PROBLEMS OF LEGALITY

8-21

Authors: Semenihin Igor Victorovych

The focus of this article is the research of the nature of legal doctrine, its features, content and the role in legal practice. Actuality of the working out of the legal doctrine is closely connected with the problem of determination of its role and significance in the development of Ukrainian law. It is concluded that legal doctrine has not only descriptive, but also prescriptive character (contains elements of the things existent and the proper). Describing law, carrying out its logical or economic analysis, scholars find gaps in legislation, desuetude of the legal norms, their non-compliance with the principles of law, etc., and prove the need to establish / change / abolish legal rules or institutions of law. The legal doctrine exists and develops in the system of coordinates, which are set by traditions, ideological, cultural, religious keynotes of society.

34-42

Authors: Litvinov O. M., Bogush V. V.

Article 78 of the Law of Ukraine «On the Constitutional Court of Ukraine» prescribes that exclusively the Grand Chamber, on its own initiative, may take measures to secure a constitutional complaint by imposition of a temporary ban on a certain action when it is necessary to prevent irreversible consequences that may occur due to execution of the final court judgment wherein challenged law of Ukraine (specific provisions thereof) has been applied. However, according to the second section of article 32 of the Law ofUkraine«On the Constitutional Court of Ukraine», the Grand Chamber, the Senates and the Boards shall act as the Constitutional Court of Ukraine under the powers determined by this Law in respect of constitutional proceedings. Moreover, analysis of the provisions of the Law of Ukraine «On the Constitutional Court of Ukraine» gives rise to stress that both the Board and the Senate are empowered to consider an issue of initiating constitutional proceedings in the case upon a constitutional complaint (an issue concerning the admissibility of a constitutional complaint). In addition, the Senate is empowered to consider an issue of conformity to the Constitution of Ukraine (constitutionality) of laws of Ukraine (specific provisions thereof) in the case upon a constitutional complaint (an issue concerning the merits of a constitutional complaint), and the Grand Chamber has this power in the event of relinquishment of jurisdiction by the Senate in favour of the Grand Chamber. That is why, prescribed by the Law of Ukraine «On the Constitutional Court of Ukraine» institutional mechanism of securing a constitutional complaint could be very ineffective in practice. It cannot access either the legitimate aim of securing a constitutional complaint that consists in preventing irreversible consequences that may occur due to execution of the final court judgment wherein challenged law of Ukraine (specific provisions thereof) has been applied, or the urgency of such an interim measure in the form of imposition of a temporary ban on a certain action. Nevertheless, the above problems could be easily improved by the relevant amendments to the Law ofUkraine«On the Constitutional Court of Ukraine» (for instance, by changing a phrase «the Grand Chamber», available into the first section of article 78 of the Law ofUkraine«On the Constitutional Court of Ukraine», to a phrase «the Constitutional Court ofUkraine»).

54-64

Authors: Karnaukh Bohdan Petrovych

The article has two main objectives: (1) to reveal why the fault principle is considered to be morally superior to no-fault liability in primitive law; and (2) to find out the essence of fault in modern tort law and then to express the concept of fault in the most precise manner possible, namely through math formula. It is argued that the very existence of law is contingent on freedom of human’s will. It is the human’s freedom that allows to judge human’s actions. Thus, provided that we consider tort law as a set of rules prohibiting infliction of damage and establishing liability therefor, it is fair to state that fault is a precondition of tort liability specifically because freedom is a precondition of the very law’s operation. Therefore, while establishing fault the court investigates whether the tortfeasor was free at the moment of infliction of damage. Fault denotes that formally wrongful act was committed freely. Since establishing fault is conducted after the wrongful act has been committed (it is conducted within judicial proceedings, which constitute backward-looking research), the inference follows that fault is an ex post conclusion of freedom. However, sometimes all the elements of the free-choice situation being present, the tortfeasor nevertheless cannot be deemed to be at fault. This is the case, where the tortfeasor could have avoided inflicting damage, but at excessively heavy cost. Thus, it is not enough if among the available alternatives there is one harmless; in addition, the harmless option has to be reasonable. Otherwise choosing this harmless option cannot be expected.

80-93

Authors: Tsuvina T. A.

The article addresses the Ukrainian model of executive proceedings (which was recently updated as a result of constitutional reform in the justice sector) through the prism of the right to a fair trial, guaranteed by paragraph 1 of Art. 6 ECHR. Particular attention is paid to the analysis of the evaluative interpretation of this guarantee in case-law of the ECtHR, according to which an execution of court decisions is considered also as an element of other conventional rights, namely: a right to an effective remedy (Art. 13), a right to respect for private and family life (art. 8) and a right to peaceful enjoyment of his possessions (Art. 1 of 1st Additional Protocol to the ECHR). The author analyzes the pilot judgement of ECtHR «Yuriy Nikolaevich Ivanov v. Ukraine» and the judgement «Burmych v. Ukraine», in which the ECtHR diagnosed a systemic problem of non-enforcement of court decisions where the debtor is the State or state-owned enterprises. This problem at national level is caused by a variety of dysfunctions in the Ukrainian legal system, in particular, the lack of budgetary allocations, the bailiffs’ omissions and the shortcomings in the national legislation, authorities’ failure to take specific budgetary measures, the introduction of bans on the attachment and sale of property belonging to State-owned or controlled companies The article advocates a position according to which the national legislation of Ukraine needs further changes to ensure fulfillment of its international obligations. In particular, it is necessary to provide at national level an effective remedy of the right to a fair trial and execution of court decisions within a reasonable time in accordance with the requirements of Art. 13 ECHR.

104-115

Authors: Vashtareva Ye. A.

The article addresses the concept of enrichment within the context of obligations arising out of the unjustified acquisition or retention of assets (also known as condictio obligations). Having analyzed critically two current theories (namely the “factual” enrichment theory and “juridical” enrichment theory) the author concludes that enrichment can consist both in the acquisition of jus in rem and in title-less possession and use of the property. Within this framework it is also argued that both specified and generic things can constitute the object of enrichment. The author critically assesses the provision of Ukrainian legislation under which only the property can be the object of enrichment, since there are a lot of other assets that have economic value though they are not encompassed in legislative definition of property. However, those assets are covered by a broader concept, viz the concept of “objects of civil rights”.

128-136

Authors: Sharapova S. V.

Productivity and qualitative state of the lands of forestry depend on efficient and rational use by land users of these lands. The greatest negative impact on soils is detected in the process of their use. Inappropriate use of forest lands leads to a decrease in their productivity, which directly affects the soil fertility and ultimately leads to land degradation. The choice of the topic of the article is determined by the relevance of the problems raised in it concerning the rational use of land, their degradation. A progressive course of land degradation, including forestry, leads in the first place to the loss of their productivity. Unfortunately, nowadays the use of land and other natural resources does not meet the requirements of rational nature management. Land resources of Ukraine are characterized by an extremely high level of development, there is also insufficient economic and ecological substantiation of the distribution of land by purpose, lack of attention to land protection problems has led to a decrease in the area of productive lands, all this leads to land depletion, soil fertility decline, degradation, etc. Failure by land users to meet the requirements for rational and efficient use of land leads to a decrease in the area of productive lands of forest management, and to deterioration of the quality state of these lands, as well as forest resources. Thus, the organization of rational use of forest lands is a priority task in preserving and improving the productivity of these lands.

145-153

Authors: Balakarieva I. M., Zhuk A. V.

This topic is very important in our time, because success in the information age depends on the expansion of the integration of information and communication technologies into society. Processes and changes related to the formation of the information society, of course, dramatically increase the social significance and role of information relations and information activities, which, in turn, causes a significant increase in the scope of legal regulation in this area. That is why this article is devoted to the analysis of state management information resources. The article deals with approaches to the definition of "state information policy". It was clarified that the specially authorized central executive authority on the organization of special communication and information protection is the Administration of the State Service for Special Communications and Information Protection of Ukraine. The main tasks and functions of the State Agency for E-Governance of Ukraine which implements state policy in the areas of informatization and e-governance were also analyzed. The main directions of the state information policy at the present stage of development of the state are determined. We believe that this list which is enshrined in the Law of Ukraine "On Information" should be supplemented to optimize the administrative legislation. The article analyzes the legislative framework for regulation of information resources. The legal framework of this sphere should include the Law of Ukraine "On Information", the Law of Ukraine "On the National Program of Informatization", the Cabinet of Ministers of Ukraine Resolution "On Approval of the Strategy for the Development of the Information Society in Ukraine", the Law of Ukraine "On the State Service for Special Communications and Information Protection of Ukraine", etc. It was concluded that in Ukraine are formulated and legislatively fixed the basic principles of the state information policy. Nevertheless it is necessary to promote the formation of the market of information resources, services, information systems and technologies, means of their provision as well as to assist the state in the creation and development of an open information society.

166-174

Authors: Shepitko M. V.

A study of the legal and psychological prerequisites for forming a system for counteraction to crimes against justice has been carried out. Such an approach allows not only to effectively investigate crimes against justice and properly qualify the committed socially dangerous acts, but also to neutralize or minimize the possibility of committing crimes against justice. Therefore, studies of the emotional condition and complex volitional acts of participants in the proceedings were necessary for the purposes of this paper. During the research, author is paid attention that judge in the period, when he/she make decision in the case, we could find signs of unprofessional activity – inattentiveness, superficiality, ignorance, fatigue, fear, which may affect the adoption of an erroneous decision. In order to establish whether such a decision was unlawful or false, it is necessary to establish the extent to which such a decision was a conscious judge, which the judge wanted to reach by such a decision. The return to a complex volitional act committed by a judge requires the implementation of a retrospective immersion into experience, accompanied by a court decision. Such an approach can be applied to the activities of other participants in the proceedings, but due to additional analysis of their procedural and / or professional status.

185-200

Authors: Yakoviyk I.V., Shepliakova Elena

On the way to the EU integration, Ukraine faces substantial challenges in the area of security. Europe’s number one security concern, of course, is Russian aggression in Ukraine. At the moment, the EU can be viewed rather as an informal collective security and defence organisation, but if Ukraine achieves further progress on the way to EU membership, then, in the future when the issue of Ukraine’s membership may be considered, the security status of the EU could become formalised enough and Ukraine would obtain the security guarantees of full value; which the country lacks today.

214-222

Authors: Yarmak V. Yu.

The problems of definition and various aspects of the "brand" concept, which are reflected in the works of domestic and foreign lawyers, the essential signs of the brand are outlined, its functions are investigated. The author defines the concept of "brand" and defines the relationship between the concepts "brand" and "trademark", the characteristic of common and distinctive features of these concepts is given. Adaptation of the Ukrainian national legislation to the EU legislation is a prerequisite for Ukraine's integration into the European legal space and also part of the implementation process due to the Association Agreement between Ukraine and the EU. The issue of unification of terminology, which is used in various areas of EU law, is universally accepted. Despite the quit successful attempts to streamline industry terminology at both the national and inter-sectoral levels, modern legal science has not developed a single terminology machine. Consequently, the problems of the use of legal terminology require further substantive research aimed at the formation of proposals concerning the introduction of terminology, especially in the Ukrainian legislation. At the current stage in the national legislation of Ukraine and in the EU legislation there is no concept of "brand". The analysis of theoretical sources gives grounds to assert that in the legal science there is no unity in the definition of the concepts of "brand" and "trademark". There is no doubt about the presence in these terms of both common and distinctive features. The achievement of unity, uniqueness and consistency of legal terminology, elimination of excessive synonymy, contradictions, and discrepancies is important both theoretical and practical significance. New scientific, technological, economic, social and environmental challenges require countries to properly position and target their assets in global markets for goods, services, finance, investment and innovation, the formation of internal and external positive image and competitive brand. The creation of conditions for the development of the national brand identity is relevant for Ukraine, given its Eurointegration and general civilization priorities.

229-239

Authors: Nwocha Matthew Enya

This Paper It has discussed economic rights contained in the major international economic instruments, namely the International Covenant on Economic, Social and Cultural Rights; the Declaration on the Right to Development; and the African Charter on Human and Peoples’ Rights. The Paper came against the background that there is need for nations, institutions and the international community to pay equal attention to economic and social rights as it does civil and political rights for in the final analysis, human rights are indivisible, inter-related and inter-dependent. The objective of this Paper, therefore, is to draw attention to this reality in order to reposition individuals and nations for economic prosperity and development. The Paper found among other things that the implementational mechanisms of these instruments are weak and ineffectual. It has also recommended amendments to the law and better strategies of implementation.

8-16

Authors: Kozachenko A. I.

The article analyzes creation of the Constitutional Committee by the Ukrainian Central Council (UCC) and its activities with a view to developing a draft of the Constitution of Ukraine. Formation of the Constitutional Committee of the UCC was guided by political rather than professional criteria. In July 1917, the Committee prepared the first draft of the Constitution of Ukraine – “Charter of the Supreme Administration of Ukraine”. Given the scope and content of the “Charter of the Supreme Administration of Ukraine”, this document should be qualified as a temporary minor Constitution of Ukraine. Adoption of the Third Universal of the UCC on November 7, 1917 began the second stage of the constitutional process in the Ukrainian People’s Republic (UPR). In December 1917, the Mala Rada (Minor Council) approved the second draft of the Constitution of the UPR. The Fourth Universal, adopted by the UCR on January 22, 1918, marked the beginning of the third stage of the constitutional process which ended with adoption of the “Charter on State System, Rights and Freedoms of the UNR” by the Mala Rada on April 29, 1918. The drafts of the Constitution of Ukraine of 1917–1918 did not come into force, but they imply the high level of development of the national constitutional thinking. The constitutional process in Ukraine under the Ukrainian Central Council was democratic. It relied on the principles of European constitutionalism and own national constitutional experience.

26-34

Authors: Stepanenko K.V.

The questions of the current state of the legal system of Ukraine are considered, the factors influencing its content and structure are determined. The main trends in determining the content of the national legal system in the domestic legal science are analyzed. Arguments are given regarding the expediency of building the national legal system of Ukraine as a mixed or legal system of an integrative type containing signs of continental and common law. It is concluded that the integrative nature of a legal system that uses the features of continental and common law simultaneously requires a broader use of the legal precedent. The legal system is viewed by the author in a broad sense as a set of legal institutions and phenomena that are in stable relations with each other and with other social systems, as well as interrelated means of its realization, conditioned by globalization and Ukraine’s desire to integrate into the European legal space. The following components are proposed to be included in the structure of the national legal system of Ukraine of the integrative type: a) the ideological sphere, including legal ideology, legal ethics, legal education and legal psychology inherent in a civilized European society; b) the regulatory and legal sphere that characterizes the features of the external and internal structure of law; c) the institutional sphere, which includes a set of institutions of legal specificity; d) the practical sphere that determines the features of law-making, law enforcement and interpretation of law, with a reasonable combination of Romano-Germanic tradition with Anglo-Saxon law in the country.

44-52

Authors: Yakushina O. S.

The article defines the notion of a constitutional right to education both in subjective and objective sense. The necessity of consideration of the constitutional right to education in these two dimensions is justified by the fact that the legal nature of the constitutional rights and freedoms of the individual may be disclosed in the comparison of objective law (body of law) and subjective law as the ability of a person to elect the appropriate type and measure of behavior in the framework of the law. In contrast to the position of non-recognition of the subjective nature of the constitutional socio-economic rights in the work argued for the recognition of the constitutional right to education subjective character, since it belongs to each person is his own right, directed on satisfaction of individual interests and needs of the individual. The article proposes to systematize the legal provision of the state guarantee the implementation of the rights of the individual to education. The first group includes legal norms defining the strategy, goals and objectives of the right to education, the basic parameters of the object of legal regulation of education – its content, spatial and temporal scope, purpose and implementation procedures for individual rights for education. The second group – guaranteed rules because they reglamentary organization of education management, types and structure of Executive bodies that act in the field of education, define their legal status and the rules governing the functioning of educational activities. The author substantiates the position on the inappropriateness of assigning a separate branch of «education law», because the constitutional law is mainly as a set of rules that regulate social relations associated with the implementation of a person’s right to education. The article mainly analyses the duty of obtaining secondary education, notes about duty of individuals both in material and spiritual spheres, as well as opens the content of the constitutional rights of the individual to education.

61-77

Authors: Kirichko V. N.

There is a legislative virus in the system of the Criminal Code of Ukraine. It concerns articles 154, 368, 368-3, 368-4, 369, 369-2. The virus exists in the form of such legislative provisions, according to which the specified articles of the Criminal Code of Ukraine cover actions that should be recognized as lawful. As a result of the virus, those persons who must be recognized as victims of a crime are convicted of crimes. The legislative virus is associated with the notion of “solicitation of an undue advantage” contained in Articles 15, 16, 18, 21 of the UN Convention against Corruption and the notion of “request of any undue advantage” contained in Articles 2, 8, 12 of the Criminal Law Convention on Corruption (ETS 173). In accordance with conventions, these concepts do not include the threat of causing harm to human rights. In the aforementioned articles of the Criminal Code of Ukraine, there are two types of “solicitation/request of an undue advantage”. The first kind is the same as in the conventions. The second type is always combined with the threat of violation of rights. The virus belongs to the second of these values. The negative consequences of the legislative virus are the condemnation of persons who were giving of any undue advantage to protect their rights from threats and did not intend to persuade another person to violate their official duties. As a result of the legislative virus, those who did not commit corrupt acts and who should be recognized as victims of a crime are condemned for committing a crime. Such a violation of the rights of citizens is subject to legislative provisions that the author considers to be false and requires correction. The solution to the theoretical and practical problems caused by the specified virus is possible only by introducing several changes to the system of the Criminal Code of Ukraine. Projects of such changes are developed by the author and reflected in the publication. In case of their adoption, the specified legislative virus will be completely eliminated.

93-103

Authors: Kalinina A. V

Dynamic processes of international migration, including Ukraine as a participant, produce real and potential security threats. One of such threats is foreigners’ and stateless persons’ crime. That’s why studding crime of this people with the aim of its prevention, orients a researcher to use different methods of scientific research. Most of criminological researches are based on the official statistics data. But for the comprehensive view of the topic usage of only crime statistics isn’t enough. Researcher can get the outstanding information through different surveys that belong to the statistical methods of scientific research. The goal of this paper is to expound the results of law enforcement officers survey, conducted by the author, as for latency, determination and prevention of foreigners’ and stateless persons’ crime in Ukraine. The investigators and agents of the National police and Security Service of Ukraine, district police officers of the National police from Kyiv and Kyiv Region, Kharkiv and Kharkiv Region, Dnipro and Dnipropetrovsk Region, Odesa and Odesa Region, Chernihiv and Chernihiv Region, Chernivtsi and Chernivtsi Region, Uzhhorod and Zakarpattya Region have been the respondents of our survey. For our survey we had worked up two forms: the first for investigators and agents of the National police and Security Service of Ukraine and the second one for district police officers of the National police of Ukraine. The first form included questions about: how often foreigners and stateless persons commit crimes in Ukraine; the level and reasons of the latency of these crimes; the most widespread difficulties of the investigation of such crimes; possible connection between nationality and kind of crimes; determination and prevention measures of foreigners’ and stateless persons’ crime. Form for district police officers was rather different than for investigators and agents. We had asked them about quantity of foreigners and stateless persons on their district, facts of crime committing by them, claims from local people on them, determination and prevention this type of crimes. The main conclusion of the paper is that without such methods of scientific research like surveys, any criminological study isn’t complete and has not enough practical orientation.

121-130

Authors: Shymko A. R.

The article is devoted to economic and legal analysis of foreign economic transactions with scrap metal. Specific features of economic legal ground work for foreign economic transactions with scrapmetal have been considered in the article. Strategic importance of transactions with the scrap metal has been defined. Legislation in force in this sphere has been analyzed. It is main defects and prospective improvements have been studied. The article is devoted to research of licensing of collection, recycling and export of scrap metal. The main interests in private and public spheres of investigated industry has been defined. The expediency of systematizing the legislative work within the economic and legal support in operations with scrap metal have been proved. The author proposed the ways to achieve a compromise between public and private sectors in sphere of operations with scrap metal through the use of economic and legal instruments. The dysfunction of economic and legal mechanism for regulation the secondary metals market has been defined. The disparity between real social interests and economic and legal mechanism of licensing in this sphere has been proved. The necessity to reform the structure of subjects with organizational and economic powers has been substantiated. Specific features of economic law regulation of pricing on the scrap metal market have been considered in the article. Conclusions and proposals have been based on economic and legal concept analysis and statistical data.

144-153

Authors: Komarova T. V.

The history of the foundation of the Court of Justice of the European Coal and Steal Community, which became the prototype of modern Court of Justice of the European Union, is enshrined. The model, on which the Court was found and factors, which influenced and helped actively formulate the autonomous legal order of future European Union, are analyzed. The author learned the influence of national practice of the States-founders of the European Coal and Steal Community on establishment of the Court’s functions as well as of international experience. This influenced on the unique features of Community’s judicial system and on the formation of supranational mechanisms of judicial protection. The author shows that from the beginning of functioning of the Court of Justice of the European Coal and Steal Community it has played the role of defender of private persons’ interests and this fact differ the Court from classical international judicial organs. Private persons quite effectively appealed against the decisions of Community institutions and this shows the orientation of new Community not only on States but on people of Europe. The Court of Justice of the European Coal and Steal Community was not just a formal predecessor of the Court of Justice of the European Union, but it determined the vector of the development of judicial practice and principles which are still form the cornerstone of the functioning of justice in the EU.

166-174

Authors: Burova O. K.

The article is devoted to the clarification of the sources of legal nihilism in the national history, which were related to the peculiarities of the historical past (first third of the twentieth century). They changed the social status of a person and his/her attitude to law. It is proved that the basis of modern social status of a person and his/her attitude to law is Stalinism. It passed as a regime, but it is quite reigning in mental habits, economic behavior, attitude toward leadership, to itself, to citizenship, responsibility, people, honest work, law, personality, etc. Such forms of consciousness being have been established which with an incredible ardour repel all rational-critical evidence – a kind of “mascult” in this area. The formation of negative attitude to law was connected, firstly, with the fact that in the mass consciousness of 20–30 years of the XX century law was considered as being borrowed from the former exploiting social systems; and secondly, the humanistic meaning of the legal norm was totally denied; thirdly, social and political paternalism became widespread. The belief in inability of a person to live according to his/her own, self-ruled norms, indisputable “proposals”, backed by a whip and a honey-cake, humiliate human dignity. Total terrorization, real camp slavery, procedurally unlawful activity of judicial and forensic organs, mass fabrication of imaginary crimes, that is the characteristic of the phase of “criminal statehood” (K. Yaspers) in Russia in the 30’s of the XX century, could not but touched all layers of the society and had a destructive effect on social life. Human quality inexorably decreases. The article shows that today’s state of the society, with all the radical changes in the economic and political spheres, carries in itself a lot of rudiments from not so much distant past. The move to the rule of law is long and complicated. However, human efforts, connected with the critical understanding of the dialectical process of conscious and existential foundations, which need to be changed in the direction of perfection, is the basis for the struggle with legal nihilism and the improvement of the social quality of a person.

8-19

Authors: Ольга Олександрівна Сидоренко

modern Ukraine on the way of reforming the legal system in accordance with European standards. It is concluded that at the present stage of state building the unitary form of the state structure is optimal. At the same time, practical actions are needed in the direction of decentralization of state power to create a civilized state. The great influence on the development of the modern legal system of Ukraine is due to the integration of the legal norms and principles generally recognized by the world community into its structure. Today, there are not so many states, which, having emerged as unitary, then changed the form of government into federal. The process of studying various types of unitary states should be based on a clear methodological basis. Ukrainians have confirmed that they are Europeans who profess the same values of democracy and citizens of European countries that have a decent standard of living for people. Democracy in the state, sovereignty and independence are provided not by changes in the territorial structure, but, in particular, by stable economic growth. Over the past decades, there have been processes of transformation of federal states into unitary ones, without making any changes to the constitution. According to studies by most experts, for our country the optimal form of government is the unitary decentralized state. The author defends the preservation of the unitary character of the Ukrainian state at a certain decentralization of power, development of the institution of local government and improves the structure of Parliament. We must build the newest Ukraine with a modern legal system, focusing on best practices, but not trying to copy even the best world examples.

31-42

Authors: Ольга Ігорівна Поклонська

Nowadays, media freedom is one of the foundations of society's development. A variety of political rights, including the right to participate in elections, holding rallies, etc., are inextricably linked with it. It promotes effective ways of implementing national politics searching, forms stable conditions for the creation and consolidation of democracy and the rule of law, and is the core of journalism foundation in modern society. Media freedom should firstly be perceived as a means of ensuring freedom of speech and other citizens' rights. Only the fact that those norms are included in the constitutional right of our state, testifies to the fundamental nature of these rights and freedoms: they have a higher legal force in comparison with other legislation. Nowadays, Ukraine established a system of legal safeguards for journalistic activities embodied in the Constitution of Ukraine and other legislative acts which guarantee adherence to generally accepted civil rights and freedoms to journalists. The law also contains several norms which, in view of the specifics of the professional activities of journalists, determine their professional rights. The legislation provides criminal and administrative liability for interfering with journalistic activities. At the same time, the wide legislative consolidation of the guarantees of journalistic activity freedom does not mean that all the established legal norms are properly implemented in practice. That is why further research and law enforcement practice should be aimed at improving the mechanism for the legal norms regulation that guarantees the effective implementation of journalistic activities.

52-62

Authors: Віктор Петрович Янишен

The issue of legal regulation of consumer lending has been studied taking into account the provisions of the Law of Ukraine "On consumer lending" and the legislation of the European Union in the aspect of harmonization of Ukrainian legislation with the legislation of the European Union and international standards. The criteria of qualification of credit relations as consumer are established. The legal status of the participants in consumer lending relations is determined: the lender, the consumer, the credit intermediaries. The emphasis is on the information obligations of the lender to the consumer. The conditions of the consumer loan agreement are analyzed, in particular, the conditions regarding the size of the real annual interest rate and the total cost of the loan to the consumer at the date of the contract conclusion. The content of consumer rights for refusal from the consumer loan agreement and early repayment of the loan are considered. The guarantees of consumer rights protection of credit services are disclosed both before the conclusion of a consumer loan agreement and during its execution. The provisions of the legislation concerning the specificity of establishing the order of repayment of claims under a consumer loan agreement and the legal limitation of consumer liability are maintained.

78-85

Authors: Yuriy Evgenovich Khodyko

The concept of things in the context of the definition of the object of legal relationship is investigated. It is indicated that the thing as an object is a universal object of civil legal relations, but the special place takes on real legal relationships. It is analyzed, what exactly is a thing as an object of real legal relationship, which goods of the material world are covered by these concepts. The criterion is defined for which the good may be regarded as a thing. According to an analysis, the author comes to the conclusion that the legal concept of things is exclusively a decision of the legislator. From the two approaches that have emerged in the doctrine of civil law, the author justifies the appropriateness of a narrow approach to understanding the concept of things. The relation of things as an object and the result of intellectual property rights that can be embodied in this thing is analyzed. Also, the issue of assigning money and securities to securities is raised. The mentioned problems are analyzed through the prism of Ukrainian legislation, scientific doctrine and legislation of Austria, Azerbaijan, Estonia, Spain, Moldova, the Netherlands, Germany, Turkmenistan, Uzbekistan, France, Model civil legislation of the CIS states. The author makes substantial conclusions, which have both theoretical and practical significance in relation to the above-mentioned question

95-104

Authors: Євгенія Анатоліївна Ваштарева

Both condictio and vindicatio are effective remedies of protecting subjective civil rights. However, the general effectiveness of these remedies is prejudiced by significant legal uncertainty that is due to the fact that the same circumstances can be considered as grounds for bringing both vindicatio and condictio actions at the same time. This situation is traditionally referred to as “competition of lawsuits”. Finding ways to resolve this “competition” is one of the acute issues of modern judicial practice. This problem is not new, though; the lawyers of Ancient Rome faced it. Therefore, it seems reasonable that studying the origins of this problem in the past can help to solve it in the future. In modern Ukrainian academic literature, the raised problem was addressed by I. E. Berestova, I. V. Venediktova, I. M. Honcharov, B. P. Karnaukh, H. V. Puchkova and others. The purpose of the article is to find out the origins of condictio action and to determine the relationship between condictio action and vindicatio action in ancient Roman jurisprudence. First of all the author pays attention to studying the origin of condictio action and underlines that unjust enrichment initially was not the only case where the condictio action was applicable. However eventually ancient Romans realized that condictio action was suitable for returning the unjustified enrichment. Thus the problem arose how to reconcile condictio and vindicatio. In the Roman law of the Justinian Codification period, the idea was established that the condictio and vindicatio suits are in relation of electoral competition, which means that the injured party has the right to choose, at his own discretion, which claim to bring. However, many fragments from Digest show that in the classical period, the views on this problem were fundamentally different, and the choice between condictio and vindicatio was not allowed in principle. According to the views of classical lawyers, the vindicatio claim had to be made when the injured party, despite the loss of possession, remained the owner of the thing; on the contrary, if the injured party, without proper legal grounds, has lost the title of property (for example, because of mixing things with the defendant's assets, consuming or processing them) then in the only appropriate remedy is condictio action

113-120

Authors: Руслан Віталійович Колосов

The article is devoted to the consideration of conceptual bases of corporate relations and clarification of their legal nature. The study analyzes the existing theories of the origin and origin of corporate relations and attempts to determine their place in the system of law of Ukraine. At the end of the article, there are a number of conclusions and proposals aimed at improving corporate legislation, which can be the basis for further scientific research. In particular, it is proposed to consolidate corporate rights among objects of civil rights in order to emphasize their civil-law nature. On the basis of the conducted research, the author, also concludes, that corporate relations are a complicated legal phenomenon that unites property and non-property elements. However, the author could not attribute corporate relations to any known group of civil legal relationships, and in connection with it was done the conclusion, that they occupy an intermediate place in the system of civil legal relations

134-142

Authors: Ganna Korniyenko

The analysis of the legal regulation of the acquisition of the right of ownership of agricultural land plots for farm management proved that in this process there are certain obstacles for founders and members of such farms. It is concluded that the procedure for obtaining the right of ownership and rights to use land from the lands of state and communal property is fixed only in the Land Code of Ukraine. The right to receive a gratis land plot from state or communal land is open to Ukrainian citizens who have experience in agriculture or special education acquired in an agrarian educational institution. These requirements apply not only to the founders of farms, but also to their members. The purpose of the article is to analyze the current legal regulation of acquiring ownership of land for farming purposes, taking into account changes that were made to the Law of Ukraine "On Farmers" in accordance with the Law of Ukraine "On Amendments to the Law of Ukraine" On Farmers "regarding stimulating the creation and operation of family farms "of March 31, 2016, No. 1067-VII. In connection with the adopted amendments to the Law of Ukraine "On Farmers", the procedure for the provision of land from state-owned lands is fully regulated by the Land Code of Ukraine. The requirement to have a work experience or a special education acquired in an agrarian educational establishment extends not only to the founders of the farm, but also to members if they are willing to obtain a land plot for such an economy. In our view, this requirement complicates the acquisition of land by members of farms. At present, there is a complicated procedure for re-registration of land plots used by natural persons for the right of permanent use for farming, for the right to own. Taking into account the above, we consider it necessary to introduce a simplified procedure for the re-registration of the right of permanent use of the land plot to the right of ownership for members of the farm, who for a long time are members of such an economy.

155-163

Authors: Світлана Володимирівна Шарапова

The article is devoted to the complex research of the actual issues of legal protection of lands of forestry purposes in the conditions of modern land reform. Particular attention is paid to the system of legal protection of land for forestry purposes. Fundamental importance is given to legal measures for the protection of land under forestry, since the establishment of an effective system of measures is one of the key ways of implementing state policy in the field of land protection. System analysis of the legislation in the field of management in the field of use and protection of forestry lands allows to state that it is in the stage of formation and needs improvement. The existing management system has drawbacks that consist of duplication of management functions that are split between individual executive authorities. It is found out that without the state's proper management of land functions, it is impossible to implement measures for the protection of land for forestry purposes. The system of measures on the guard of earths has general character, that contains such measures which behave to earths of any category in composition the landed fund of Ukraine. Consequently, the indicated measures can be named base which do not take into account a specific and features of concrete category of earths and directed on support and providing as quantitative so high-quality indexes of earths. It is necessary to select the next groups of measures on the guard of lands of forest fund. Except for base, fastened Law of Ukraine «On the guard of earths», by the Landed code of Ukraine, it is necessary to select general measures, which touch the guard of lands of forest fund and forests, which are on them. Yes, it is the state complex system of supervision; creation of ecological network; national and regional program of the use and guard of earths development; compensation of losses of lands of forest fund production. The noted group of general measures not only touches as earths so the forests, and also has intercommunication between itself.

176-191

Authors: Руслан Анатолійович Гольонко

Biosphere reserves execute such targets as preservation of biological and landscape diversity, implementation of background environmental monitoring, examination of the environment and its changes under the influence of anthropogenic factors, etc. and it’s become possible only under the condition of effective legal protection of above-mentioned natural areas, which foresee: the realization in the complex of distinct and specify package of measures with the objective of ensuring compliance with the regime of biosphere reserves; the establishment of rational and non-exhaustive use of natural resources; the economic management in the responded functional areas coupled with preservation of natural complexes; the inviolability of natural processes in ecosystem; the effective scientifically-based management of these areas. The article examines particularities of the legal protection of biosphere reserves, its forms, as also deficiencies of legal regulation hereof were revealed and ways of improving the national legislation concerning the effective protection of natural complexes within biosphere reserves were developed. It was clarified that national legislation did not disclose the content of the protection of territories and objects of the nature reserve fund, referring to the Regulations on Biosphere Reserves, on the basis of which, in fact, frameworks of the organization, specifics and nature of measures for the protection of such territories would be determined. Despite the existence of separate legislative provisions on the organization of the protection of territories and objects of the NRF, the current legislation of Ukraine does not contain a definition of legal notions «legal protection of the natural reserve fund of Ukraine», «legal protection of biosphere reserves», the principles, content and particularities of legal protection of biosphere reserves as unique research establishment and valuable natural areas are not fixed. It has been established that restriction on the use of natural resources and economic management in biosphere reserves in accordance with the functional zoning is a separate form of legal protection of biosphere reserves, as it ensures observance of the fixed by law regime of protection and use of biosphere reserves, which promotes rational and non-exhausting use of natural resources. Preservation of the biological and landscape diversity of biosphere reserves, as well as other categories of the nature reserve fund, is also one of the legal protection forms of these natural territories, inasmuch as the realization of the system of the above-mentioned measures foresee the achievement of a single goal – the conservation of rare plant and animal species, pollution prevention, contamination, exhaustion, destruction of natural resources and integral ecosystems on the territory of biosphere reserves, etc. The legal protection of biosphere reserves proposed to understand as the determined by the norms system of legal, organizational, economic, scientific-technical, cultural and other measures that intended to preserve biological and landscape diversity and protect natural complexes from negative influences of natural and anthropogenic origin, ensuring rational and non-exhaustive use of natural resources and observance of the differentiated regime of the specified territories. The expediency of the legal definition consolidation «the legal protection of biosphere reserves», with specification on the open list of measures of different directions that form the content of such protection, in the Biosphere Reserve Law is substantiated. It is necessary to enshrine in law the following: implementation of background environmental monitoring on the condition of natural complexes and the development of natural processes in the biosphere reserves territory; carrying out multi-method researches with the purpose of scientific basis elaboration of their preservation and effective use; establishment of legal liability for violation of their protection and use regime, as well as for the destruction and damage of reserved natural complexes and objects, their pollution, littering; compliance control for reservation conditions. The group of measures for the protection of biosphere reserves should include the following: the government action of persons guilty of violating the legislation on the protection of biosphere reserves; compensation in accordance with the established procedure damage done caused by violation of the legislation on the protection of biosphere reserves; the remediation of the number of rare and endangered species of animals and plants, etc.

199-210

Authors: Світлана Миколаївна Клімова

A comprehensive reform of public administration and public finances conducted in Ukraine to implement the Association Agreement between Ukraine and the EU requires a thorough research. Problems related to the functioning of public administration, investigated by V. Averyanov, M. Benio, T.Belozerskaya, S. Vitvitsky, D. Vlasenko, S. Gaiduchenko, N. Hnidyuk, O. Jafarova, A. Zelentsov, T. Karabin, T. Kolomoets. The subject of the study is public administration in the field of public finance. T. Karabin investigated the basic theory of public administration and singled out the following: 1) classical theory; 2) the theory of new public management; 3) the theory of public service. The wording of the "broad" and "narrow" understanding of public administration should be made taking into account that today the public administration in Ukraine in the narrow sense consists of: 1) the bodies of state executive power (the Cabinet of Ministers of Ukraine, central executive authorities, their territorial offices, local state administrations, etc.); 2) specialized public authorities (for example, the Accounting Chamber, the National Bank of Ukraine); 3) subjects of local self-government (village, settlement, city council, village, settlement, city mayor, executive bodies of village, settlement, city council, head of state, rayon and regional councils, representing common interests of territorial communities of villages, settlements, cities; organs of self-organization of the population) ). In the broad sense, non-state actors (both collective and individual) should be included in the circle of subjects of the public administration of Ukraine, which delegates power and administrative powers, which are in continuous interaction with public authorities, performing the functions assigned to them. The complexity of public administration in our country is due to the variability of all elements of the system, the links between them and the environment in which the administration operates. Public administration (in the sense of activity) has certain forms, functions and methods. A number of peculiarities of public administration in the sphere of public finances are formulated using the viewpoints of T.M. Kravtsova, A.V. Solonar, I. Richter and G.F. Shupperta, S.S. Vitvitsky: 1) it is a certain coordinated and organized system of organs; 2) the entity acts as a state represented by bodies of state executive power and executive bodies of local self-government; 3) the constituent elements of the system are also state institutions, organizations, institutions; 4) public administration is based on authority, performs administrative and managerial functions; 5) the activity of public administration extends to the whole society, as well as to separate territories of the state - the regions, as well as certain spheres (branches) of public life, one of which is the sphere of public finances functioning; 6) in the structure of the public administration activity in the field of public finances should be allocated "two components: a) organizational, including public service; b) control "; 7) the purpose of public administration in the field of public finances is a combination of interests of the state, interests of regions, individual collective formations and interests, human and civil rights and freedoms; 8) the forms and methods of public administration in the field of public finances are determined primarily by the nature of the security functions of public administration, and secondary importance in this case have the following management functions as: law enforcement; human rights; regulating; norm-setting; jurisdictional; 9) the main forms of public administration include: a) law-making (regulations, statutes, administrative requirements); b) administrative acts; c) public-law contracts; d) simple administrative actions; e) private law administrative activity; 10) to ensure the necessary level of legality in the field of public finance management, a complex of legal, political, economic methods and means (regulation, agreement, persuasion, incentive, etc.) is used, and coercion is applied. The advantage of this is provided by regulatory and incentive factors (anti-corruption activities, responsibility, struggle against dirty money). Taking into account the specifics of managerial (positive) and jurisdictional (negative) activity of public administration in the field of public finances allows the researcher to determine the structural and functional system of public administration in a particular field, to indicate the peculiarities of the forms and methods of public administration in this field and to clarify the guarantees of the legality of public administration activities in the investigated sphere.

218-230

Authors: Богдан Миколайович Головкін

According to the Association of Chartered Certified Accountants (ACCA), the volume of the "shadow" economy in Ukraine is 1.1 trillion hryvnias or 45.1 % of the gross domestic product. Estimates of the Federation of Employers of Ukraine show that only 50 % of payments to the state budget comes from the clearance of goods, while the rest comprise a corruption component of 40 billion UAH for a year. Much of the large companies move non-declared goods across the state border and do not pay taxes. However, at the official level in Ukraine, it is still not accepted to talk about the servicing of the shadow foreign trade by the customs administration and the collection of corrupt rents from illegal trade in the state. Understanding the essence of the problem gives grounds to assert that the corruption risks in the work of customs are laid down in imperfect customs legislation, high tariff rates of duties and taxes, discrete powers of customs inspectors, the regime of customs procedures in the customs control zone, low level of their automation and physical contact of declarants from customs officers. In the customs case, the main type of corruption is bribery and abuse of influence related to the assistance of illegal and criminal activity in the foreign economic sphere. Subjects of foreign economic activity reduce costs and receive revenues through customs fraud or smuggling. Without corruption, this activity is impossible. On the illegal movement of goods and vehicles, smuggling and counterfeiting through the customs border, a criminal corruption business was created for all bodies and services that carry out various types of state control and law enforcement activities in the customs sphere. The most profitable are corruption schemes related to the illegal import / export of three groups of highly liquid products: tobacco products, counterfeit IT products, petroleum products, cars with foreign registration. For an independent study, illegal migration through the customs border of amber and wood, the manipulation of exports of grain and other highly liquid products deserve. Summarizing, we draw the following conclusions. Customs corruption is based on providing shadow foreign trade and covering economic crime on a transnational or transboundary scale. It is in violation of customs legislation by both parties in customs matters for the purpose of illegal enrichment. In corruption practices, all bodies and services that provide state control over the movement of goods through the customs border of Ukraine and carry out law-enforcement activities in this area participate. The level of corruption in the sphere of foreign economic activity depends on the volume of illegal export-import operations with raw materials and highly liquid products, as well as the ratio of official taxes and the cost of corruption services to economic entities. It was clarified that in parallel with "centralized corruption" in customs authorities there is "competitive corruption" between regional customs and their structural divisions for providing corruption services at lower prices. Measures to prevent corruption and crime should be aimed at reducing the profitability of shadow foreign trade by liberalizing the tax burden at the same time while strengthening control over transfer pricing, including the customs service into an integrated security system throughout the supply chain, implementing common customs control, managing risky operations.

240-246

Authors: Людмила Миколаївна Сергєєва, Артем Анатолійович Сергєєв

The article is devoted to one of the actual topics of the day – trafficking in human beings, which violates almost all the rights and freedoms of persons who are victims of this crime. According to the Constitution of Ukraine, human rights and freedoms and their guarantees determine the content and direction of the state's activities. It is the provision of a set of constitutional, legal, socio-economic, political, cultural and other conditions for the life of a person to the state authorities to eliminate the causes that contribute to the crime of trafficking in human beings and violate the rights of victims. Based on a comprehensive analysis of the origin and stages of the crime of trafficking in human beings, international and national legislation, the activities of public authorities, public organizations, a mechanism for ensuring the rights and freedoms of persons affected by human trafficking is defined as a set of state measures of legal, institutional, organizational, of a psychological nature, should be aimed at eliminating the factors that contribute to the emergence and spread crime. The components of this mechanism should be: – organizational and legal (which includes an array of legal norms and organizational methods); – Institutional (President, Verkhovna Rada, Cabinet of Ministers, law enforcement bodies, local self-government bodies, international partners, public and non-governmental organizations); – Control (courts, Ombudsman, non-governmental and public organizations, citizens); – Coordination (taking into account the complexity and multifaceted nature of the crime, a large number of subjects of counteraction to human trafficking).

254-263

Authors: Олена Анатоліївна Лейба

The article is devoted to the definition of the characteristic signs of legislative defects, which are caused by violations of the rules of logic, and find a negative reflection on the conceptual-categorical apparatus of the criminal procedural legislation. It is noted that the alogisms in the legislation, as a result of violation of the rules and laws of logic when constructing legal norms, is one of the most widespread and rather significant legislative defects. The alogisms in the placement of normative material within the law; alogisms in causative relationships; alogisms that lead to impossibility of practical implementation of the legal order and give rise to so-called "dead norms"; alogisms in deontological modalities are emphasized. In particular, such legislative defect as violation of the logic of structuring of normative material is considered using an example of the rules governing the bail and home arrest. The importance of structuring and logical placement of normative material, especially within the limits of the codified normative legal act is stressed. It is noted that according to the laws of logic, causal relationship involves temporal precedence of a cause and the subsequent corresponding effects. At the same time, attention is paid to the fact that the violation of this clearly apparent law is found in the current criminal procedural law, which undoubtedly should be regarded as one of the varieties of legislative defects. Inconsistency of the norms of the logic of criminal procedural legal relationships is defined as alogisms, which lead to the impossibility of practical implementation of the norm. Taking into account the specifics of the sphere of criminal justice, it is indicated that the logic of the construction of criminal procedural relations, generated by the laws of the functioning of this social institution, should be observed. It is noted that when constructing criminal procedural norms, the latter should be functionally suitable (viable). In the opposite case, the logic of the construction of criminal procedural relations will be violated, and the created legal order will supplement the examples of the phenomenon, which in the theory of law is called "dead norms". The presence of all these types of alogisms in the norms of criminal procedural law is noted. The proposals on elimination and overcoming of the described legislative defects are formulated.

278-285

Authors: Анатолий Леонидович Чернявский

The article is devoted to the study of the conditions for the use of countermeasures in the contemporary international law. The application of countermeasures is not sufficiently regulated by the written norms of international law and is predominantly non-codified in a customary manner. The type and size of the countermeasures must be proportional to the offense committed, and the use countermeasures may be recognized as lawful only if the injured State or an international organization puts the offender in a position to comply with its obligations and notify of possible countermeasures. The basic principles of the application of countermeasures are the following: countermeasures should apply only to the State which has committed an internationally wrongful act; the unlawful nature of the act must be determined solely on the basis of the norms of international law; the purpose of applying countermeasures is to restore legitimate rights and interests of the victim only; countermeasures should ensure the return to the previous state that existed prior to the commission of an international offense and should not cause irreparable damage; the application of countermeasures is temporary only. The use of countermeasures is permissible only in case of exhaustion by the victim of other parties not connected with the use of means of protection of their rights and should be terminated when the violated right will be restored. Certain international obligations cannot be terminated in the order of application of countermeasures against the offender. These include, in particular, the obligation to refrain from using force or threat of force, an obligation to protect fundamental human rights, humanitarian obligations and other obligations arising from imperative norms of general international law.

8-16

Authors: Василь Іванович Крат

Invalidity contracts always attracted attention researchers. Without regard to it, in modern conditions there is an enormous layer of the problems related to invalidity contract, that to require a doctrine and utilitarian comprehension. The article is sanctified to research invalidity contract. In the article analyses problems of the legislative regulation and types of invalidity contract through the prism of judicial practice. In the Civil code of Ukraine, a voidable contract sets as a common rule. A voidable of the contract is incarnated in the so-called «virtual» invalidity when only the most typical grounds are enumerated. However, even such approach does not allow to overcome all possible cases that arise up in practice. Such situation touches possibility of voidable contracts concluded with the purpose of to shut out the appeal of claim to the property of the debtor. Therefore it follows to set general rules in relation to voidable contracts of the debtor. A nullity of the contract takes place only in the case when there is the direct pointing of law on the qualification of that or another contract as the nullity. The nullity of contract in the Civil code of Ukraine is constructed by means of «textual» invalidity. There are no single attempts to use the construction of «virtual» invalidity in judicial practice when there is the direct pointing of law on the qualification of that or another contract as the nullity, that is impermissible. Methodologically incorrectly to carry out identifying of invalidity contract and obligation with the aim of providing of application of different after the rich in content filling norms

29-42

Authors: Тетяна Андріївна Цувіна

The article addresses recognition and enforcement of foreign judgements in civil cases in the context of the practice of European Court of Human Rights. The conclusion is made, that European Court of Human Rights analyzes institute of recognition and enforcement of foreign judgements through such procedural rights as right to a fair trial (art. 6 ECHR) and right to an effective remedy (art. 13 ECHR) as long as such substantive conventional rights as right to protection pf property (art. 1 of the First Protocol to ECHR) and right to respect for private and family life (art. 8 ECHR). It is considered that the main article through which this institute should be analyzed is art. 6 ECHR containing procedural guaranties of fair trial. According to the art. 13 ECHR the effective remedies of protection of the right to a fair trial in reasonable time should be provided at national level. Moreover reforms of this sphere of judicial practice should be done in accordance with art. 8 ECHR and art. 1 of the First Protocol to ECHR which provide specific substantive rights. All of the above mentioned aspects are analyzed in detail.

55-69

Authors: Thomas Hoffmann

The fate of the EU-Ukraine Association Agreement – although finally signed between March and June 2014 – shows in a nutshell the nature of the more than 20 years of approximation between the European Union and Ukraine: A series of ambitious leaps towards the west, but few of them strong enough to not to be pulled back by the lack of respective legal implementation, legal reforms and – last not least – the lack of will. Much has been written about the weal and woe of Ukraine’s Europeanization, and literature will even increase after the ongoing escalations of this year will hopefully have ended soon. Still, less has been written about what has been achieved already in terms of legal harmonization, especially in a field much less touched by politics, as it is the law of obligations – in spite of an obvious need for both academics and practitioners. This article therefore provides a comparison of the Ukrainian law of obligations with European harmonization initiatives – here represented by the Draft Common Frame of Reference (DCFR) – and aims at pointing out these fields of law, where further approximation could be obtained.

78-88

Authors: Світлана Миколаївна Клімова

On June 21, 2001, the Verkhovna Rada of Ukraine adopted the Basic Law defining the principles of the budgetary system of Ukraine – the Budget Code of Ukraine. However, till now unregulated norms of separate articles of the Budget Code of Ukraine remained: 1) the Cabinet of Ministers of Ukraine does not define the procedure for borrowing to local budgets, as required by Article 74 of the Budget Code of Ukraine; 2) the legislation does not define specific issues of subventions from the State Budget of Ukraine, as required by Article 105 of the Budget Code of Ukraine. 3) the special law does not regulate the procedure for state control over compliance with budget legislation and prosecution for budget violations; 4) The Cabinet of Ministers of Ukraine did not ensure the implementation of Articles 59 and 60 of the Budget Code in relation to the establishment of uniform forms of reporting by the bodies of collection of taxes and fees and submission of information to the Accounting Chamber on this issue etc. Problems related to the regulation of management and financial relations were at the center of attention of domestic scholars - specialists in administrative and financial law, among them VB Averyanov, Yu.P. Bityak, V.M. Garaschuk, MP Kucheryavenko, A.T. Komzyuk, OA Lukashev, A.O. Monaenko, V.Ya. Nastyuk, O.P. Ryabchenko, IV Soloshkina, and others. Scientificly significant issues related to various aspects of lawmaking were considered in the works of domestic and foreign scientists, namely: I.O. Bilya O.M. Kostenka V.F. Pogorilka, SV Poleninoy, A.O. Selivanova V.Yu. Ragozina, Yu.S. Shemshuchenko, I.D. Shootka and others. Paper objective – Rules of external expression of the contents of the norms of the Budget Code of Ukraine. The text of the Budget Code of Ukraine was created according to the general rules of legal technique. Some examples of constructs of norms of BCU, which need to be revised, are considered. First, Article 94, paragraph 3, of the Budget Code of Ukraine states as follows: “The total amount of financial resources for each type of intergovernmental transfers specified in paragraphs 6-8 of part one of Article 97 of this Code shall be calculated on the basis of state social standards and norms established by law and Other normative-legal acts “. Determine the ways (techniques) of presenting this rule of law: – by the degree of abstract presentation – casuistic; – by degree of completeness of presentation – blanket; – in the form of the proposal – in the form of narrative proposal. This clause of Article 94 of the BCU can not be implemented by public administration bodies without the adoption of another, special law or by-law normative-legal act. Secondly, the integrity of the public finance management process is impossible without systematic and qualitative control. Article 113 of the BCU determines the powers of the state financial control bodies to control compliance with budget legislation. The control functions of the public administration bodies of Ukraine should be stated as follows: 1) The Budget Code of Ukraine does not specify specific directions and objects of control, but the system, principles and tasks of public financial control (in Article 113); 2) determine, in a special law, the system, forms, methods, types of public financial control; 3) by subordinate acts to establish specific rules for carrying out control activities by a specific public administration body in relation to a particular object. Thirdly, the norms of the Budget Code of Ukraine on legal liability for violation of budget legislation are set out in a non-systematic way in violation of the rules of legal technique. Conclusions of the research. 1. The legal electronics industry covers knowledge of the rules of law and the creation of a process of various legal documents outlining the content written regulations, preparing legal documents, legal analysis of the expression of legal rights and duties of others. 2. Accurate and strict compliance with all legal requirements technique of writing can characterize draft legal act as perfect technically and indicate the proper legal culture for its preparation and execution. 3. There is no terminological unity and the structural rules of transforming information on public finances into the norms of the budget legislation are violated. 4. To achieve proper design and use of legal structures in the budget law should be general rules, principles present in the general legislative act – the Budget Code of Ukraine, and under it a few laws and regulations, which will trace structuring and consistency, clarity, simplicity and immediacy of legal material.

99-108

Authors: Інна Миколаївна Кульчій

The author examined the essence of public-private partnership and its features in accordance with international law. The model of public-private partnership can become one of the ways to ensure sustainable development of rural areas in Ukraine, as it will facilitate the attraction of additional funds from private subjects for the implementation of state and regional rural development programs. The author analyzes the national legislation and proposes its improvement through the introduction of amendments to the Law of Ukraine «On state-private partnership» (it is expedient to include agricultural activities to the sphere of public-private partnership) and to the order of the Cabinet of Ministers of Ukraine «On approval of the plan of measures to implement the Concept of development of rural areas», which should provide for the development of rural development projects on the basis of public-private partnerships and proposes adoption of the Concept of public-private partnerships for sustainable rural development. The author proposes to stimulate the development of non-agrarian activities in rural areas on the basis of public-private partnerships for the following reasons. First, support for the diversification of the rural economy, in particular through the development of non-agricultural can promote the development of rural areas by increasing jobs and the development of infrastructure. Second, the development of other types of activities in rural areas is one of the way to ensure sustainable development of rural areas. Third, the state, supporting the mechanism of public-private partnership, will continue the process of transformation model of the rural development from the sectoral into the territorial model.

118-131

Authors: Василь Миколайович Киричко

The article deals with changes in the anti-corruption legislation of Ukraine regarding gifts. In particular, gifts are legally defined in a different way than undue advantage. Gifts characterize acts related to corruption and in which there are no signs of corruption. The notion of undue advantage characterizes corrupt acts. The author of the article proves that a public official receives a gift as a token of gratitude after the correct execution of his official functions or without connection with the performance of his official functions. Violation of prohibitions on receipt of gifts entails administrative responsibility under Art. 172-5 of the Code of Ukraine on Administrative Offenses. Violation of legislative prohibitions on solicitation or acceptance of an undue advantage entails criminal liability under articles of the Criminal Code of Ukraine. The article presents scientific explanations and practical recommendations for making a new decision on liability for violation of legislative prohibitions on receiving gifts. Proposals for amendments to articles 354, 368, 368-3, 368-4, 369, 369-2 of the Criminal Code of Ukraine have been developed. It is expected that they will indicate that when committing the corruption offenses provided for in these articles, a person requires an undue advantage or agrees to receive an undue advantage in exchange for actions related to his official powers. Such a requirement or consent always precedes the actions associated with its official powers.

142-149

Authors: Микола Анатолійович Рубащенко

The author of the article supports the introduction of «the through criminal legal concepts» into the science of criminal law. It is more expedient to use the phrase «the through terms», wherein the through terms have such signs: they are used in the law two or more times; they denote the same concept. The research is based on the fact that the Criminal Code of Ukraine provides for criminal liability for public appeals for various criminal acts: encroachment of the territorial integrity of the state (Art. 110 of the CC), seizure of state power or overthrow of constitutional order (Art. 109 of the CC), terrorist act (art. 258-2 CC), mass riots (Art. 295 of the CC), cruelty to animals (Art. 299 of the CC), act of aggression (Art. 436 of the CC), genocide (Art. 442 of the CC). In legal practice, all these articles are interpreted and applied in different. The necessity of researching public appeals and related acts as through terms is grounded. The through nature of public appeals, the spreading of materials with appeals, the making and storage of materials with appeals are argued. It is proposed to investigate through terms taking into account the context and taking into account systemic links with other criminal legal terms. The recognition that the investigated concept are through, opens a promising direction for the synthesis and application of inductive reasoning. This means the moving from knowledge about public appeals, as separate types of crimes, to knowledge of public appeals, as a generic act common to all of their species.

161-168

Authors: Валерій Федорович Оболенцев

The article reveals the relevance of corruption in Ukraine. The expediency of using a system hike in the implementation of its prevention measures is indicated. The essence of the state of Ukraine as a system object is substantiated. The reform of the domestic anti-corruption system is an urgent task. His decision requires new scientific developments. The development of anti-corruption measures in domestic science was mainly implemented analytical and descriptive approach. We have the work on the basic principles of the system analysis of crime prevention, genetic and prognostic aspects of this activity, systemic factors of the lationization of criminogenic factors, and the extent of protected social relations. This gives grounds for arguing that the use of system engineering as a theoretical basis for the development of anti-corruption measures is warranted. In addition, the system approach is now approved as a priority methodology in preventing corruption in executive bodies and local self-government bodies at the normative level (in item 14 of the State Program on the implementation of the principles of state anti-corruption policy in Ukraine (Anticorruption Strategy) for 2015–2017. The purpose of the work is to minimize corruption in Ukrainian society. And the specific task is to justify the state of Ukraine as a system, where corruption is a systemic problem of its functionality. Specialists have no unity in understanding the notion of “system”. In our substantiation of the state of Ukraine as a system object, we consider it possible to recognize as obligatory those system features that are currently being agreed upon by the majority of system technician specialists: 1) the presence of structural elements, which together represent a unique reality; 2) the interconnection and interdependence of these elements; 3) the only purpose or appointment of system elements. The first systemic sign for the system of state Ukraine is confirmed by the fact of the uncertainty of state bodies. In the material aspect, social relations are actions or inactivity of people, in energy – transmission (spending) of different types of energy, in the information – the change of the essence and volumes of information. And it is the relationships that are those connections that combine the elements of the state system of Ukraine. The purpose of the state system of Ukraine can be outlined in accordance with Article 3 of the Ukrainian Constitution: the direction of the state’s activity determines human rights and freedoms. The systemic function of the state of Ukraine can be defined by the activity of asserting and securing human rights and freedoms, which is outlined in Article 3 of the Constitution of Ukraine as the main duty of the state. Guarantees (guarantees) of human rights and freedoms – the content of state activities in accordance with Article 3 of the Constitution of Ukraine. Corruption can be considered as a phenomenon that creates a problem of changing the normatively defined purpose of the state system of Ukraine – guaranteeing human rights and freedoms to antisocial – guaranteeing (providing) personal interests of corrupt officials. As a result, there is also a problem of obstacles to the realization of the rights of citizens, which in the sense of the system approach and in fact represents a problem of failure to achieve the goal of the state system of Ukraine.

183-193

Authors: Оксана Володимирівна Лазукова

Annotation: the article analyzes the peculiarities of the procedure for granting permission for conducting secret investigative actions in the conditions in the martial law, emergency or in the area of anti-terrorist operations. It is noted that the nascence as well as the currently existing problems of practical and applied nature connected with the implementation of the provisions of Article 615 of the Code of Criminal Procedure of Ukraine. Summarizing the above, by partially resolving issues relating to the peculiarities of pre-trial investigation in the conditions of a military, state of emergency or in the area of ATO, the law simultaneously put new, even more serious and complicated, caused by the nature of the changes. The separate aspects of the institute of pre-trial investigation that are considered within the article testify to the lack of legal certainty in many issues, which leads to the uneven application of these provisions in practice. In this regard, article 615 of the CPC of Ukraine needs legislative correction.

202-209

Authors: Галина Віталіївна Довгань

Interaction between EU law and national law of the member-states is on the agenda of many constitutional courts within the European Union. The latest judgment concerning it was passed by Belgian Constitutional Court in 2016. The article is devoted to this issue in the Polish constitutional context. Namely, the aim of the article is to examine the argumentation of Polish Constitutional Tribunal setting limits to the principle of primacy of EU law over the Constitution. Landmark decisions of Polish Constitutional Tribunal concerning EU law have been analyzed. In its judgment of 11th of May 2005 on the validity of 2003 Accession Treaty Polish Constitutional Tribunal precisely stated that Constitution of Poland has absolute primacy within the Polish legal order. In this judgment as well as in judgment of 24th of November 2010 on the constitutionality of Lisbon Treaty judges limited the primacy of EU law over the Constitution. Such limits includes norms forming constitutional identity particularly rights and freedoms provided by the Constitution and exclusive competence that are not transferred to the EU. It is concluded that Polish Constitutional Tribunal like many other constitutional courts used counter limits doctrine in order to protect national constitutional identity.

222-229

Authors: Michael Akpa Ajanwachuku

The rights of the Nigerian child are set out in the Child’s Rights Act, 2003. The Act made specific provisions for the rights of the disabled child. This paper critically examines the relevance of these provisions in the light of other legislations in Nigeria. It finds that the provisions are a surplusage and counter-productive; they should therefore, be deleted.

237-246

Authors: Olga Petrova, Natalia Popova

The article describes peculiarities of teaching English for specific purposes to the law university students under conditions of globalized English-medium communication. Specificity of legal-related activity, which is mostly connected with communication with people, accentuates importance of communicative professional competence and its component – English communicative professional competence. Communivative approach provides simulation of real activities, the skilled teacher should maintain classroom communication stimulating interlocutors to response, to act in the imposed professional situations promoting solution of the cognitive tasks associated with the law subject-matters.

8-18

Authors: Ігор Вікторович Семеніхін

This article is primarily concerned with investigating whether and to what extent legal doctrine actually influences judicial decision-making process in Ukraine and others countries. It is concluded that legal doctrine not only assists judges, but somehow restricts their exercise of discretionary power.

32-43

Authors: Денис Анатолійович Шигаль

Methodical aspects of the choice of comparative historical and legal research subject are considered. Specific requirements, in particular ones for the choice of the country (countries) of origin of historical and legal objects; for the definition of the objects of comparative historical and legal analysis; for the choice of the type (types) of comparison besides the general requirements to the formulation of the subject of future scientific work related to the definition of its relevance, problematical character and а scientific novelty are analysed. Consecutive consideration of the key parameters influencing the choice of the topic of comparative research in the article is aimed at improving the methodical support of scientific activity in the field of historical and legal comparativistics

56-65

Authors: Лілія Сергіївна Тертишна

The article is devoted to the analysis of legal subjects of the state regional policy, which in the mechanism of its implementation exercises organizational and economic powers. It is defined, that state and local authorities, that enforce basic and special regulation methods in accordance with the state regional policy, are vested with that sort of powers. The list of the state remedies to influence on economic activity, that subjects of organizational and economic powers use in order to implement the state regional policy, is defined in Article 12 of the Commercial Code of Ukraine. However, there are special remedies such as public-private partnership and special modes of management that should be defined as the basic resources of implementing of the state regional policy. The existence of such remedies requires a more detailed research of the effectiveness of their impact on economic activity and the possible necessity to supplement the subject composition of the state regional policy and expansion of organizational and economic powers of that sort of subjects.

75-91

Authors: Anatoly Getman, Віталій Анатолійович Зуєв

The ecological law of recent years is characterized by the expansion of the social relations covered by its legal norms. The nuclear and energy relations appear in addition to the traditional ecological relations – landscape, floral, and eco-systematic. There exists the resource component that does not belong to the traditional natural resources, for example, household and radiation waste, natural and climatic potential etc. At the same time, some components of the environmental law are separated artificially and function independently. We can mention the land law as an example of such separation as the lawyers who practice it believe that the land law has transformed and became a new branch of the legal system. The environmental law has come a long way. The article is also focused on its future development.

101-112

Authors: Андрій Сергійович Климосюк

The article investigates the direct object of diversion (Article 113 of the Criminal Code of Ukraine). It is proposed to determine the proximate object of diversion in relation to each form of its commitment, by determinating the sphere of social relations and the basic social value in such kind of relations, which is protected by art. 113 of the Criminal Code of Ukraine. The provisions of the Law of Ukraine «On the Fundamentals of National Security of Ukraine» of June 19, 2003 are substantiated for the correct conceptual solution of this issue

123-131

Authors: Вікторія Володимирівна Базелюк, Олександра Сергіївна Витвіцька

The article investigates the social, economic and regulatory factors establishing criminal responsibility for attacks on cultural values. Socio-economic factors to establish criminal liability for acts under Art. 298 of the Criminal Code of Ukraine expressed the need for social and political expediency of establishing such liability. Archaeological and cultural heritage plays an important role in society. It affects the development of science, art, economy and other spheres of social life. But the preservation and maintenance of the monuments of culture and architecture society requires constant attention and considerable resources. Regulatory factors establishing criminal responsibility for attacks on cultural values represent a system of legal acts regulating social relations in the sphere of archaeological and cultural heritage. The main such regulations is the Constitution of Ukraine, international treaties ratified by the Parliament of Ukraine and laws of Ukraine in the field of cultural values.

142-148

Authors: Дар’я Володимирівна Вітрова

The article is devoted to the study of the subjective side of the crime. Existing positions in the science of criminal law concerning this element of the crime were studied. The article used the most accurate definitions in the study of this topic. In addition, a superficial analysis of the elements of the subjective side of the crime was carried out, but the author paid special attention to the study of the main category – fault. The whole section of the Criminal Code of Ukraine regulates the issue of determining the fault in law, in addition, the norms of international law determine the importance of this element of the subjective side of the crime. The wine in its turn has a rather complex structure, which is also fixed by the rules of criminal law. In the process of research, based on the scientific developments of scientists dealing with the issue of studying the problems of qualification of crimes against the bases of national security of Ukraine, conclusions were drawn about the commission of acts solely with direct intent. Not the last place in the article is given to the question of intellectual and strong-willed moments that characterize guilt in the form of direct intent.

157-167

Authors: Ірина Вегера-Іжевська

The article is devoted to legal regulation of procedural rights and obligations of persons in a dwelling or other private property of which the search is carried out. Analyzed enforcement practice of Ukraine and the European court of human rights, foreign criminal procedure law, clarified the shortcomings of the normative regulation of the legal status of the individual, which can interfere with the right to inviolability of the home or other private property of a person. Suggestions to amend the current legislation with the provisions of the voluntary disclosure of the objects specified in the resolution, or the indication of the location of the person sought.

182-191

Authors: Tedi Sudrajat, Abdul Azis Nasihuddin, Sri Wahyu Handayani

Indonesia is a country which implemented local autonomy and have principle refers to the power of localities to legislate and regulate the behavior of residents. Based on that condition, local government has various policy matters which may cause problems in the formation of local regulation products. Until now, there are still uncertainty of standards and criteria on the establishment of Local Regulations and Local Head Regulations (governors, regents, mayors regulation) which may overlap one another and, as a result, finally revoked. This research paper is considered essential to conduct as there are numerous Local regulations with type, hierarchy, and legal substance which having technical characteristics and similarities with Local Head Regulations. In the other hand, many Local Head Regulations which should be organized in Local Regulations are somehow made in the form of Local Head Regulations. The merit of legislation principles based on law state is closely related with the formulation of local regulation products in the form of Local Regulations and Local Head Regulations. The authors discover a number of issues supporting the research objects, especially when creating the initiative Local Regulations. There were tendency of Council members to set up a technical issue in the form of Local Regulations in order that there would be no leeway to grant the authority to Local Head Regulations. Meanwhile, in other regions, there are a number of Local Head Regulations adopted into Local Regulations as their content materials are considered as the Local Regulations. Keywords: Local Regulation; Local Head Regulation; Principle of Legislation type; Hierarchy and Legal Substance.