PROBLEMS OF LEGALITY

19-29

Authors: Olga Aleksandrovna Sydorenko

This paper has dealt with incidence of the balance between democracy and the rule of law. The problem of quantitative and qualitative characteristics of democracy is one of the key issues in its theory, was covered in the writings of the representatives of elitist and collectivist concepts. Could we unequivocally state that the democratic form of government has won and there are no threatening factors? A significant number of modern countries are not ready to accept democratic principles. The cleavage between the scholars ranges from the maximum limitation of citizens’ political participation and the transfer of the entire initiative exclusively to the political elite, to attempts to involve them in the decision-making process at all levels. We believe that a comprehensive and systematic study of the whole complex of the issues related to the balance of democracy and the rule of law must be considered among the most relevant and perspective directions of modern legal science. And a reliable deed in this direction can be only the notion of democracy as the rule of the majority, where the differences between interests are not depressed and ignored, but governed by law, supported by socio-political agreement on the basis of balance of interests and mutually beneficial compromises, in which provision of both the rights of minorities and natural inalienable human rights are guaranteed.

39-50

Authors: Malyshkina N. O.

The implementation of the principle of separation of powers, defined in the Constitution of Ukraine, in practice, means that each branch is independent in its sphere, but only the courts have the last word in the power disputes over the constitutionality and legality of the activities of other branches of government. It is the judiciary that is a prerequisite for maintaining the authority of the state power as a whole, because in the absence of the special restraining powers that it possesses, the legislative and executive power is transformed from power into the organization of violence against society. In fact, the judiciary acts as the tool by which the right effectively affects social relations. A clear and strict adherence to the procedural forms of activity is intended to ensure the assurance that the court will actually adopt legal decisions. Only the law and the rule of law, and not any other considerations (third-party influence, demands, instructions) form the basis of the activity of the judicial branch, while the activities of other branches may prevail over the motives of expediency or social necessity. The court plays a significant ideological role, since it brings citizens respect for the law and promotes adherence to accepted standards of conduct in society. The judiciary has a considerable advantage in its interaction with other branches of government, in its function and functionality, that there is no such activity of the state in the person of its bodies that would not be subject to judicial control or constitutional supervision. It is these powers that significantly change the provisions of the judiciary in the system of public-legal relations, that is, turn it into a "true" power. Judicial control is one of the main guarantees of the proper functioning of the system of checks and balances, as well as an essential element in the process of restoring the balance in the interaction between the higher authorities of each other.

63-76

Authors: Samoylenko G. V.

In the article the author investigates the problems of civil law regulation of passenger transportation in the aspect of providing passenger rights. Right is characterized by a new wave of popularity of "natural law", a liberal and anthropological concept. It criticizes the theory of positivism as antagonistic to natural human rights. The author, studying the specifics of transport activity (activity of transportation of passengers by various modes of transport), concludes that the complexity of choosing one of the proposed concepts in civil law for the provision of passenger rights is due to a number of factors. Among them: historical traditions and technological features of operation of various types of transport; the specifics of the legal relationship between the carrier and the passenger; the need to secure the rights of the "weak side of the contract (passenger); use of the design of a "public contract" to regulate relations between carriers and passengers; use of means of public legal influence to ensure the balance of the legal status of the carrier and passenger; the orientation of "private law" to the enjoyment of human rights; application of transport and "consumer law". In the course of the analysis, the author concludes that the modern concept of civil law is and should be the concept of "private law". "Private Law" includes a system of complex relationships of various elements, orientations, means of influencing civil legal relations. Its components are the theory of natural law, positive law, utilitarianism, liberalism, and others. This suggests that it is a "synthetic" concept that recognizes the necessary and possible state influence on market relations in a developed civilized civil society, the existence of which is possible only in a democratic, rule-of-law state. Empowering the state to ensure human rights through regulation of legal relationships should not be considered a concession to the ideas of liberalism. On the contrary, the function of the state should be to create conditions for ensuring equal opportunities for all participants in civil legal relations (in the context of the contract of carriage of a passenger - the provision of passenger rights), the realization of their freedoms. Ensure the realization and protection of passenger rights on the basis of the ideas of freedom, justice, security, priority of human rights is possible only by consolidating them in the legislation. Only legislation is a necessary element of a mechanism for legal regulation of legal relations, which contains the necessary levers to ensure the rights of the passenger. Legislation regulates legal relations and forms a market environment and the possibility of using state means of coercion in relation to offenders. Consequently, the concepts of liberalism, utilitarianism, normality, natural law, anthropological approach should be used with caution, knowing that "private law" has already absorbed their achievements. At the same time, this does not rule out the perception and the fact that violations of the rights of passengers, especially in the area of carriage by road, are too frequent. This situation is due to the dominance of the ideas of liberalism. This requires improvement of the transport legislation through the legislative formation of the conditions for the operation of the transport market: by regulating the legal status of the participants (especially carriers, and the emphasis on the passenger's right to safety), the legal mode of operation and operation of vehicles, guarantees of passenger rights (including through the system normative fixing of compensation to passengers), clear criteria exemption from liability for non-compliance or violation of performance contractual obligations.

90-98

Authors: Lymar I. V.

This article deals with problems of enforcement effectiveness and searches of optimal models of enforcement proceedings developing. The author analyzes the present state of enforcement proceedings developing in Ukraine, studies the main stories of legislation in enforcement of judgments in civil justice of Ukraine, changes in the organization of the work of the state executive service bodies, introduction of foreign access and adaptation of the procedure of enforcement of judgments to European standards that affect on the interaction between judicial authorities and authorities of enforcement of judgments. The stories of the civil procedural legislation in the enforcement proceedings are considered in connection with the entry into force of anew Criminal Code of Ukraine, the Law of Ukraine "On Enforcement Proceedings", "On the bodies and persons engaged in the enforcement of judgments and decisions of other bodies" and other legislative documents in the framework of judicial reform. The positive assessment of the introduction of the private performers’ institution and recommendations on the effectiveness of the new legislation realization in enforcement of judgments in civil justice are given. The purpose and objectives of the study is an analysis of the application effectiveness of normative principles in enforcement proceedings; study of stories, advantages and disadvantages of the institute functioning of enforcement proceedings in Ukraine; justification of theoretical-methodological models of enforcement proceedings as a procedure of the civilization process; improvement of civil legal regulation mechanism in enforcement of judgments. The object of the study is the novations of the enforcement of judgments institute in Ukraine, their features and ways of improvement. The subject of the study is certain aspects of the mechanism of the enforcement of judgments, ensuring proper protection of the rights, freedoms and legitimate interests of the enforcement proceedings participants, stories of enforcement proceedings and their implementation in practice.

108-117

Authors: Mazalova A. O.

The article is devoted to the clarification of the essence and functional load of the legal forms of public-private partnership in the conditions of modern market economy. The defects in the legal provision of public-private partnership relations were discovered and separate proposals for their elimination were given. The real state of legal regulation of public-private partnership, certain weaknesses and ways of their improvement were analyzed. Numerous economic crises have proved the necessity for state influence on economic processes (influence of public interests, including state regulation), led to cooperation between the state and local governments with the private sector, one of the forms of such cooperation is the mechanism of public-private partnership. Over the past 10 years, Ukraine has made a significant step towards establishing economically legal mechanism for the interaction of power and business, as the result the theme of public-private partnership in this context is becoming increasingly relevant. Public-private partnership is really an effective tool for solving important problems of balanced development at the state, regional and local levels. However, the obstacle to its effective functioning is the imperfection of legal regulation. The law that regulating the general provisions of the RFP, unfortunately, does not work, and will not work if no measures are taken to improve it.

127-139

Authors: Klymenko A. L.

The article analyzes the approaches to the definition of the concept of poverty, considers different definitions. The causes of impoverishment and impoverishment of the population are found out. The path of elimination is proposed. Poverty is inherent in any society, but its causes, scales, specific manifestations and consequences differ significantly in different stages of its development. During the crisis of the development of society there is a special stratum – poor people who need the introduction of additional social regulators in the state. Poverty should be considered as the extreme poverty point of the majority of the population, which is not able to meet the minimum necessary social needs at the expense of its own financial resources. By the level of financial provision of the able-bodied population and the population of retirement age, our state is positioned at the level of countries of the so-called "third world" – countries with very low indicators of socio-economic development, etc.). The status of the impoverished receive families whose incomes are below the subsistence level, experiencing deprivation in the sphere of consumption and perceive themselves as very poor. To reduce the number of poor and impoverished, it is first necessary: a) to review the content of the consumer basket (it is noteworthy that the deputies of the current convocation have undertaken for this, but important results that are not yet noticeable), b) increase the minimum social guarantees, remuneration of employees (for doctors, educators, and scientists), which can be done by indexing, taking into account the consumer price index, c) equalizing the living and non-taxable minimum, d) reducing the number of civil servants, equaling living and non-taxable mines imum The implementation of these measures will at least meet the basic pro-European standards of community development, taking into account the main priorities of the EU for Ukraine.

151-159

Authors: Sharapova S. V.

The article is devoted to the research of topical issues concerning the features of land and other natural resources protection in the process of land use. The article deals with scientific views on the concept of "land protection", "land use". It is noted that in the complex use of land protection should also be complex. In the process of using the land plot, the natural resources associated with this site must be protected and protected. Integrated use of land should be environment-friendly, resource-saving, preserve soil conservation, use must be non-exhaustive for both land and natural resources, which are in close relation with the land. In this aspect, the use of land can not be considered without their protection. The purpose of this protection is, first of all, to implement appropriate measures to improve the state of land and other natural resources that are located on them. The legal protection of land should be aimed not only at preserving the qualitative state of the land, but also the state of the associated natural resources that are interconnected and interacting with it, and the environment as a whole. Consequently, the complex use of land must necessarily be considered taking into account the protection of natural resources and the environment. The complex land protection system is formed with the integrated use of land and includes the following components: protection and preservation of the quality of land; protection of natural resources (associated with land), protection and preservation of their qualitative and quantitative status; the protection of both land and natural resources (associated with land) as one single object.

160-172

Authors: Bondarenko M. A.

Transfer pricing for the tax legislation of Ukraine is a new phenomenon. This situation has caused a number of unresolved issues in both law enforcement and tax law science. The problem of such a situation adds to the complexity of transfer pricing relations. Such relations are on the brink of legal and economic activity. They are transnational in nature. At the same time, transfer pricing is often used for tax planning purposes. All of the above factors require clear and complete legal regulation of the law. However, the Tax Code of Ukraine, although it stipulates the transfer pricing rules in Article 39, they are largely incomplete. Moreover, some provisions of the Tax Code of Ukraine can not be applied without reference to international primary sources. One of the most problematic aspects of the legal regulation of transfer pricing in Ukraine is the legalization of transfer pricing methods. This direction of transfer pricing is one of the most complex from a practical point of view. At the same time, the provisions of the Tax Code of Ukraine are necessary for the normal use of instructions or recommendations. This, in turn, causes the need for both taxpayers and controlling authorities to refer to international primary sources. At the same time, such sources, most often, advocate OECD. Special attention should be paid to the legal regulation of transfer pricing reporting. Since these relationships are made between a resident and his non-resident counterparty, they provide reporting on several levels. However, the Tax Code of Ukraine does not regulate the compilation and submission of accounts at a different level than the state level. Thus, both taxpayers and controlling bodies are forced to seek information on the correct application of the transfer pricing rules.

181-190

Authors: Tkacheva E. V.

The article analyzes the causes of suicide as a criminological phenomenon. It is stated that it is statistically stable, its prevalence correlates with cultural-historical, ethnic, socio-economic and other aspects. Thus, considering suicide in the context of the dominant concepts in society about the essence of life and death, freedom of choice, morality, etc., that is, from the point of view of criminology, philosophy, sociology, psychology, general reasons can be recognized: 1) actually social (they include property inequality people, as well as contradictions in the national, class, executed, caste, professional and many other features); 2) economic. At the specially-criminological level, it is appropriate to classify the causes of committing suicide according to their place of origin or accumulation, because they are common to certain groups of people, united on different grounds artificially (by principle and method of group formation) or naturally (on the basis of joint activity provided awareness of their belonging to this group). For this reason, the following are divided into: 1) family, among them above all, it should be called violence, humiliation, exploitation in the family, etc.; 2) collegial, that is, those that arise in a collective formed by the type of employment in a society, first of all it refers to underestimation, neglect, aggression, humiliation, etc.; 3) group (in particular, it is about interest groups; in this case they are deprivation of the possibility of self-expression, indifference, loneliness, etc., (b) groups on other grounds (age, profession, subculture, sexual orientation, etc.) It should be noted separately that such groups as (c) friends, comrades (very confident, close, frank relationship between them), among the reasons most often indicated betrayal, loss.

202-216

Authors: Reznikova О. І., Lipalo J. А.

The article is devoted to the study of the theoretical foundations and practical problems of returning assets acquired as a result of the commission of crimes in the criminal proceedings of Ukraine. It was noted that bringing a person to criminal liability for committing corruption and other crimes necessarily should include comprehensive activity on the return of the proceeds of crime, named its main structural elements: the purpose, subjects of realization, objects of search and stages of implementation of such activities. It is indicated that the purpose of such activity is to minimize the negative consequences of a crime by resorting to the acquisition of illegal assets into the state's income, as well as preventive influence, and the object is the proceeds of crime. It is proved that the activity of returning the assets obtained by the crime gull in a criminal proceeding includes the following operations: detection, search, arrest, management and special confiscation of such assets, and its subjects are the investigator, the prosecutor, the investigating judge, the court and officials of the National agencies of Ukraine on the detection, tracing and management of assets derived from corruption and other crimes. The analysis of leading international experience in the field of return of assets obtained as a result of the commission of crimes has been analyzed. The legal status, functions and powers of the National Agency of Ukraine for the detection, investigation and management of assets derived from corruption and other crimes as the subject of such activity are investigated.

229-237

Authors: Musіenko I. І., Fastovets V. A.

The authors examine the peculiarities of the legal regulation of the tasks of the Internal Security Agency of the Republic of Poland. A comparative analysis was conducted with domestic legislation, which defines the tasks of the Security Service of Ukraine, the advantages of the editorial staff of the Polish law "On the Agency of Internal Security and the Intelligence Agency" as well as the tasks of countering threats to the internal security of the state, among other things, are highlighted; neutralize the threats to the international authority of the state; the pre-trial investigation of crimes not only on the criterion of their belonging to the subject matter of the investigators of the Internal Security Agency of the Republic of Poland, but also on the criterion of their becoming a threat to the security of the state. It is concluded that such an approach of the Polish legislator allows more fully to define the competence of the state internal security authority than the approach used by the domestic legislator. According to the results of the analysis of legislative acts of Ukraine, which defines the tasks of the Security Service of Ukraine, attention was drawn to a certain inconsistency of the provisions of the Law of Ukraine "On the Security Service of Ukraine" in this part of the provisions of other normative legal acts of Ukraine. It also became clear that the tasks of the Security Service of Ukraine, formulated in the Law of Ukraine "On National Security of Ukraine" formulated in its competence, do not fully cover its main purpose in ensuring the state security of Ukraine. It is proposed to clarify the competence of the national intelligence service in the Law of Ukraine "On the Security Service of Ukraine" with the help of such components of its competence as functions and powers. In addition, taking into account the experience of legal regulation of the activities of the Internal Security Agency of the Republic of Poland, amendments were also proposed to the provisions of the Law of Ukraine "On the Security Service of Ukraine" defining the competence of the national intelligence service, in particular regarding the separation: counteraction of the Security Service of Ukraine to threats to the state security of Ukraine, in including - and countering threats to the international authority of the state; participation of the Security Service of Ukraine in the formation and implementation of state policy in the sphere of ensuring national security and direct provision of formation and implementation of state policy in the field of state security.

249-257

Authors: Olesia Yanivna Tragniuk

The article deals with the problems of legal and institutional support for the implementation of the Common Defense Policy of the EU in current circumstances. The peculiarities of legal regulation of this policy and certain organizational and legal forms of its provision have been determined. It has been established that the legal instrument that provides the implementation of the General Defense Policy, which is an integral part of the Common Foreign and Security Policy of the EU, has its own features related to the nature of the cooperation of the member states in this area. It is about not so significant, in comparison with economic sphere, restriction by the member states of their sovereign rights in determination of questions of external safety and defense. The consequence of this is the adoption of acts that are predominantly «soft» by their character. The EU initiatives in the field of strengthening the Union's defense capabilities in the context of the implementation of the Global Strategy for the European Union's Foreign and Security Policy have been analyzed as well as the international legal framework for cooperation between the EU and NATO with regard to ensuring common defense and security objectives, and also the legal nature of the European Union's acts in the field of the Common Defense Policy has been determined.

22-33

Authors: Slinko T. N., Mits A. M.

The article considers the essence of the realization of the right to freedom of speech on the Internet. The guarantees of the right to free expression of views in the online mode in a democratic state have been investigated. Taking into account both positive and negative consequences (we are talking about cyber and hacker attacks), as well as the speed and possibilities of the network, the issues of state regulation of Internet content are becoming relevant. As we see, in the present conditions, the need to provide and observe guarantees of human rights in the Internet, namely freedom of speech and freedom of expression, becomes urgent. Now, emphasizing the need to introduce human rights standards on the Internet at the national level, the Council of Europe is developing numerous recommendations and comments, taking into account the peculiarities of the legislation and the state of many countries. The difficulty for Ukraine lies in the fact that, first of all, the requirements of national legislation should be adapted to international provisions. The prescriptions and provisions of the current legislation of Ukraine, mechanisms for revealing the balance between state interests and citizens' rights on the example of foreign countries are analyzed. Attention is focused on the existing problems of ensuring the right to freedom of expression on the Internet, ways of possible legal regulation of the information on-line space, taking into account the compulsory observance of human rights, are suggested. The role of the public in controlling Internet activities deserves special attention. It is noteworthy that the Internet Association of Ukraine operates in our country, one of whose functions is cooperation with the Verkhovna Rada of Ukraine committees on the development, adjustment and analysis of the regulatory and legal framework governing Internet activities. In our opinion, it would be advisable to expand its powers, considering its decision along with other human rights media organizations to control the circulation of online information, because only in the case of consolidated activities of all those interested in the development of Internet regulation of subjects, they will be able to professionally approach the evaluation of various materials. Taking into account what has been said, it can be stated that the issue of freedom of speech in Internet sources has certain features, legal specifics and requires concretization. The balance between the information society and the state requires respect for the principle of proportionality, promotes the realization of human rights, provides for exclusively those restrictions that are necessary in a democratic society. In addition, legislative regulation and the delineation of the concepts "authorized statements" and "statements are illegal", that is, violating rights, is an urgent necessity in a state governed by the rule of law. When considering the category of "content that may cause concern in terms of tolerance and respect for others," it is important for the legislator not only to adopt norms that impose prohibitions, but also to try to find the root causes of misunderstandings in society, to set the vector for avoiding discriminatory influences, minimizing the likelihood of violations of law on freedom of expression.

45-54

Authors: Malyshkina N. O.

Different approaches to the understanding of the content of the form and legal means of functioning of the system of checks and balances in the relations between the higher state bodies are analyzed in the work. It is concluded that in practice not only the distribution of powers of the higher state authorities is important for the achievement of the goals defined in the Constitution of Ukraine, but also their interaction, which necessarily takes place in clearly defined legal forms with the use of legal means. Legal means and forms of functioning of the system of checks and balances in the interaction of higher authorities are part of the law as a whole in its instrumental sense and in its unity form legal mechanisms that act to achieve socially meaningful results. Implementation by the supreme bodies of state power of their constitutional powers in relation to one another is actually the legal form of their interaction. Such interaction not only can not exist without certain tools, legal means, but only happens when they are implemented and in order to achieve the goals and objectives of the state, and is actually an external manifestation of a comprehensive system of checks and balances, which is enshrined in the Constitution and laws of Ukraine. It is also concluded that the system of general and special (legal) conditions, special (legal) means, forms, mechanisms of proper implementation of the competence and powers of the highest bodies of state power of Ukraine, defined by the constitution of Ukraine and the laws of Ukraine, during their interaction with each other acts as a guarantee of a system of checks and balances in the relations of the highest bodies of state power in Ukraine. In real life, the same legal means and legal forms can simultaneously serve as ensuring the proper organization of the exercise of powers by the highest state authorities, taking into account the system of checks and balances enshrined in the current legislation, as well as guaranteeing the protection and inviolability of the constitutional law as bodies of state power and citizens from any encroachment, give it a real character. The absence or ineffectiveness of existing legal remedies (guarantees) for the functioning of the system of checks and balances, the exercise of powers by the highest state authorities without observance of a clearly defined legal form usually creates instability of state-power relations, may lead to restrictions of rights, non-fulfillment of duties, violation of the rules of the current legislation by abuse or abuse of authority

77-89

Authors: Sakara N.Y.

In the article “the fundamental principles of civil procedure” and “ the principles of civil procedural law” are considered as synonyms. They are understood as normatively fixed requirements that reflect the values of civil procedural law, reproduce the standards of fair trial and determine the procedure of a trial. Such requirements should be pursued by the court and other participants of civil procedure because they have general, stable and imperative nature and perform regulatory and interpretative functions in relation to ordinary rules of civil procedural law. The possibility to classify the requirement about “reasonableness of the time of a trial” as an interdisciplinary principle of judicial procedure is called into question because the lack of a unified approach to its regulation. Taking into account the provisions of the current procedural legislation and the decisions of the European Court of Human Rights, the author proposes to interpret this requirement in three ways: 1) as a convention requirement arising from para. 1 art. 6 ECHR; 2) as a requirement for a general time of a trial, which constitutes an indicator of the effectiveness of protection of violated, unrecognized or disputed rights, freedoms and interests (p. 10 p. 3 art. 2 CPC); 3) as a requirement for the time limits of procedural actions in specific cases (art. 121 of the CPC). At the same time, as a requirement for a general time of a trial “the reasonableness of the time of a trial” is an evaluative concept. It cannot be understood as a fundamental principle of civil procedure. In its ontological nature, it is a legal axiom that reproduces the ideal model for the administration of justice and considered to be a tool for realization of the task of timely trial.

99-108

Authors: Ostapenko Y. I.

The article explores the concept-trend of the modern legislative process – «adaptation». Particular attention is paid in the article to the process of adaptation of legislation to more developed standards of legal regulation of economic relations, and also modifications of the corresponding process are characterized. Global legislative changes have been established in the context of adaptation processes in economic legislation, important aspects in the reform of the economic and legal mechanism are underlined. The processes of adaptation of domestic economic legislation to more perfect standards of economic regulation of developed countries, in particular the West, must be correlated with the real state of development of economic relations in Ukraine. In addition, he has to perform the regulatory-dynamic function of law, including economic, but at the same time can not be implemented designs that hang in the complete vacuum of social relations. Adaptation should become not only an element of the lawmaking process, but also an integral part of economic and legal policy, that is to lay the foundations of the process of institutionalization of mechanisms for the formation and implementation of algorithms for the application of legal means of state influence on the content, structure and dynamics of internal and external economic relations, macroeconomic properties of market equilibrium, appropriate correction of the content (achievement of consistency and compliance of the contents of the legal economic order of the country-adaptor. Therefore, all researches ting in commercial law should as part of goals include establishing feasibility of drawing certain foreign structures or mechanisms of their viability and prospects of the national legal system of coordinates.

119-126

Authors: Budarna V. О.

In the article analyzed crowdfunding as an innovative investment model. Singled out the subcategories of the crowdfunding that can exist in the system of these relations. And as a conclusion, noted that such a model of investment relations as crowdfunding is quite promising today in Ukraine. The socio-economic phenomenon of a special type of relations, known as crowdfunding, was researched. Certain types of crowdfunding have been identified and singled out, among which a number of features of investment-type relations are characteristic. It was concluded that the crowdfunding does not contradict the current model of investment policy of the state and the content of investment legislation of Ukraine. On this basis, it is argued that craftfunding requires a direct legal regulation in the current investment legislation of Ukraine. Attention was drawn to the need to delineate the crowdfunding, which has a philanthropic orientation from the investment landscape of the Crowdfunding. The article points out the expediency of borrowing the Scandinavian model of crowdfunding and the need for the introduction of local and regional investment projects that would provide the most crowding-up mechanism for their investment. Legislative differentiation of funds attraction on the kraudfanding basis as a mechanism of charity and as a mechanism of investment. (It is also important to further distribute investment custodian to commercial and one that is carried out for a social effect.) Stimulate the creation of local and regional investment projects, as potential investors of the Crowdfunding model are much more willing to provide funds for the development of their own city or oblast than on national projects. Creation of a professional intermediary institution, which would be designed to ensure the balance of interests between the parties, carried out an analysis of the market and the project itself, and the prospects for its implementation. Realize crudfangdom relations with the help of the current model of technology parks, since they are supported by the state, controlled by it, have legislative guarantees and tax privileges and a higher probability of achieving a positive result.

136-148

Authors: Omarov Anver

The article describes the economic situation of business development in Ukraine, revealed the factors that create obstacles to private sector development. The article argued the need of reformatting the state policy with the release of small businesses, as equal entities, given the above, it is proposed to change the approach to the formation of the provisions of the Development Strategy, highlighting separately as an object – small business. The means and mechanism of organizational and economic provision and regulation by the state are considered, the role and importance of deregulation are separately defined. Separately paid attention to assessing the impact of the fixed assets of the state on the development of small business, including legislatively fixed: providing investment, tax and other benefits, the provision of subsidies, compensation, targeted innovation and subsidies. Based on the analysis, the expediency of legislative complementation of the main means of state influence on the development of small business by “lending” and “business insurance” was suggested and argued, among which “microcredits” are separately singled out. In the article, the institutional environment for small entrepreneurship in Ukraine has been developed and proposed, namely the classification of these in three groups, thus dividing the entire set of public authorities and organizations that create a mechanism for implementing state policy in the small business by organizational economic powers, functions and competence. Identified significant shortcomings of enterprise development strategies, the ways of eliminating the absence of the distribution of powers in accordance with the competence of the authorized bodies, analyzed the “fatal” error under union coordination, implementation, and analysis of the implementation of the strategy by one government agency. Ways of improving and modernizing the powers and competence of the state authorities, legal mechanisms for the implementation of public policy, it is proposed to create a State Committee of Small Business and Regulatory Policy, would perform the function of the working body, providing high-quality implementation of the plan and the strategy of development of small business in the country. The creation of the Insurance Fund for Organizations and Associations was proposed, and proposals for changes to lending were put forward.

158-168

Authors: Kulchii I. M.

The author researched the legal regulation of agricultural exports and analyzed national agrarian legislation and EU legislation in this area. The legal basis for regulating the export of agricultural products to the European market is a significant regulatory and legal base, consisting both of national agricultural legislation and of EU legislation. It is proposed to classify the agrarian legislation of Ukraine in this area into the general legislation and the special legislation. The author proposes to differentiate the special legislation on the subjects and on the objects of legal relations in the sphere of export of agricultural products. The author refers to the first group of legal acts that define the legal status of subjects of agrarian legal relations that can carry out activities in the export of agricultural products of Ukraine. The second group consists of those national legal acts aimed at regulating the production, processing and marketing of certain types of agricultural products: products of plant origin; products of animal origin; organic agricultural products. Legislation regulating the import of agricultural products to the EU countries is divided into: general (EU legislation regulating the EU common agricultural policy; special (EU regulations, directives, decisions, recommendations and communications, which establish requirements for the production and processing of certain types of agricultural products). The author concluded that there is no comprehensive state agricultural policy in Ukraine in the area of access to international markets and promoting the export of agricultural products. It is proposed to adopt the draft Single Integrated Strategy and Action Plan for Agricultural and Rural Development for 2015–2020, which needs to be complemented by clear measures aimed at eliminating non-tariff restrictions on exports of agricultural products to EU countries.

179-188

Authors: Kharytonov S. О.

The article contains a complex analysis of the correlation between the notions of «military crime» and «the composition of a military offense». The author supports the position that the notion of «military crime» is specific to the generic concept of «crime», enshrined in art. 11 of the Criminal Code of Ukraine. In order to consider the notion of «war crime» it is necessary to conduct a comprehensive analysis of the composition of the military crime, the signs and elements of which have their imprint in the notion of «military crime». These legal categories are in close interconnection, complementing one another. The signs that are inherent in the composition of any military offense are equally in the concept of a «military crime», but if the elements of the crime are clearly grouped within the relevant element, then it is uncharacteristic for the notion of «military crime». The presence of a legislative definition of the concept of «military crime» and the scientific concept of «composition of military offense» makes it possible to correctly solve a number of practical issues of qualification of crimes, such as: demarcation, competition, aggregate, complicity and others. Undoubtedly, as the notion of a lower level, the notion of «military crime» is based on the general concept of «crime», is derived from it, therefore, having common signs of a crime, military crimes have their own specific features that distinguish them from other «non-military» crimes. The public danger of war crimes is characterized by high-ranking categories – military security of the state: a) the state of combat capability of the Armed Forces of Ukraine and other military formations; b) the ability to perform the task posed by the state; c) the protection of the country from possible military aggression. Any war crime undermines the combat capability of military units, which, in consequence, causes significant damage to it and, eventually, military security of the state.

200-210

Authors: Fomina T. H.

The author has studied the procedural status of a pledger within criminal proceedings and has formulated propositions to the Criminal Procedural Code of Ukraine in part of regulating the procedure for the application of personal surety. For this purpose, the author of the article has separately studied the issue of the procedure for involving a pledger. It has been indicated that the initiative on involving a pledger for criminal proceedings may be initiated by both a suspect, accused, on whom the issue of the application of a preventive measure is being decided, and by persons who wish to take the bail of a suspect, accused. Instead, an investigating judge, court may choose a preventive measure in the form of a personal surety only if a pledger agrees or his application for taking a bail of a suspect, accused. It has been stressed that the statutory requirements are the trust or special confidence of an investigating judge, court to a pledger. Trust and special confidence, above all, are the awareness of an investigating judge, court that a pledger can contribute to the achievement of the purpose of a preventive measure and the execution of the duties by a suspect, accused, and secondly, they are based on the special moral qualities of a pledger, his authority. It has been concluded that personal surety is a preventive measure far from perfect in terms of legal enforcement, since the legislator has not resolved a number of important issues. Consequently, it is necessary to improve the provisions of the Art. 180 of the Criminal Procedural Code of Ukraine, and secondly, to regulate the procedural status of a pledger by amending the Criminal Procedural Code of Ukraine with a separate norm.

22-33

Authors: Sydorenko O. O.

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

43-53

Authors: Kuleshov D. V.

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

65-79

Authors: Sakara Nataliia Yuriyivna

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

94-103

Authors: Tkachuk A.O.

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

116-127

Authors: Dovgusha M. P.

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

137-144

Authors: Ellina Yurchenko

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

154-165

Authors: Shulzhuk T. R.

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

175-184

Authors: Shostko O. Y.,

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

201-213

Authors: Komarova T. V.

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

223-228

Authors: Pamuji Kadar

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

17-25

Authors: Dreval Yu. D., Hotsuliak S. L.

The article considered the issue that Ukrainian statehood existed in conditions of total political instability. The lack of a Directorate’s clear vision of the prospects for development and a corresponding political program, as the headquarters of the UNR, has become a catalyst for political struggle. The search for the best state model lasted throughout the time of the Ukrainian Revolution of 1917–1921. At first (the beginning of the Ukrainian Central Rada’s work) there were discussed the forms of government that have been already tested in the then advanced countries, such as parliamentary and presidential republics. In conclusions it was indicated that Ukrainian politicians unanimously supported democratic values and parliamentary system at the initial stage of the revolution. Only after a while, under the influence of a number of domestic political and foreign policy factors, an alternative has grown, which, during the period of the Directory, got the character of a tough confrontation. However, even in complicated military-political conditions, it continued to defend the ideas of constitutionalism, parliamentarism and the division of branches of power.

35-43

Authors: Pyrozhenko O. S., Shkurko V. I.

Higher legal education is a necessary component of the legal profession, a guarantee of professional competence of the lawyer. It plays an important role in social development, the environment for the formation of lawyers of the new generation. The analysis of the content of the concept «higher legal education» revealed the existence of serious problems of legal regulation of this category, since the diversity of its interpretations significantly affects the possibility of citizens realizing their rights, in particular labor, which is closely linked to the presence / absence of a certain level of higher education. The current legislation does not contain a single definition of the term «higher legal education». It is mentioned in the Constitution of Ukraine, as well as in several laws of Ukraine. However, his definition in these documents is different, sometimes not very correct, and sometimes not at all. In this regard, some citizens are deprived of the opportunity to realize their constitutional rights, including the right to work. Thus, the absolute majority of regional bar councils refuse to accept documents and register information about assistant attorney to those who have received higher education at the first (bachelor) level of higher education instituted after the Law of Ukraine «On Higher Education» No. 1556-VII of 01.07.2014 entered into force. The above is related to the false interpretation of the notion of «higher legal education» contained in the Law of Ukraine «On Higher Education» No. 2984-III of 17.01.2002. This contradiction, in our opinion, is a disadvantage of lawmaking technique, which should be eliminated by introducing appropriate changes to the existing standard acts of legislation. The necessity of such adjustments, in our opinion, is justified because a clear delineation of qualifying requirements to the person who carries out professional activities regulated by special legislative acts, adds an element of certainty and will clear a guide for seekers of higher education. Summarizing, we note the inexpediency of defining the notion of higher legal education by the names of specialties. More reasonable and appropriate practices leading powers would be the recognition of higher legal education (within the meaning of the Constitution and laws of Ukraine, which contain this term), higher education gained on educational programs, which during the accreditation recognized as providing an education that meets the qualification requirements for the occupation of certain positions. In this case, special conditions of accreditation of such programs may be provided, in particular, taking into account the results of the unified state exam and evaluation programs involving members of the professional community. In the future, after the establishment of the State Register of Qualifications, the conformity of education with the existing requirements for candidates for certain positions can be achieved through the corresponding marks in the register, which will be done on the basis of accreditation of educational programs, which will be assigned these qualifications.

53-60

Authors: Lurye D. A.

The article explores the modern condition of the legal regulation of post-trial access to investigational treatment. The author has determined main arguments concerning the necessity of foreseeing such a right and the problematic issues that arise in case of its implementation. On the one hand, a subject can legitimately expect that s/he will continue to have access to beneficial treatment after the end of trial, for example, if it alleviates the symptoms of a chronic illness, depriving a trial subject from the beneficial post-trial access would defeat the basic principle of medical ethics. At the same time, this provision may have a large financial burden on the sponsor of the trial; it is difficult to control the occurrence of serious adverse reactions; providing post-trial access only to the subjects of the trial and denying others create disparity among patients. The particular attention is paid to international standards and experience of foreign countries in this field. The legal and regulatory acts of Ukraine do not have any provisions on post-trial access to investigational treatment. The main international ethical guidelines, such as Declaration of Helsinki, CIOMS/WHO Guidelines, contain such a right, but they have different formulations and volumes that only intensify professional discussions. The most common norm is as follows: «a responsibility of sponsor to supply details of the plan for treatment or care of subjects once their participation in the trial has ended», which, in contradistinction to the Ukrainian legislation, is not connected with the causing damage to the subject. The author also has researched a unique case of Brazil, where the post-trial drug access program must make the medication available and free of charge to the subjects of the research in the cases of concluding the trial or after the patients’ participation in the study. On this base, the author offered to provide in the legislation of Ukraine requirements to inform in advance subjects about the presence or absence of post-trial access and to evaluate these provisions by ethics committees before and at the end of all trials in order to determine its real need in each individual case. The scope of the right on post-trial access to investigational treatment must be reasonably weighed in order to avoid, on the one hand, becoming an excessive stimulus for the subjects, and, on the other hand, not leading to a situation where on such regulation conducting of clinical trials in the country will no longer be appropriate.

78-92

Authors: Klymosyuk A. S.

The subject of this article covers the ratio of diversion and terrorist act, which includes: 1) a comparative analysis of the Criminal Law provisions defined in the Article 113 and Article 258 of the Criminal Code of Ukraine; 2) study of competition issues of these norms and separation from a similar set of such crimes. It is substantiated that the difference in the elements of crimes provided defined in Article 113 and Article 258 of the Criminal Code of Ukraine, above all, consists in the discrepancy between their mandatory signs of the object of the crime, the objective and subjective elements of the crime. Therefore, with the possible coincidence of some legal features of these crime elements, one or more of such distinctive features may be crucial for separation between a diversion and a terrorist act. During the investigating of the punishability for these crimes, it was found that in some cases the actual infliction of harm by a s diversion causes the necessity for additional qualifications by Part 2 of Art. 115 or Part 3 of Art. 258 of the Criminal Code of Ukraine. It is proved that the norm of diversion can be competed with the norm of a terrorist act as a whole (Article 113 of the Criminal Code of Ukraine) and as part of the whole (Article 258 of the Criminal Code of Ukraine), and in such cases the preference in enforcement should be qualified as a diversion. Examples given in this article are an illustrations of an ideal and actual set of diversion e and terrorist act.

104-120

Authors: Kaluzhna O. M.

The main aim of the article is to encourage the reader to reflect on the advantages and disadvantages of a public expert monopoly in conducting forensic expertise. In such article the obvious advantages of conducting forensic expertise by public expert institutions are stated in order to get scientifically substantiated and based on modern data of science and technology practice of conducting forensic expertise. The practice includes developed network of public expert institutions in the regions, a wide range of forensic expertise being conducted, research departments of state expert institutions, system of advancement of forensic experts; system of development of new and improvement of existing expert methods; informational records and collections in the DNDEKTS and NDECTS system at the head offices of the NP in the regions and in the city of Kyiv; state financing and provision of technical tools and materials with expert research etc. At the same time, the disadvantages of such a model of the organization of judicial expert justice’s support are stated: the lack of competition among court experts; the abuse in the form of giving deliberately false conclusions to cover up someone’s misuse or concealing crimes; the limitation of the parties of the court proceedings in the dispositive right to provide evidences at one’s one discretion; the artificial limitation of possibilities to discover the circumstances of the proceedings (using of all possibilities to establish the truth in the case). It is concluded that the model of judicial expert support of legal proceedings in Ukraine, that is established by «judicial reform» (Law No. 2147-VIII in the wording that will come into force on March 18, 2018) is a milestone in its historical development, which certainly should be modified depending on its effectiveness and the demand of the society, public, professional and state institutions. So public forensic expert monopoly is not an ideal model of forensic expert support of justice because of corporate and political interests, corruption component, abuse of forensic experts etc. Therefore, it will undergo a review and transformation.

131-143

Authors: Yakoviyk Ivan Vasylovych, Okladna Marina Georgievna,Orlovskyy Roman Ruslanovich

The focus of this article is the research of the questions, related to the development of separatism in Europe. The prerequisites for the development of the separatist movement within the European integration are analysed, as well as the forms of its realization. The EU’s role in settling the separatist conflicts of the member states is explained. The author is proving the conclusion that in future, within the United Europe, the demands for self-determination will be reviewed by the European Union’s institutions more and more often. Those events will be happening on the background of the mounting tensions between the EU, its member states and their regions.

154-165

Authors: Usmanov Y. I.

The article is devoted to the actual topic of international mechanisms for the protection of the right to life in international and non-international armed conflicts. The increase in the number of armed conflicts in the world and, with them, violations of the right to life of the people, necessitates a generalization of the normative theory and practice of international bodies that promote and protect the fundamental right to life. That is why the article reveals, compares and generalizes the normative, theoretical and practical tools within the international mechanisms of protecting the right to life in conditions of military confrontation. The regulatory framework of the article is based on the IHL, in particular: the Geneva Conventions (1949) and the two Additional Protocols thereto, the Hague Conventions (1907), customary norms, etc., as well as international human rights instruments, in particular: the Universal Declaration of Human Rights (1948), The International Covenant on Civil and Political Rights (1966) and the two Optional Protocols thereto, and regional acts: the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the American Convention on Human Rights (1969), the African Charter on Human and Peoples’ Rights (1981), the Arab Charter on Human Rights (2008), etc. The most problematic issues in the article that arise during armed conflicts and which relate to the lawful use of force against warriors, the lawfulness of the deaths of civilians during an attack on military purposes (collateral damage), precautionary measures, which must be taken by States using lethal force, the obligation of States to investigate every death case, etc. will be considered in the light of the activities of the UN Human Rights Committee, the African Commission on Human and Peoples’ Rights, the InterAmerican Court of Human Rights and European Court of Human Rights, whose practice in this area is represented the most versatile, widely and thoroughly.

175-182

Authors: Nugroho Hibnu

Corruption becomes the greatest enemy most countries face including Indonesia. Commitment to eradicate corruption significantly increases yet it would be meaningless if it is not supported by adequate legislation to implement the law effectively. Reversal burden of proof essentially aims to facilitate law enforcers to seek and disclose assets a suspect owns allegedly as corruption crime. The principle of reversal burden of proof was originated from Anglo-Saxon countries and this still applies to certain cases such as bribery-related gratifications as Malaysia and Singapore implement. In Indonesia, provisions on the principle of reversal burden of proof have been long recognized even since 1960 on the first law on corruption crimes. Nevertheless, for more than a half of century, the provision on reversal burden of proof has never been implemented. It occurs since articles which govern the issues barely provide clear regulation. It only mentions the principle yet never issues an implemented regulation to support the principle. In regards to this, the research is aimed at investigating, seeking and analyzing the weaknesses in implementing the principle of reversal burden of proof in corruption crimes recently as well as discussing obstacles in law enforcement