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.