PROBLEMS OF LEGALITY

8-17

Authors: Shygal D. A.

Systematization and interpretation of the obtained results is a logical conclusion of the comparative historical and legal analysis. In spite of the fact that the researcher already has a certain understanding of the specific character of the objects being compared at the stage of choosing the topic of the comparative research work, he can finally formulate his conclusions only after a large-scale comparison of them. The necessity of the systematization of the comparative historical and legal research results is conditioned by several factors. First of all, this is the number of the objects being compared and also the variety of the information that is being read by the researcher during this process and becomes open to generalization. The systematization puts in order and coherence a large flow of information about the objects being compared, and its purpose is to bring a great number of the objects being examined or the knowledge of them to a certain number of groups and to arrange the latter in accordance with the requirements of subordination, and their hierarchy. The systematization of the scientific knowledge results is of great importance for the comparative historical and legal research. In some scientific works the systematization is used to solve a wide variety of problems starting with the primary ordering of factual and empirical material and ending with various forms of the knowledge cataloguing. The systematic form of the scientific knowledge enables a comparative historian to survey a large aggregate of historical and legal phenomena, helps to orientate in the variety of signs of the historical and legal objects being compared, to reveal the order in them. The systematization allows you to simplify complexity, to see the elements behind the certain multitude it consists of. The methods of the systematization allow saving the efforts of the researcher, avoiding hard necessity for the individual direct studying of the whole variety of the objects under study, provide the possibility of generalized and indirect knowledge of them. Besides, the systematization of the comparative historical and legal research results is the base which the comparative historian formulates the conclusions on from his work, and also realizes final concentrated valuation of them. The article examines the ways and forms of systematization of the results of a comparative historical and legal analysis. The main conclusions that can be obtained during the comparison of historical and legal objects are considered. The multidimensionality of the organization and presentation of information in the course of a comparative study is characterized. The article analyzes the meaning of typology at the stage of ordering the results of comparative work and its correlation with the classification. Conclusions about new ways of generalizing the data obtained in the process of carrying out the comparative historical and legal research are made.

31-41

Authors: Karnaukh B. P.

The article addresses the issue of causation in cases where there are two successive events, each of which is sufficient to cause the same damage. Such cases are considered under the title ‘successive causes’ or ‘duplicated harm’. In such a scenario the issue arises: which of the two evens shall be considered as a legal cause of the damage. On the one hand, if the concept of damage denotes actual changes in the physical world, then each of the events can be considered as a cause of damage. However, if the concept of damage denotes economic losses (resulting from the changes in physical world), then only the first event can be considered as a cause of damage. The author focuses on the cases involving harm to plaintiff’s health. The peculiarity of these cases is that the loss of earning capacity, in contrast to property damage, is continuous. Deciding on which of the two successive injuries shall be considered as a legal cause of the damage necessitates navigating through different tenets of tort law, which may contradict each other. Among those tenets there are: principle of full compensation (restitutio in integrum), ‘vicissitudes principle’, the principle that defendant ‘must take the victim as he finds him’ and ‘court does not speculate when it knows’. However, the paramount tenet is the principle of the full compensation, while other tenets must be seen as subsidiary. The author analyzes English case law, in particular cases of Baker v. Willoughby and Jobling v Associated Dairies Ltd. Courts’ arguments are scrutinized. Eventually the author argues in favor of the view that after the occurrence of the second incident the loss of earning capacity shall be considered as having two causes at the same time. This opens the way for the application of the regime of joint and several liability. Nevertheless, it should be borne in mind that injuries may and usually does cause moral damage as well. And the issue of compensating moral damage have to be contemplated separately.

54-64

Authors: Shymko A. R.

The article addresses Ukrainian legislation that governs hearing economic cases with a foreign element. Relevant statutes in the realm have been analyzed. The algorithm for determining the applicable legislation is investigated. The main drawbacks of the laws in force are spotlighted and the ways for further improvement are envisaged. The author identifies the main risks business entities can encounter when a case involving foreign element is litigated. The grounds for consideration by commercial courts of Ukraine of cases with a foreign element are investigated. The author notices that the case law on these issues is inconsistent. Among the vexed questions related to the category of economic cases at hand, the following deserve special attention: determination of jurisdiction of the case; determination of the applicable law; features of proof; recognition and enforcement of court decisions abroad. The author concludes that the choice of a foreign court or law should be conscious and clearly motivated, as this is very important for judicial protection. The attention is focused on the complicated interaction between international and national law when economic dispute involving foreign element is considered by the court. The modern tendencies of judicial practice in this sphere are discovered. The typical procedural errors of the parties to a dispute are summarized and the problems of law enforcement are covered. The author analyses effective legal methods for considering a dispute on the basis of Ukraine legislation. The article contains recommendations for courts on learning the content and interpretation of foreign law for the purpose of its application in cases involving foreign element. The application of the institute of contractual jurisdiction in commercial cases with a foreign element is investigated. The author provides practical recommendations to business entities in order to effectively protect their rights in court. The author concluded that litigants should take an active part in the process of clarifying the content of foreign law.

87-100

Authors: Bytiak Yu. P.

Administrative liability, as a type of legal coercion, is important for maintaining law and order, protection of an individual, protection of human rights and freedoms, performance of tasks and functions of the state. The description of administrative liability, given in the article, is connected with its inherent features and peculiarities of an administrative offense (misdemeanour). The most significant attention is paid to the issue, connected with public danger of an illegal act, taking into account the conceptual changes in criminal legislation, and, thus, criminal liability and as a consequence of administrative liability. The concept of reforming the Criminal Legislation provides for the preparation in addition to the Criminal Code of Ukraine, the Code (Law) on Criminal Offenses (misdemeanours) and the Code of Ukraine on Administrative Offenses. Taking into account the emergence of the phenomenon of “criminal misdemeanours” in the legislation of Ukraine, for committing of which there is criminal liability before the court (the judge), the author raises the question of defining such criminal offense as a socially dangerous act, but of less public danger than a crime, and all other misdemeanours (administrative) should be considered harmful, but not socially dangerous. Cases of such misdemeanours should be considered during administrative proceedings, according to the (procedural) rules defined in the Code on Administrative Offenses. Using the experience of legal regulation of European countries, we thus implement our legislation to the European one, but taking into account our national traditions and maintaining the fundamental principles of criminal law and maintaining such principles regarding administrative liability. So, criminal liability arises only in accordance with the Criminal Code of Ukraine and the Code (Law) on Criminal Offenses (misdemeanours) as socially dangerous acts, and administrative liability arises in accordance with the Code of Ukraine on Administrative Offenses (misdemeanours) that are not socially dangerous.

120-139

Authors: Dudorov O. O., Movchan R. O.

The article clarifies the question of whether the current law of Ukraine on criminal liability needs to be changed in connection with the lifting of the moratorium on the circulation of agricultural land and the expected opening of the market for such land. It is proved that from the methodological standpoint it is more correct, when analyzing the relevant torts, to operate not with the term «abuse in the land market», which is popular in the legal literature, but with the wording «abuse in the sphere of land circulation». Based on the study of the relevant historical (drafts of the Criminal Code of Ukraine) and foreign (criminal codes of Azerbaijan, Russian Federation and some other countries) experience, as well as taking into account the doctrine of criminalization and differentiation of criminal liability, it is concluded that the introduction of special criminal law prohibitions in the field of land circulation is not expedient. In particular, it is proved that the amendment of the Criminal Code of Ukraine by the provision on liability for illegal registration of an illegal transaction with a land plot will violate such a systemic legal principle of criminalization as the principle of absence of gaps in the law and absence of excessive prohibition. The shortcomings of the doctrinal proposal to supplement the Criminal Code of Ukraine with a norm on abuse of the land market with an abstract disposition are demonstrated. Existing norms on criminal liability for crimes in the sphere of official activity and professional activity related to the provision of public services and crimes against property can be qualified as abuse in the sphere of land circulation are demonstrated. It is believed that the prevalence of these abuses is not the result of gaps in the current substantive law on criminal liability, but, inter alia, the result of failure to ensure the principle of inevitability of criminal response to the commission of already prohibited criminal offenses.

154-165

Authors: Hryhorenko A. O.

The article examines the essence of reconstructive activity as a special type of activity that is of key importance for the pre-trial investigation of crimes. From the point of view of philosophical and psychological approaches the components of the researched concept, namely reconstruction and activity are considered. A separate study of these concepts from a philosophical and psychological point of view is necessary to understand their essence. The essence and place of reconstructive activity from the criminalistics point of view are considered. The study of reconstructive activity is quite relevant, because in fact this type of activity, through its main feature, namely reproduction, provides an opportunity to investigate a criminal offense, which in turn always occurs in the past against a person authorized to investigate a crime. The article analyzes different approaches to understanding reconstruction. There is no single point of view on understanding reconstruction, even within a single field of knowledge. From a philosophical point of view, reconstruction is usually considered from the point of view of the history of philosophy. That is, in the aspect of reproduction of philosophical ideas, theories, views, knowledge, etc., taking into account the conditions that influenced their origin and existence. From a psychological point of view, reconstruction is understood as the reproduction of certain objects, phenomena, objects, etc. in the human mind. It is established that the key feature of reconstruction, regardless of the approach of understanding is the reproduction of relevant objects, phenomena, objects, etc. The second element of the studied concept is activity. Different approaches to understanding the activity are analyzed. It is established that the key feature of the activity is that it is aimed at meeting human needs by changing the world around us. Regardless of the type of reconstruction that needs to be carried out by the person authorized to investigate the crime, it will always be implemented through activities, i.e. activities are a form of reconstruction. The article provides a definition of reconstructive activity.

180-196

Authors: Polych V.P.

The experience of the XX – the beginning of XXI century demonstrates the crucial importance of security for human existence. Safety study is a scientific field which is not developed enough, although its results are already de facto different from what has been studied by other sciences. Innovations in scientific knowledge, taking into account the new problems, risks and security threats identified, confirm this fact. After the end of the Cold War, a new international legal order was formed, as a result of that, studies in the field of security required its rethinking as a social phenomenon from a broader methodological points of view, not reducing security only to neutralizing military threats. Identification of subtypes of security (political, military, economic, environmental, food, energy, etc.) by field feature, depending on the presence of threats to a particular group of values does not lead to the loss of the international system of its integrity, but only groups similar variables within the system which contributes to their studies and interpretations. Attempts to build a hierarchy of security subtypes within international security are not rational enough, given their interdependence, as well as (interest, knowledge, worldview, etc.), which guide certain authors in building such a hierarchy. As a result of the variety of approaches to the interpretation of the concept of "environmental security", researches which are conducted in the XXI century are losing elements of simplicity inherent in the developments of the XX century. The use of an interdisciplinary approach complicates the coordination of environmental security research, but at the same time meets modern needs. The paper proves the inadequacy of the traditional understanding of security and shows that global changes in the environment create new conflicts, threats and challenges, and thus demonstrate the urgent need to look for new forms of cooperation based on international law for humanity survival and ensuring of sustainable development. The paper does not claim to reveal the full picture of the phenomenon being studied. Therefore, the author is fully aware of all the formal and conceptual shortcomings that the paper may contain, and welcome any comments, remarks on the provisions set out in it.