PROBLEMS OF LEGALITY

3-14

Authors: Денис Анатолійович Шигаль

Problem setting: Recent trends of the science of history of state and law development are convincing evidence of the urgent need to improve and put in order all the methodological arsenal that is used. Sometimes the question is raised more radically: historical and legal science immediately needs its own means of scientific knowledge. This is due to the fact that in modern research on historical and legal subject-matter, that is extremely complex, a scientist needs a qualitative methodological tools acting primarily as a guideline in the vast historical and legal space. Comparative historical and legal method is able to be one of those guidelines which main difference from other comparative means of scientific knowledge is a flexible combination of comparative, historical and legal approaches. Despite the fact that this method is qualitatively different from the comparative and historical, and comparative and legal ones they have development history in common. M. M. Kovalevsky is considered to be the scientist who made the most weighty contribution to the working out of that methodological tendency of legal science. The work of this pre-revolutionary researcher in the field of legal comparative study is so fruitful that still remains a subject of attention of various legal disciplines, including the history of state and law science. Recent research and publications analysis: A lot of prominent history scientists and lawyers have repeatedly focused on M. M. Kovalevsky’s historical and comparative method. Furthermore, M. A. Damirli, V. T. Zonov, O. V. Kresin, M. N. Marchenko, N. Nikolaenko, A. H. Saidov, A. O. Tille, E. O. Skrypilyov, I. M. Sytar, G. V. Shvekov and others are among them. At the same time, despite the coverage of the individual elements of M. M. Kovalevsky’s comparative method in the scientific literature, the holistic view of its structure and functions of each of its components is not formed yet. Appropriate research using structural and functional approach is required. Paper objective: The purpose of this scientific paper is the structural and functional analysis of M. M. Kovalevsky’s historical and comparative method by isolating its elements such as the theory, methodology and research technique. As a result, this should allow to debate about the importance of this way of knowledge for the development of law comparative study as the subject matter at hand. Paper main body: In his work «Historical and comparative method in jurisprudence and ways of studying the history of law» M. M. Kovalevsky seeks not only to prove the importance of comparative way of knowledge for research in the field of law, but also provides initial theoretical and methodological reasoning of the new method. In the context of structural and functional approach to the content of M. M. Kovalevsky’s historical and comparative method it is already possible to single out its necessary elements such as the theory, methods and research technique, indicating the scientist’s attempts to develop a certain concept of use of this means of knowledge. In particular, he reveals the theory of his method by setting tasks of building the history of progressive forms development for living together and studying the history of law of one nation or another and also through historical and comparative approaches to their solution. In M. M. Kovalevsky’s work we can also find the principles of the research objectives use which are the basis of his method theory. Methods and technique of historical and comparative analysis subject to the requirement to compare the largest possible number of objects, in the form of legislation, that should belong to peoples which are close in their social development, and are specified in the appropriate practical recommendations. In addition, M. M. Kovalevsky directly indicates the possibility for involving other methodological ways during the comparative analysis to obtain new facts. Conclusions of the research: Estimating the M. M. Kovalevsky’s efforts in the methodology of historical and legal comparative study it should be noted that the attitude to his method in the scientific community is controversial. While agreeing, in general, with a positive appreciation of the M. M. Kovalevsky’s scientific heritage it should be pointed that the scientist first qualitatively tried to develop theoretical and methodological basis for the historical and comparative method in the domestic comparative study. Despite the fact that while theoretically reasoning his own method, M. M. Kovalevsky lacked modern structural and functional approach, but in most cases he was able to aptly describe the individual elements of the theory, methods and technique of the new means of special and scientific knowledge.

26-32

Authors: Ярослав Павлович Любченко

Problem setting. Current legislation does not adequately regulate using of alternative dispute resolution. The article emphasizes the need for amending existing legislation to ensure its compliance with international standards, its obligations in connection with the signing of the Association Agreement and ensure efficient use of alternative dispute resolution (hereinafter - ADR) party relations. Recent research and publications analysis. Problems of alternative dispute resolution were viewed in their works viewed N. Bondarenko-Zelinska, Y. Pritika, O. Spectr, A. Shypilova, V. Yakovleva and others. Paper objective The article goal is to analyze the proposals of the Constitutional Commission in the field of justice, as well as analysis of bills related to ADR, research of problems of legal regulation, which will help optimize procedures and improve the law in general. The paper main body. Realization of economic, political, governmental, legal and other reforms in society lead to a significant strengthening of social and legal tensions, the emergence of a large number of conflicts in the legal field. Traditionally, parties use courts that are organized and funded by the state in order to protect rights and legal interests. However, justice for many obvious advantages has several disadvantages: a large workload of courts, length and complexity of the proceedings, considerable legal costs not properly worked out mechanism of the principle of competition and equality. Conclusions of the research. Problems of alternative dispute resolution in domestic legal literature are mostly synthesis and theoretical. Various alternative forms, procedures, and methods are used by foreign countries, along with the traditional proceedings. They do not replace justice and do not deprive the persons right for judicial protection. Instead, give them a choice between public or non-governmental (private) forms of resolving legal disputes, allowing parties to decide which type of procedures will help to resolve specific legal dispute.

42-52

Authors: А. М. Ісаєв

Features of inheritance of money and the right on deposit in a financial institution, on the one hand, related to those functions that they perform as the objects of inheritance law in civil circulation, on the other hand, with their specific legal characteristics. Speaking of money, it is necessary to take into account the fact that the inheritance may include both cash and cashless money. And, despite the fact that the cashless money defined by the law as entries in accounts in financial institutions, inheritance of right on deposit in a financial institution regulated by the Civil Code of Ukraine separately from the inheritance of money. The need for such research caused by practical significance of inheritance of money and the right on deposit, and by small number of research in that area. The issue at different times were explored by such scholars as M. V. Gordon, V. I. Serebrovsky, O. P. Pecheny, V. I. Krat, I. V. Zhilinkova, M. A. Korostelyov etc. The article aims to reveal the influence of legal characteristics of money on civil-law regulation of inheritance of money and the right on deposit in a financial institution. The purpose of research should be achieved through solving such problems as analysis and harmonizing the current inheritance laws in the area of issue. In the article, the peculiarities of inheritance of cash and cashless money were defined, as well as the specifics of universal legal succession of right on deposit in the bank (financial institution). During research some disadvantages of current inheritance legislation in this sphere were revealed, so as the ways of its improvement. Undoubtedly, a segment of considered legislation is debatable in many ways. However, it should be noted that inheritance law determines the process of transition of legacy from testator to the heir. Legal regulation of such relationships depends on the understanding of individual components of heritage, including money in cash and cashless forms. Thus, it can be concluded that inheritance of money and the right on deposit in a financial institution has its own specific characteristics. Peculiarities of legal regulation of relations connected with the universal succession of money, caused by form of objectification of money in civil circulation and by the functions, they perform. In addition, the legal regulation of inheritance of money, connected with their high liquidity, economic value, as well as with their importance to the life of successors

62-70

Authors: Олексій Юрійович Зуб

Currently the directions for the development of modern civil procedural law such as optimization, facilitation, forwarding proceedings promoting the increase of the civil procedure efficiency factor are of peculiar importance. Their results are occurrence and functionality of simplified proceedings system designed to facilitate significantly hearing some categories of cases, promotion of their consideration within reasonable time and reduce legal expenses so far as it is possible. The category “simplified proceedings” in the native science of the procedural law is underexamined. A good deal of scientists-processualists were limited to studying summary (in the context of optimization) as a way to improve the civil procedural form, summary proceedings and procedures functioning in terms of the mentioned proceedings, consideration of case in absentia as well as their modification. Among the Ukrainian scientist who studied some aspects of the simplified proceedings are: E. A. Belyanevych, V. I. Bobrik, S. V. Vasilyev, M. V. Verbitska, S. I. Zapara, A. A. Zgama, V. V. Komarov, D. D. Luspenuk, U. V. Navrotska, V. V. Protsenko, T. V. Stepanova, E. A. Talukin, S. Y. Fursa, M. Y. Shtefan others. The problems of the simplified proceedings were studied by the foreign scientists as well, such as: N. Andrews, Y. Y. Grubanon, N. A. Gromoshina, E. P. Kochanenko, J. Kohler, D. I. Krumskiy, E. M. Muradjan, I. V. Reshetnikova, U. Seidel, N. V. Sivak, M. Z. Shvarts, V. V. Yarkov and others. The paper objective is to develop theoretically supported, practically reasonable notion of simplified proceedings in the civil process, and also basing on the notion of simplified proceedings, international experience of the legislative regulation of simplified proceedings, native and foreign doctrine, to distinguish essential features of simplified proceedings in the civil process and to describe them. In the paper we generated the notion of simplified proceedings that shall mean a specific, additional form of consideration and solution of civil cases that is based on the voluntary approach to its use, characterized by the reduced set of procedural rules and ends with rendering a peculiar judicial decision. Moreover, the most common features of summary proceedings are highlighted. Simplified proceedings as a specific form of consideration of dispute regarding civil law and as a special way to optimize legal proceedings is provided with a set of peculiar features that distinguish them among the other proceedings. Therewith, the analyzed features shall be defined as basic, in other words, such features peculiar to the certain kind of proceedings during its development and direct application to the civil procedural law.

79-88

Authors: Anatoly Getman

The influence of globalization and integration processes on the research of the issues of environmental law and legislation is examined. Environmental legal science is considered to be a system of knowledge and ideas on environmental law and its different institutions aimed at developing the environmental law doctrine, analyzing its theoretical and methodological issues, forming the conceptual apparatus and scientific categories for environmental legislation, studying the role of the state in the implementation of ecological functions and environmental policy.

99-106

Authors: Валерій Федорович Оболенцев

Raising of problem. Socio-economic processes in Ukraine in the last years require scientific researches which would become the proper theoretical subsoil of reformation of the law-enforcement system. Actuality of theme. Consider perspective a system method in researches of criminology. The analysis of the systems of law-enforcement sphere to this time remains actually not developed. An analysis of the last publications is in this sphere. Researches, where on principles of system method prevention of criminality would be examined, in domestic criminology relatively a bit. O. E. Manokha in dissertation in criminology did an author expound the analysis of «Systems results it system criminology to the analysis in number high-quality indexes of criminality in Ukraine for period 1972 - 1995 y., showed the system of its connections with practice of prevention of crimes. O. Frolova. on principles of the systems exposed practice of criminal punishments in Ukraine. Author specified that efficiency them separate kinds are not identical and system depends on many social factors. Purpose of the article. The аim of article is to presents the results of a systematic analysis of the formal procedures prevent crime in Ukraine. Exposition of basic material. The purpose of crime prevention as an artificial system is defined as the absence of crime - penal violations of existing social relations, preservation of the latter. Purpose of the system of crime prevention - keeping people from violating the legitimate social relations, blockades or start a potential criminal activity. For a system of crime prevention functions can be considered a means of keeping the population from criminal acts and termination initiated criminal attacks. The problem of crime prevention system - inconsistency functions, parameters and structure of the system to its destination. Context of the system of crime prevention - a modern Ukrainian society. Virtual border crime prevention system it is advisable to consider virtual demarcation between the subjects of crime prevention and social relations protected The external environment for the system to prevent crime in our opinion are protected social relations. The purpose of system analysis system to prevent crime we mean to the improvement of its efficiency, building generalizing the content model of interaction with social relationships (legitimate and criminal) in modern conditions Ukrainian society. Objective analysis of the system of crime prevention - identifying ways to improve the effectiveness of the system in achieving its goal, to provide advice on compliance functions, parameters and structure of the system to its destination. The results and prospects of this research. Thus the aims of the probed system are grounded in the article; its problem and context of consideration is formulated; the point of view of analyst, scopes of the system, surroundings, purpose and task of analysis of the systems, is determined. In subsequent it must be carried out collection and working of information about the system: historical analysis (genetic and prognostichniy aspect), substraktniy analysis, structural analysis (exposure of conformities to law of co-ordinating and subco-ordinating combinations of elements of the system), functional analysis of the internal and external functioning (adaptive and adapting activity), informative description of the system.

116-123

Authors: Карина Анатоліївна Бочарова

A lot of deviant behavior manifestations regarding cultural, historical, social and educational objects of property valuable for the population and state appeared on the territory of the modern urban areas. It should be taken into account that the demonstrations of aggression and a deviant behavior constitute a system of acts committed by an individual or by some destructive groups that deviate from the generally accepted rules. At the same time, every act of an individual is a conscious action, act of self- determination, where a person affirms himself/herself as a personality in relations to another person, to himself/herself, social groups or society. In recent years, violence and cruelty among the population and destructive behavior of young people and teenagers arose consequently the number of vandalism acts increased. This article defines the concept, the nature and types of vandalism as an aggressive illegal behavior. The necessity of differentiating vandalism as a separate object is caused by the fact that vandal’s acts acquire a special social meaning. Since the appearance of the first work on this topic the main task of social researchers was to determine vandalism motives. Our paper analyses two main types of classification vandalism depending on reasons and motives. As a rule all of them are motivated by hooligan, selfish, emotional, national, racial, religious and sexual grounds. Vandalism is one of the forms of the person’s destructive behavior that is expressed in deliberate breaking tangibles. So, while studying this phenomenon a special attention is paid to the fact how the peculiarities of space and design influence the possibility to perceive and control the behavior of persons committing vandal acts.

133-144

Authors: Іван Іванович Мусієнко, Євген Євгенович Гречин

One of the most efficient measures of crime counteraction is timely reporting law enforcement agencies during which a special role is dedicated to persons (informants). They provide assistance to authorized subjects in the sphere of corruption counteraction by giving operative significant information. Thus the article is aimed at the analysis of law enforcement bodies and special services of the USA experience concerning work with confidential sources. The latest tendencies of the US police activities are concentrated on the attraction of citizens to cooperation with police. Such cooperation is efficient in prevention of most hard crimes due to informants' assistance, i.e. people who display desire to cooperate with police. Scientists D. Sunshine and T. Tyler consider that the nature of relations between police and publicity has a great influence on the efficiency of crime counteraction, local citizens' welfare. The authors draw attention to the importance of establishing benevolent relations between police and local population. The given article also reveals the USA law enforcement agencies experience of institute of confidential cooperation using. Using of operative sources of information remains the most efficient tools for detection, suspension, disclosure and investigation of crimes in the whole world. With the aim of achievement of accuracy in terminology it is conducted the identification of different kinds of informants depending on their role and law enforcement institution they collaborate with. Conclusions. Actions in favor of society are a important element of informationship as social institute. The results of conducted analysis testify that the modern understanding of institute of confidential cooperation in the USA is grounded on the following principles: - the object of message is information about any abuses, violations, immoral behavior that may cause significant violations of rights and duties of citizens, damage to society or separate citizens and other public interests; - the motive of moral informant is the protection of public interests durante absentia personal direct interest in the results of investigation of the claim he has made; - informant has to be sure in the truthfulness of information he provides; - the sphere of informationship activity has to be as public as private sphere if its activity can influence the rights and duties of citizens and public interests. Thus the promising trend of further scientific researches has to be analysis of experience of the given problem solving in the other leading countries of international community with the aim of its consideration in domestic practice.

156-167

Authors: Віта Олександрівна Сліпенчук

Problem setting. In the process of transformation of Ukrainian society towards the assimilation and implementation of basic European values such as human rights, democracy and the rule of law the role of personality that respects the dignity of others and their right to free expression in its multifaceted manifestations becomes more important. Such definitions of it assume the character of the ideal to be pursued, but that has not received adequate expression in people's minds and in practice yet. Since this ideal inextricably links right and personality, enabling the operation of law due to the special qualities of the individual, it can be defined as the ideal of legal personality. It is the formation and realization of such ideal that becomes urgent practical task of our society, which in turn requires a comprehensive theoretical understanding. Recent research and publications analysis. It should be noted that some philosophical aspects of the meaning of legal personality and its formation are revealed in the works of Ukrainian researcher in the field of philosophy of law S.I. Maksimov. However, all actual researches are based on a certain cultural and ideological tradition. The research of a Polish-American scholar in the history of philosophical and legal thought Andrzej Walicki pays attention to the ideological and methodological potential liberal legal philosophy of the late 19th - early 20th century in the Russian Empire, realization of which, unfortunately, failed because of the violent interruption of this tradition by Bolsheviks. Researches of philosophers of law of that period are of particular significance in this issue: Ukrainian by origin and outlook Bohdan Kistyakivskiy and one of the authors of the Universal Declaration of Human Rights (1948) Serhiy Gessen. It is reconstruction of the concept of "legal personality" in the views of philosophers of law of that period, which is really made for the first time, which will give, as we believe, an opportunity to analyze the formation of the ideal of legal personality. Paper objective. Thus, the purpose of this article is analysis and systematization of philosophical views on the issue of forming the ideal of legal personality in Russian philosophy of law, limited by the late 19th - early 20th century During this period, leading philosophers and jurists come to the conclusion that the existence and development of the law governed state should be based on a legal personality. Taking into account the diversity of interpretations of liberal concepts, we begin with a brief description of the charms of liberal ideas, find out the core values that inspire these concepts and focus on the source of political programs and core values - individual autonomy. Paper main body. As it is known, liberalism is a dynamic system that responds to changes in social life and is transformed according to the new reality. Liberal concepts of the thinkers of that time give us the opportunity to realize what freedom, equality and human rights are inviolable condition for the individual existence of human being, laying the values and guidance in the legal consciousness of a person and promoting an individual’s recognition of law as the main regulator of social relations, aimed at protecting and strengthening the autonomy (which directly is an ideal basis for development of a legal personality). Conclusions of the research. Thus, the abovementioned allows us to understand the significance of liberal ideas for building a modern ideal model of legal personality, formed on a combination of the spiritual and legal ideals and values. The importance of the concepts of representatives of Russian liberalism is determined by existence of: 1) the idea of equality, which in turn becomes a conceptual basis in shaping of legal personality (after all, the basic values help to reveal the inner depth (essence) of the personality, thereby reducing it to the level of subject, on whose existence law is focused.); 2) the idea of the presence of appropriate freedoms in personality (freedom is revealed as the spiritual foundation of not only the personality, but also society) and natural rights. Rights in turn, act as a form of social relations and independent personalities, behavior and interaction of which is subject to the general rules. Independence of subjects in relation to each other and their joint subjecting to common standards define the content of the legal form of freedom.

176-183

Authors: І. А. Cемьонкіна, О. О. Ходаковська

Specific features of the English legal discourse and trends of its transformationin the context of global challenges have been considered in the paper