that raises the theoretical relevance of this topic is that the emphasis on the theoretical level was mostly given to the normative component of the legal system, which somewhat artificially pushed issues related to the development of justice into the background. However, the practice of law-making processes in Ukraine proved the need for special legal research on the relationship between the dynamics of legal consciousness and the development of the legal system as a whole. Realization of legal norms and increase of efficiency of legal regulation necessitate study of all factors that promote normal development of legal life of society and legal relations. One of them is the legal consciousness, since just as the functioning of the legal system is impossible without the subjects of law, and the existence of the subjects themselves can’t be presented separately from the legal consciousness. Quite often, ineffectiveness and ineffectiveness of legal regulation are explained not only by the low level of legal acts in force, but also by the factor in rejecting the legal consciousness of the society of these legal norms or entire legal institutions. Legal consciousness is directly formed in the person himself and in fact with the person himself. She goes along with her path of development; in this context one can draw an analogy with the formation of the individual. And moreover, the person as the basis of the natural and social world, its development, forms the ideas of the legal field, that is, reflects through its legal consciousness the foundations of legal reality around them.

43-53

Authors: Kuleshov D. V.

In the article in a consistent level researching the story behind, the process of global public perception valuable meaning of judicial independent idea, as well as stages of implementation of its idea in the function of direct Constitutional principle into organization and functioning the state mechanism of every modern democracy and legal-state. Pointed that realization of its important politico-legal idea in the society’s and the state’s real life is supported the proper constitutionally legal mechanism. Such mechanism usually means the integral system of statutory and regulatory as well as managerially institutional forms and recourses, which in aggregate provide social authority of judiciary, impartial justice in the form of fair and legally judgments, and indisputable and timely execution of it by all parties of public relationships free of its legal status and social status. In the article there is integrated analysis of legal framework and the system of the state and non-state institutions partial constitutionally legal mechanism of judiciary independence supporting as well as problem spheres of it’s functionality on the modern stage of state-legal development of Ukraine. The conclusion is made that existence of statutory-regulatory regulation and institutional system totally are sufficient qualitative for the reaching the desired aim – the providing the real independence and high public authority of judiciary. The main issues were analyzed which preventing for real judiciary independence, for the main important of them are placed: the practice of unjustice adjudgment because of corruption factors; not enough high level of politico-legal culture of the judiciary establishment part; aspiration of representatives of other state authorities and certain political forces to influence for administration of justice; popularity of non-executions practice for judgments which came into legal force.

65-79

Authors: Sakara Nataliia Yuriyivna

In the article the author tries to depart from the previous conventional approach according to which the model of civil procedure is characterized only as adversarial one. The author’s approach to the definition of model of civil procedure is based on the requirements of art. 6 (1) ECHR and the judgments of the Court, where the content and the scope of the right to a fair trial are determined. Abovementioned has allowed to conduct a complex study and to analyze the institutional, structural-functional, substantive, and procedural features of such model. From the institutional point of view civil procedure should involve the judicial activity of courts directly integrated into the Judicial System of Ukraine, other jurisdictional bodies as well as enforcement bodies. This order is internally structured and covers both disputable and “conditionally” disputable proceedings and law-enforcement procedures, as well as stages of logical and functional character. In this regard, despite the existence of three procedural codes in Ukraine civil, economic and administrative proceedings should be included to a single civil procedure and, accordingly, be carried out in compliance with the fundamental principles of fair trial. The latter provide, firstly, that the access to jurisdictional and enforcement bodies should not be burdened by excessive legal or economic obstacles. Secondly, the case hearing should occur in compliance with the due (fair) procedure. Thirdly, the hearing should be public. Fourthly, there should be reasonable time of a trial and execution. Fifthly, the jurisdictional body should be independent, unbiased and established by law. Sixthly, enforcement of decisions of jurisdictional bodies should be carried out without undue delay. Civil procedure is considered to be the order for resolving civil cases according to the fundamental principles of fair trial, which is taken by courts in civil, economic and in certain occasions, administrative proceedings as well as, jurisdictional bodies and execution of court decisions by bailiffs and other authorities which make an execution of court judgments and decision of other authorities.

94-103

Authors: Tkachuk A.O.

The issues of the status of good faith of participants in civil proceedings as an independent principle are investigated, taking into account the degree of its legal regulation and the existence of a legislative prohibition to abuse civil procedural rights. An outline is given of the state of development of the problem in the scientific literature, as well as legislative regulation in procedural legislation. It has been argued that the modernization of civil procedural law in some way influenced the modification of a competitive model of civil justice, based on its tasks - fair, impartial and timely consideration and resolution of civil cases with the aim of effective protection of violated, unrecognized or challenged rights, freedoms or interests of individuals, rights and the interests of legal entities, the interests of the state. This factor has led to a rethinking of the principles of civil justice as a cornerstone of the legal regulation of civil procedural legal relations, Considering that in the competitive model of civil justice, the implementation of the procedural rights and procedural obligations by participants in civil proceedings is essential in the presence of the provision contained in part 1 article 44 of the Civil Procedure Code of Ukraine, which provides that participants in the trial and their representatives should use procedural rights in good faith and abuse of procedural rights is prohibited. The author proves that the analysis of procedural legislation and scientific literature on the outlined problem gives grounds to assert that in the system of principles of civil justice the principle of good faith of participants in civil justice has independent status, structural content and defines: 1) the prohibition of abuse of procedural rights; 2) the requirement of honest performance of procedural duties; 3) the prohibition of contradictory behavior of the parties, or the rule of procedural estoppel; 4) the prohibition of other illegal impediments to the administration of justice (for example, the prohibition of misleading the court, the prohibition of the use of lost procedural powers, etc.).

116-127

Authors: Dovgusha M. P.

The proposed article is devoted to the study of the general characteristics of the contract of transport forwarding. Despite its legislative recognition, as well as the existence of numerous empirical papers are devoted to the study of this obligation, problems with the application, implementation and regulation of this legal design still exist. We made the conclusion that the peculiarity of the freight forwarding contract is the possibility of the freight forwarder to provide services of both actual (technical) and legal nature. In the Ukrainian modern situation, the problem of legal regulation of the transport forwarding contract is becoming more and more relevant, despite the fact that it is sufficiently explored from the point of view of science. This situation is conditioned by several factors, one of which is the successful geographical position of our country and its size. Due to the existence of such an obligation, as the contract of transport forwarding, enterprises or subjects of civil law relations are exempt from unnecessary problems associated with the transportation of cargo. The contract of transport forwarding is the most successful legal construction due to which the most effective cargo transportation is carried out not only from the point of view of the client - a business entity or a participant in civil law relations, but also from the point of view of the freight forwarder. After all, this transaction allows you to optimize their costs - both financial and labor. But for quite a long time the studied contract did not find its legislative fixation, which is explained by its complex nature. But since 2004, since the adoption of the Civil Code of Ukraine, an official legislative "recognition" of the existence of a freight forwarding agreement took place. Thus, Chapter 65 of the Civil Code of Ukraine contains seven articles on the regulation of the said treaty. They establish the concept of the contract of transport forwarding, as well as the requirements for its form. The economic code of Ukraine regulating relations between business entities contains only one article - 316, devoted to regulating the contract of transport forwarding. July 1, 2004 came into force a special regulatory act regulating activities in the field of transport forwarding - the Law of Ukraine "On transport and forwarding activities." It establishes the procedure for carrying out freight forwarding activities. Part 1 of Art. 8 and p. 2 of Art. 16 of the Law of Ukraine "On Freight Forwarding Activity" introduced the concept of "rules of transport and freight forwarding" into the system of legal relations of the freight forwarder and cargo owner. But these rules should have been approved by the government of Ukraine, and to date this has not happened. Despite the legislative recognition of the contract of transport forwarding, as well as the existence of numerous scientific works devoted to the study of this obligation, but problems with the application, implementation and regulation of this legal design still exist. The proposed article is devoted to the study of the general characteristics of the contract of transport forwarding.

137-144

Authors: Ellina Yurchenko

In the article, the author considers the current state of the market of agricultural land use rights in Ukraine and defines the main factors that influence the slowdown of land market development. Today in fact there is a market of agricultural land use rights, which is developing a limited legal framework, is "gray". This leads to the fact that owners of land may not know who are the actual users of their land. Nevertheless land users trying to act within the legal framework so without violating the law. In the article, the author leads the main ways of acquiring the right of agricultural land use at mergers and acquisitions in agribusiness. Agreement of mergers and acquisitions in agribusiness have their own characteristics and significantly different from concluding similar agreements in other areas of business. Often, agricultural enterprises, such as agroholdings, are interested in increasing the amount of cultivated agricultural land, so they conclude mergers and acquisitions agreements, acquiring rights to other agricultural enterprises, as well as their real estate, production facilities, agricultural land and rights to it. Mergers and acquisitions in agribusiness is through contracts of sale of land bank or corporate rights or single property complex. In order to create the conditions for the development of the land market in Ukraine, the author substantiates the necessity of legislative regulation of the possibility of selling the right of agricultural land use. According to the author, the pluralism of the ways of acquiring the right of agricultural land use will enable land users to choose the most appropriate option for consolidation of land and increase the "land bank" by law, also facilitate "out of the shadows" of relations in agricultural land use.

154-165

Authors: Shulzhuk T. R.

The scientific article describes the legal problem of tax legal personality of holding companies. The raised issue is actual because of fact that within the tax legislation there is no definition of the holding as a taxpayer. In addition, the tax law is not acquainted with the legal structure that could reflect the depth of legal relationships that hold the holding structure. Thus, it was concluded that the legal structure of the holding as an entity did not receive proper inter-branch unification in the tax law. Meanwhile, the author analyzed the essence and features of tax personality and concluded that the features of holding structures may be reflected in the tax law of Ukraine. When author investigating legislation, the he points out that the legal institution of the consolidated taxpayer is the legal structure that best reflects the legal characteristics of the holding structures. The author argues that the legal institute of the consolidated taxpayer will have a positive effect on the economy, as it will create a coherent and logical system of tax legal norms. The author is convinced that the tax consolidation regime will optimally take into account the interests of investors, since in this case, the holding companies and subsidiaries will be effectively involved in the logically structured system of the consolidated tax payer. On the other hand, the legal institute of the consolidated taxpayer will take into account state interests in the form of systematic filling of the state budget by taxation of significant financial capital. The author notes that despite the advantages of the legal institution of the consolidated taxpayer, the indicated tax mechanism needs a notable improvement and taking into consideration a number of peculiarities. The consolidated taxpayer is a complex legal fact that requires harmonization of the simultaneous implementation of various conditions that should ensure the legal existence of the consolidated taxpayer. In addition, the emergence of the consolidated taxpayer raises the need for its legal registration. The author is convinced that the study of the possibility of developing a legal institute of the consolidated taxpayer is the correct benchmark for the implementation of European legislation in the national legal system.

175-184

Authors: Shostko O. Y.,

The article is devoted to the consideration of the main quantitative and qualitative statistical indicators of the results of activities of law enforcement bodies and courts in detection of corruption offenses for a period from 2014 to 2017. The annual official data show that 2400 people were exposed in committing criminal corruption offenses in 2017, which is 22 % more than in the previous year. The number of persons convicted for committed corruption crimes was as follows: in 2015 –755, in2016 – 492 persons, in 2017 the number has increased threefold – to 1692 persons. But only 6 % of the perpetrators were imprisoned (107 persons). 50 % of corruption cases were penalized by a fine as main punishment. The author stressed the fact that in 2014–2016 top-ranked state officials and civil servants of 1–2 categories (the highest group) were not convicted for corruption criminal offenses. 2 civil servants of this category were convicted in 2017. For the mentioned term of time, no member of Verkhovna Rada was convicted of criminal corruption offenses either. Damages caused by criminal corruption offenses (after criminal proceedings finished by investigation) amounted to 16, 329 billion UAH (approximately 142,36 million Euros). Damages repaid amounted to 312,5 million UAH, which is approximately 2 % of the total amount of material damages. Finally, we conclude that the system of criminal justice cannot adequately detect, investigate, and prosecute corrupt officials since the system is just as corrupt as other state institutions. Despite the proclaimed and partly implemented reforms, the self-cleaning of law enforcement agencies from corrupt officials did not take place. Subjects of political corruption remain intact. The official statistics show a distorted "picture of the fight" with criminal corruption offenses, which are almost entirely in a latent state.

201-213

Authors: Komarova T. V.

The effectiveness of the functioning of the judiciary in the European Union depends on many factors, among which the way of formation of judicial office, namely the appointment of judges and Advocates General of the Court of Justice and of the General Court, should be highlighted. In this regard, the article explores the procedures of formation of the judicial office in the EU and the procedural innovations that have emerged after theLisbonreform. Prior to the reform, judges and Advocates General were appointed by common agreement of the governments of the Member States and this process was of a closed nature, since the nomination of candidates belongs to the internal competence of the Member States. After theLisbonchanges, the appointment takes place only after consultation with a special panel that makes a conclusion on the suitability of the candidates. Despite the fact that the conclusions of the panels are of a recommendatory character, the Member States follow them and, in the case of a negative opinion, remove the candidate from the ballot. Separately, the criteria for evaluating candidates are considered, of which the panel distinguishes six main ones: the candidate's ability to legal analysis, professional experience, the ability to perform the duties of a judge, language abilities, the ability to work in a team in an international environment in which several legal systems are represented and concerning impartiality, fairness and honesty of the candidate. A new stage of consultation with the judicial selection panel has shaped the trend towards democratization of this process and bringing it closer to pan-European standards. This allowed the author to state that the process of forming the judicial office in the EU has become more transparent and fair, which serves as one of the institutional guarantees for proper legal protection in theUnion.

223-228

Authors: Pamuji Kadar

Local taxes contribute to local revenue of around 50 %. The policy of earmarking tax in Law No. 28 of 2009 on Regional Tax affirms the use of tax for development fund that can be enjoyed directly by taxpayers. Earmarking tax ensures that tax revenues are used for development and sustainability of local development funding. Furthermore, local government cannot delay development activities on the reason of fund unavailability. The purpose of this article is to analyze the prospect of earmarking tax policy in supporting sustainable regional development. This study applied library research. Results of this study show that if earmarking tax policy is compared with the general tax definition as a non-lead payment, its contribution in tax payment is unjustifiable. However, if considering that the local tax is levied by local governments on the local taxpayer performing taxable acts and allocated to the local government budget for financing regional development, so it becomes important to assure that it will return to the community. Implementation of earmarking tax ensures that tax revenue is allocated to the most appropriate sectors and relevant with the objective of tax collection. In conclusion, the earmarking tax policy emphasizes the role of local taxes in supporting development in regions ensuring sustainability of regional development fund.