PROBLEMS OF LEGALITY

8-17

Authors: Kozachenko A. I.

The article analyzes the supreme bodies of state power under the Constitution of Pylyp Orlyk of 1710 and the Constitution of Poland of 1791 concerning the application of the principle of separation of state power into legislative, executive and judicial braches. The principle of separation of state power was introduced in these constitutions which were based on the own state and legal experience and ideas of the Western European political and legal thought of the Age of Enlightenment. In practice of the European constitutionalism, the Constitution of Pylyp Orlik of 1710 was the first attempt to adopt a constitution providing separation of state power into three branches (legislative, executive and judicial) as well as a system of checks and balances. Introducing the state power mechanism was aimed at the attempts of Cossack officers to increase the efficiency of state power and prevent usurpation of power by both a hetman and particular groups of Cossack officers. The Polish Constitution of 1791 was based on the idea of rule of the people, which is the only source of power, and the idea of separation of state power into three branches: legislative, executive and judicial. The legislature – the Seim, the executive power – the King and Government and the judiciary – local and higher courts are autonomous towards each other. None of the public powers could assign another body’s authorities. The mechanism of the system of checks and balances operated through parliamentary bicameralism, the Government formation by the King and Seim, participation of the King in the Government, the Seim deputies did not have the right to hold positions in executive bodies, different terms of authorities of the legislative, executive and judicial bodies. Such a mechanism was intended to prevent the usurpation of power by a single body or person and, most importantly, to improve the effectiveness of the state mechanism in order to withdraw the country from the political crisis and strengthen the Polish statehood. Constituting the separation of state power in the Ukrainian and Polish Constitutions of the eighteenth century was aimed at improving the state mechanism, preventing the possibility of usurpation of power within the country, increasing the effectiveness of the state mechanism in order to withdraw the country from the political crisis.

33-44

Authors: Servetnik A. G.

In the article, on the basis of the analysis of doctrinal sources and materials of the judicial practice, are considered issues of protection of debtors’ interests in notarial legal relations in relation to executing inscription execution. A characteristic is given to the recognition of the executive inscription as not being enforceable as a method of protecting the debtor’s rights and interests. The peculiarities of consideration by the courts of the defined category of cases are analyzed. The most typical mistakes of notaries, which become the basis for solving cases in favor of debtors, are revealed. Thus, the recognition of the executive inscription of the notary as not being enforced is a separate way of judicial protection of the rights of the debtor in cases of its commission contrary to the requirements of the law, in the presence of a dispute between the debtor and the collector. The relevant protection is carried out in accordance with the rules of civil or economic proceedings, in the procedure of legal proceedings. It should be emphasized separately that the satisfaction of the debtor’s claim with the subsequent recognition of the executive inscription as not being enforced does not deprive the taxpayer of the right to collect the debt in court, but merely states that it is impossible to protect his violated rights notarially. An analysis of court case studies by the courts of this category of cases shows that the most common reasons for satisfaction of debtors’ claims are: execution of executive inscriptions in the absence of the necessary documents envisaged by the List; execution of an executive inscription in the event of a dispute over arrears that was or is being considered in court; execution of an executive inscription in case of missed application of time limits for making a claim, etc. This tendency necessitates paying special attention to typical mistakes of notaries in the execution of executive inscriptions at the level of the guidance clarifications of the Ministry of Justice of Ukraine and the higher courts. The latter, according to our opinion, will minimize the number of court cases on the recognition of executive writings as non-enforceable and will promote the unity of notarial practice.

60-70

Authors: Kosinova K. S.

The present article is concerned with analysis of outsourcing relationships, which are complicated by the acquisition of corporate rights over the outsourcer for assigning relations of intended, controlled and long-term nature. The author performed analysis the distribution of outsourcing relationships depending on the way of organization of economic activity and the selection of such types of it, both onsite and offsite. The analysis of the legislation of Ukraine regulating the activities of holding companies in Ukraine is made in order to analyze and highlight the specific features of outsourcing relations from the point of view of the corporate aspect. In addition, the author analyzed the features by which it is necessary to distinguish offshore outsourcing from internal offshoring. The author investigates the positive and negative aspects that may be encountered by the customer company when using internal offshoring in their economic activities. The author made an analysis and comparative characteristics of other cases of application of outsourcing relations based on corporate relations, namely in the process of economic activity of associated enterprises of a simple and decisive dependence, and also their significant differences are established. The so-called hybrid type of outsourcing relationship, which occurs in the event of outsourcing relationship based on the contract, which are subsequently reinforced by the corporate aspect and leads to the emergence of a legal relationship that complements the fiduciary nature, is highlighted. Among other things, the author has established and analyzed the economic and legal policy of the state in the direction of encouraging outsourcing relations arising both on a corporate and on a contractual basis, and also noted the importance of developing appro-priate government policy to solve macroeconomic problems. Such problems are, for example, employment, capacity utilization rate, as well as technology level increase of production base. The necessity of legislative acts drafting in order to influence on various aspects of outsourcing relations has been established.

81-92

Authors: Inshyn M. I., Bagriy V. A.

The current state of implementation of the principle of legality in labor relations and the practice of its application does not fully correspond to the constant changes in the policy of the state, its economy, society, etc. As a result, the implementation of the principle of legality in labor relations is characterized by the presence of numerous problems, that are regularly pointed out by scientists in their writings. The most appropriate way of solving the problems of implementing the principle of legality in labor relations is the adoption of the new Labor Code of Ukraine. However, it has remained as the project for the last few years, and it is difficult to predict the immediate prospects for its adoption at this time. Therefore, the relevance of research into the implementation of the principle of legality in labor relations is that, while the new Labor Code of Ukraine has not yet been adopted, the search for alternative ways of their solution is necessary. In this article argued propositions of solving problems of the implementation of the principle of legality in labor relations are analyzed. First and foremost, their availability is due to the obsolete version of the current Code of Labor Laws of Ukraine. Given the rapid development of public relations, changes in the policy of the state, its economy, society, etc., it does not meet the requirements of time, because a large number of new types of activities that have arisen over the past decades are not provided by this Law in general. Papers and labor legislation in the context of disclosing the content of this problem were researched, and it has been established that ensuring legality in labor relations is complicated in conditions where such legal relationships are not provided for by current labor legislation. In addition, the norms of this normative legal act are vague regulate the labor relations of different categories of employees - it is explored that constitutional norms regarding equal access to work, as well as the prevention of discrimination in the field of labor, are not always carried out in labor relations. Therefore, in this article the advantages of the draft Labor Code of Ukraine regarding the implementation of the principle of legality in labor relations are outlined, as well as ways of solving main problems in this area.

100-108

Authors: Sharapova S. V.

The problem of the non-exhaustive use of land, the restoration of their qualitative indicators, the reproduction of natural resources in one way or another were considered in the writings of scientists, but the essence and understanding of the concept of non-exhaustive use of land was not analyzed. The article emphasizes that current land and environmental legislation widely uses the phrase “non-exhaustive use”, but its legal content is not disclosed at all. In addition, the term “non-exhaustive use” is used in national legislation without filling it with any content. The article emphasizes that the term “exhausting use” is associated with such categories as: reduction of quantitative and qualitative indicators in the use of land and other natural resources, reduction of land productivity, loss of soil fertility, land use in a way that impairs their natural quality, etc. Thus, “non-exhaustive use” should be aimed primarily at the preservation and restoration of both land and other natural resources. The article is devoted to the research of topical issues concerning the definition of the non-exhaustive use of land and the peculiarities of such use. The article defines the need for legislative consolidation of such concepts as “non-exhaustive use”, “rational use”, “restoration”, “reproduction”, which leads to the emergence of legal gaps in the mechanism of regulation of land relations. The author of the article emphasizes that non-exhaustive use of land is a use which is connected, first of all, with the preservation of a qualitative state of land. Non-exhaustive use of land resources provides sustainable agricultural production, forestry and soil productivity. It is proposed to consider non-exhaustive use of land as a use (mode of use), which preserves the qualitative properties of land and qualitative and quantitative indicators of other natural resources, inextricably linked with the land.

120-137

Authors: Pūraitė Aurelija, Šilinskė Neringa

The authors of the paper ‘weight’ advantages and threat to privacy caused by the usage of unmanned aerial vehicles (drones) and dashboard cameras. By analysing and comparing legal regulation of two gerographically, historically and culturally close countries (Latvia and Lithuania) they indicate differences of regulation of privacy, problematic aspects of their current national regulation on the usage of technologies in-topic and privacy protection and suggest possible solutions to the legal shortcomings found.

153-161

Authors: Filippov S. O.

The article substantiates the victimological approach to the problem of domestic violence prevention. I. The system of concepts to describe the phenomenon of victimity (also referred to as “victimhood”) has been specified. The central concept of the system: victim-like behavior of the person who has suffered from domestic violence is an integral feature of personality, characterized by low self-esteem, disproportionately critical self-attitude; increased level of anxiety; low ability to overcome external pressure; a noticeable helplessness-focused mindset; behavioral dispositions in family relationships, guided by victim-like stereotypes. Other definitions: 1. Victimity - physical, psychological, moral and social features and characteristics of a person that have transformed or potentially lead to transformation of such person into a victim; 1.1. Personality victimity is a specific personal construct, realized in the guidelines and attributes of victim’s personality; 1.2. General victimity depends on the social and role characteristics that transform a person into a victim; 2. Victim propensity is a set of features stipulated by social, psychological and other reasons that contribute to non-adaptive reaction style of the subject and lead to negative consequences for him/her, which consists in transforming a person into a victim. 3. Victimization - the process of victimity realization in dynamics; 4. Victim-like behavior - deviation from the rules of dangerous behavior, implemented in the aggregate of social, psychological and moral manifestations of a personality, leading to the victim‘s role; 5. Victimogenic factors (causes) - objective circumstances formed directly before or during commission of an offense and not connected with victimity of a sufferer or his/her behavior. A conclusion has been made about the expansion of the meaning of victim-like behavior in domestic violence situations, set in the Law "On domestic violence prevention and combating" compared with the definition given in the corresponding Law that had been in force earlier. II. The assumption that the effectiveness of victimology is in direct correlation with the effective application of primarily psychological methods has been substantiated. ІІІ. The comparison of scientific approaches to the study of the rates and causes of victimization among women affected by domestic violence (namely: socio-cultural approach, systemic family approach and individual-psychological approach) has been presented. IV. The content of the main types of victimity - person-based and role-based (general) ones - has been specified. The opinion on the effectiveness of the person-based type of victimity correction has been expressed. V. The issue of choosing the ways and methods of de-vitmization is put into dependence on the type of person who had suffered from domestic violence. VІ. The conclusion has been made of the applicability of the new direction of research – so called “riskology” (risk analysis) - in victimological researches to identify the risk groups. VIІ. A suggestion has been made to investigate victimogenic factors as an element of the domestic violence determination system. VIIІ. It has been proposed to carry out the victimological countermeasures through the most accessible channels: social network groups, a purposeful influence on young women made by the members of their reference groups. It has been emphasized that victimity is subject to correction, resulting in de-victimization of (potential) victims of domestic violence.

179-189

Authors: Nwocha Matthew Enya

This paper has discussed the various kinds and nature of international treaties as well as their enforcement methods. It has raised and examined Nigerian attitude towards implementation of international treaties particularly by its courts. It has equally made the case that Nigerian courts should be more conscious of the need to enforce international treaties to which Nigeria is a signatory including those that Nigeria in under obligation as a member of the international community to implement within its territorial jurisdiction.