PROBLEMS OF LEGALITY

18-36

Authors: Moskalenko O. M.

The article is dedicated to the study of the legal system, which is one of the basic theoretical concepts of the contemporary legal studies. The concept of legal system has been in focus of a number of studies in different legal disciplines, from the theory of law and state to classical international law. However, the multi-functional use of this concept as well as diverse approaches to its understanding from the perspective of different schools of legal thinking reaffirms the need for the continuation of the discussion as for the essence of this concept with the particular focus on the possibility to utilize this concept and the term with regards to the law of the European Union. The article provides the analysis of this concept from the perspective of three different scientific approaches: comparative legal studies, international law, and general theory of state and law. It refers to a diverse number of research papers, including both the works of classical scientists in the area of state and law and the innovative researchers of recent years. As the result of the analysis the article offers a number of conclusions. First of all, it reaffirms the idea of the potential possibility to use the concept of the legal system with regards to both national and international law, despite the differences existing between these systems. Second, the principal structural elements of the “legal system” concept are identical for both cases. These elements are law (or the system of law), legal practice, institutional and psychological components. Third, the provided analysis offers the ground for the determination of the essence of the theoretical concept “legal system” via the analysis of the four mentioned principal structural elements. In its turn, this provides theoretical basis for the analysis of other inter-state legal systems, which are different from both national and international law.

48-62

Authors: Savchyn M. V.

In this presentation essential criteria that delineate issues of politics and the political process and constitution as a means of restriction of power are revealed. These issues are resolved in constitutional law in the sphere of restriction of power, it is political in nature, and its freedom is the freedom of development of the individual as a integrate personality. The interaction between political institutions and public authorities is carried out in terms of human dignity, in particular the identity of the individual. This determines the constitutional construction of relations between parliament and constitutional justice, between individuals, the community and the government. Based on the evolution of the constitution as a social phenomenon, within the scope of the political lawyers are restraint is always based on legal continuity. The formation, reproduction and multiplication of legal inheritance in the form of certain legal documents is the product of politics as a certain process of communication between interested political actors, who are bound by law in the future, in particular acts of interpretation of law and legal doctrine. Democracy is based on the balance of interests of the majority and the minority. Differentiation in society is the basis for the principle of the majority, because it expresses its essence. The balance of interests in a democratic society must satisfy the criteria of public consensus: the majority cannot dictate its will to the minority, and the minority cannot impose its will on the majority. Interaction between political institutions and public authorities is carried out in terms of human dignity, in particular the identity of the individual. Implementation of the constitution's provisions in the course of socio-political debate, which is implemented through the formulation of legislation and the formation of a political agenda, which defines both the program of government activity and the implementation of various national and regional development programs. An important role here is to ensure a balance of interests and fundamental rights. Constitutional courts' self-restraint in dealing with issues of correlation of law and policy is a cautious approach to resolving issues of a political nature and political process. The issue of having the constitutional courts the power to review the constitutionality of constitutional laws becomes more acute. From the point of view of the entry into force of constitutional laws, their review by the constitutional courts is carried out in order to comply with the fundamental values and principles of law and the requirements of due constituent procedure.

75-90

Authors: Denisenko Marina Aleksandrovna, Maskaeva Natal’ja Gennad’evna

The article analyzes the provisions of the Paris Convention for the Protection of Industrial Property of 1883 and the legislation of the Republic of Belarus concerning unfair competition through direct discrediting. The civil remedies and liability that can be applied in case of the commission of the relevant offense are considered in detail. It is concluded that the Republic of Belarus fully abides by its relevant international obligations undertaken under the Paris Convention and that there is a number of gaps in Belarusian legislation, which negate the feasibility of the recourse for judicial protection in case of direct discrediting. Certain legislative amendments are proposed as well.

103-112

Authors: Kulchii I. M.

The article researches the international legislation and EU legislation in the field of protection of geographical indications of origin for agricultural products, analyzes the national legislation in this area, suggests ways and means of its improvement with the aim of implementation in the conditions of European integration. The author finds that one of the areas of adaptation of national legislation to EU legislation within the framework of quality policy is the protection of geographical indications of origin for agricultural products and foodstuffs. The concept of geographical indication, which according to EU legislation is considered in two categories: protected designation of origin, and protected geographical indication. Their common and distinctive features have been clarified. The article researches in detail the dual procedure for the registration of geographical indications of origin for agricultural products at the national and EU level in accordance with European legislation. The legislation of Ukraine in the field of legal protection of geographical indications is analyzed and the conclusion about its is non-conformity with European requirements in the part of the subject structure, state registration, specification, marking and legal protection. It is noted that the draft Law "On Amending Certain Legislative Acts of Ukraine on Improving the Legal Protection of Geographical Indications", which was adopted in the first reading, is currently being drafted. It is indicated on its positive aspects, in particular: the introduction of geographical indications of the State Register of Ukraine as well as requirements for product specification and labeling, which are important in the aspect of adaptation to EU requirements, however, also revealed a number of significant shortcomings. The author argues that the system of geographical indications for agricultural products is not formed, but its establishment is important for the development of rural areas, it is proposed the establishment of a number of legal, organizational and economic measures.

124-133

Authors: Shevchuk O. M.

The article based on the analysis of scientists' points of view formulated the author’s definition of the legal construction “administrative and legal regulation of state control over the circulation of narcotic drugs, psychotropic substances and precursors”, reveals its signs. It is proposed to interpret it as a set of administrative-legal forms, methods and tools by which a set of control measures is determined, using which the state influences the activities of subjects and objects in the sphere of legal trafficking of narcotic drugs, psychotropic substances and precursors in order to reduce their non-medical consumption, their illicit trafficking, as well as related offenses. In the implementation of the administrative and legal regulation of such state control, its mechanism is of particular importance. The concept of “the mechanism of administrative and legal regulation of state control over the circulation of narcotic drugs, psychotropic substances and precursors” is established, its elements are analyzed. It was found that the elements of such a mechanism should include administrative-legal norms of law, administrative-legal relations, acts of interpretation and the implementation of legal norms, legal consciousness and legal culture.

149-157

Authors: Veselov M. Yu.

Modern juvenile justice is a system of international legal foundations, scientific ideas and a set of concepts of influence on children, their social environment, state and public institutions for the prevention of unlawful behavior among minors, protection and assistance to children in conflict with or dangerous or harmful situation (conditions). Despite the fact that juvenile justice as a social and legal institution ensuring the rights and interests of the child is based on common goals and objectives, world practice includes several typical paradigms (theoretical and methodological models) and regulatory and institutional models for the functioning of juvenile justice. The goal of the research is to form a modern understanding of the classification of juvenile justice models as one of the institutions ensuring the rights, freedoms and interests of children. The article presents the classical system of paradigms (concepts) of juvenile justice: the rehabilitation paradigm, the punitive paradigm, the alternative or restorative paradigm. These paradigms are represented in existing models of juvenile justice, which are now operating in different countries of the world. Several types of classification of functional models of juvenile justice are presented for consideration. The division of juvenile justice systems on a global scale into Anglo-American, Continental, Scandinavian and Asian is analyzed. The study argues the position that the presented classification should be supplemented by another separate type - the transitional (transit) model of juvenile justice. As part of this model, it is proposed to further distinguish two subgroups: transit-administrative (Russia, Belarus, Azerbaijan, Tajikistan) and transit-judicial-centric (Ukraine, Kazakhstan, Georgia, Kyrgyzstan, etc.).

171-178

Authors: Bocharova K. A.

In today's world, there is a growing number of cruelty and violent manifestations, which harms the legitimate interests of the individual, the state and society. Vandalism and the crimes connected with it are one of such manifestations. With the development of society and the emergence of modern human capabilities, acts of vandalism are changing and gaining new forms. The necessity for isolation and consideration of vandalism and connected crimes is due to the fact that vandals committed in public places acquire a special anti-social color and negative social significance. The purpose of the article is to prove the necessity of legislative regulation of vandalism as a criminal act, as well as to bring arguments about the importance of introducing amendments to the Criminal Code of Ukraine. At the moment, in the domestic legislation there is no legal definition of the concept of vandalism, which leads to a mixed understanding of the range of acts connected by its features, and also whether there are actions related to vandalism, criminal. The importance of criminalizing vandalism is due to the fact that the number of acts of vandalism in Ukraine is increasing year by year and its newly modified forms are constantly appearing. Vandalism is a form of aggressive unlawful behavior that manifests itself in deliberate acts, the consequence of which is causing harm to any property, religious, cultural or spiritual values, objects of improvement of settlements, transport infrastructure, committed with cynicism and / or obvious disrespect for society in a public place. The criminal law manifestations of vandalism in Ukraine, that is, to such behavior, which manifests this phenomenon in the objective reality, include acts stipulated by various sections of the Special Part of the Criminal Code of Ukraine which are not singled out in a separate article or part thereof. In addition, the activity associated with the unauthorized graffiti application is generally uncriminalized. According to the statistics of the General Prosecutor’s Office of Ukraine on the state of crime and the results of the prosecutorial and investigative activities, each year it accounts for 1-1.5% more crimes connected with vandalism. At the same time, in connection with the lack of a normative basis for combining these acts into a single set of crimes, one can assume that it is expedient to commit a crime with a vandal purpose to recognize the circumstances which aggravates the punishment. This conclusion is explained by the fact that there is now an urgent need for legislative definition of vandalism, the elimination of difficulties in qualifying such acts, the display in official statistical reporting and the assignment of guilty to just and proportionate punishment. A crime with a vandal purpose will be understood as constituting the subjective part of the crime associated with the realization of the desire to cause damage to any property, religious, cultural or spiritual values, objects of improvement of human settlements, transport infrastructure, etc. located in a public place. , and for the sake of achieving such a goal, the person performs a socially dangerous act. The proposed changes to Criminal law will be an important step in the criminalization of acts related to vandalism, the inclusion of these unlawful actions in official statistical reporting in order to analyze their dynamics, involving the investigated manifestation in criminological problems that require scientific study, analysis of causes and conditions its existence, as well as the improvement of existing ones.

192-202

Authors: Korcheva T. V.

It is indicated a new participant in criminal proceedings in Part 1 of Art. 3, paragraph 161 the CPC of Ukraine – another person whose rights or legitimate interests are limited during the pre-trial investigation (hereinafter – another person). The analysis of recent research and publications. Problems concerning the protection of the personsrights and freedoms participating in criminal proceedings, determination of their procedural status were the subject of research in the works I. V. Glowyk, Yu. M. Grosheviy, V. O. Konovalova, O.V. Kaplina, V. I. Mariniv, M. A. Markush, M. G. Motorygina, O. Yu. Tatarov, A. R. Tumanyants, Yu. A. Khomatov, O. H. Shylo, O. G. Yanovsky and others. However, the latest developments on the subject matter require a scientific study. The CPC of Ukraine does not specify who can be another person, and there is no clear regulatory and consolidation of the procedural status of this person. According to personal considerations, the circle of other persons is not limited in a criminal proceeding by the legislator, there should be only the basis – the exercise of the procedural actions according to the CPC of Ukraine regarding to the person (including concerning her property), as well as the possibility of limiting her rights or legitimate interests. It may be investigated (search) actions with the participation of another person. This raises the question of the procedural rights existence and responsibilities. It is indicated that the means of protecting the rights or legitimate interests of another person include the possibility of making a petition. There is reason to believe that there should be an extended circle of subject matter concerning to another person. As for the right to receive a professional legal assistance, this is the law that the legislator envisages. The investigation of problematic issues concerning the legislative regulation of the another person procedural status, as well as author's suggestions on this issue, will serve to eliminate the gaps existing in the legislation.

216-225

Authors: Myroshnichenko T. N.

There were established the general principles of criminal proceedings for the first time at the level of a separate structural unit (Chapter 2) by the Criminal Procedural Code of Ukraine, 2012 (hereinafter - CPC), including the principle of respect for human dignity (Article 11 of the CPC). The normative content of this principle is to prohibit the use of unlawful compulsion during a criminal proceeding. Therefore, the fulfillment of the requirements of the investigative principle as a legal provision of a higher degree of normativity must be maintained in a procedural and organizational manner by the state in the person of the leading process. On the basis of the normative content analysis of of the respect for human dignity principle, they are distinguished three of its constituent elements: security, prohibition and protection. The substantive side of the security element is established by law procedures for the conduct of procedural actions that exclude contempt for human dignity, as well as the procedural provisions of the law on the mandatory justification of court decisions only on the evidence directly investigated in court. The organizational aspect of the basis security element includes the actions of authorized persons for proper control of the persons physical condition and the provision of quality services during the pre-trial investigation. The arguments in favor of refusing the simplified criminal procedure procedures introduced in the criminal process of Ukraine (reduced trial, simplified proceedings on criminal misconduct) are presented as not satisfying the proper implementation of the principles of criminal proceedings. On the basis of the analysis of the European Court of Human Rights case law, the normative content of the prohibition element of the respect for human dignity principle, in particular, the specific characteristics of ill-treatment, has been researched; defined requirements for evidence of ill-treatment. The normative content of the protective element of the respect for human dignity is principle of investigated in view of the state of the existing criminal procedural legislation on the legal status of the participants in the criminal proceedings. According to its results, authors' suggestions are made regarding the improvement of the domestic procedural legislation of the relevant direction.

234-246

Authors: Shevchuk V. M.

The author discusses the debatable problems of the theory and methodology of criminalistics, analyzes the trends and prospects for its development. It is determined that the formation and modern development of criminalistics as an independent science is naturally associated with arise in the sphere of fight against crime, functions and objectives of this science, and naturally associated with the formation of a system of scientific methods. It is impossible to ensure the further development of forensic science in developing the effectiveness of organizaciono-tactical counter crime and not improving the theoretical and methodological basis of criminalistics. Recently, however, in the criminalistics literature there are opposing opinions and approaches of occurrence of the different nature of the critical judgments to the traditional theory and methodology of criminalistics, as well as criticism of the concept of general theory of criminalistics. It is increasingly possible to meet the approval of certain scientists about the so-called-my idea of "crisis" in criminalistics and its methodological problems. Proves that it is not "ideas crisis", and the idea of objective and the further development of criminalistics should dominate in forensic investigations in the light of contemporary state of development of science, traditions of criminalistics, which would become the foundation of the ideology of criminalistics thinking and identify promising areas for further research. Further research requires integrative function of criminalistics, applying systemic-structural activity, functional, process-oriented approaches, strengthening the practical orientation of forensic research that will raise modern science to a qualitatively new level of development. Is determined that the subject matter of the analysis of the current state of the trends and prospects of development of criminalistics, its theoretical and methodological foundations is the most important areas of forensic doctrine. Scientific approaches and proposals for solving the identified discussion problems of the theory and methodology of criminalistics science are formulated.

256-268

Authors: Ostafiichuk L. A.

The article is devoted to the principles of the institute dispute settlement involving judges, which causes concern among theorists and practitioners as novel procedural law. Available in the Unified State Register of judgments practice of settling a dispute with the judge shows only isolated cases of successful completion of the litigation settlement agreement. This means that the scientific search for solutions to problems 'solution to the dispute with judges' basic research through specific and ethical principles of this institution is appropriate. According to the research results of the Institute of Dispute Settlement with the participation of a judge, the author shares the basic principles of judging by the criterion of the possibility or impossibility of their application in the dispute settlement procedure. In particular, the principles for which there is no doubt of the need for their use in settling disputes involving judges are: 1) the rule of law; 2) respect for honor and dignity, the equality of all participants in a trial before the law and court; 3) dispositiveness; 4) proportionality; 5) the bindingness of the judgment; 6) the reasonableness of the terms of consideration of the case by the court. Principles that cannot be applied to the settlement of a dispute involving a judge are: 1) ensuring the right to review the case; 2) ensuring the right to appeal against a court decision in cases established by law. The principles that can be applied in the dispute settlement procedures of the fate of some conventions are: 1) competitiveness of the parties; 2) publicity and openness of the trial and its full fixation by technical means; 3) the principle of inadmissibility of abuse of procedural rights; 4) the principle of reimbursement of the costs of the party in favor of which the judgment was rendered. Also, summarizing the results of existing studies, the author generated a list of additional principles to be applied in resolving a dispute with the judge: 1) voluntary participation of the parties in the procedure; 2) confidentiality; 3) arbitration; 4) neutrality and impartiality of the mediator; 5) flexibility of procedure; 6) non-confrontational and informal procedure for conducting the procedure; 7) personal freedom; 8) cooperation. The author supplemented the list on an equitable basis, which connects by a group of judges ethical principles when applying the dispute settlement procedure. The ethical principles of dispute settlement involving judges, the author attributes: impartiality, diligence, tact, politeness, patience and respect, which are a set of moral rules of judicial conduct by which to evaluate its performance in terms of values such as fairness, integrity, dignity and humanity. According to the results of the study, the author proposed to supplement the list of principles (principles) of justice by the principle of «facilitating dispute settlement», that would force judges to actively promote the parties to the settlement of the dispute before the trial on the merits and judicial authorities to develop appropriate methods and equipment costs.