Suchergebnisse

The analysis of the relationship between law and policy is based on current legal theories, which build their models on the basis of the interaction of these two phenomena as in the process of state formation, so in the management of the state and the civil society. Legal theories correlate with the constitutional process in Ukraine, which gives reason to speak about the growing of the influence of political mechanisms on national legislation, the state, society and citizens' justice. This raises the question of the relation of the archetypes of legal culture with the direct political and legal experience of the nation-state, which over time is crystallized into theoretical doctrines and the corresponding political and legal practice of their implementation. Legal theories, as well as the positions of national scholars regarding the law and politics, also did not go beyond the definitions of the influence of national factors on the interaction of law and policy. The autonomous model (legal positivism), the insertion model (natural law theory), and the intersection model (American and Scandinavian legal realism) always had a common field from which different (in our case Ukrainian) national systems of law development ware sprouted. In this field law and politics are two (to a greater or lesser extent) different phenomena that interact with one another (with lesser or greater frequency) in the light of national interests and what the social sciences call the «spirit of the nation». In a transitional period, the positioning of the law in Ukraine is too closely linked to the political realities and interests of the political elites, which in most cases are still very far from the generally accepted principles of law. This is also the case today, in particular during the discussion and adoption of the bills on amendments to the Constitution of Ukraine proposed by the President in August 2019. It is clear that the issues of interaction of the law (law) and politics in Ukrainian realities are at the stage of their ...

The article deals with the correlation between the European Union law and international law. Constant participation of the European Union and its members in international organizations gave a rise to the need for establishment of interrelation between the sources of international law particularly international agreements and customs and sources of European Union law such as regulating agreements and acts of the EU institutions as well as necessity to identify which norms should be applied in a certain case and which hierarchical connections exist in these sources. This issue was research by numerous Ukrainian and foreign scholars such as T.V. Komarova, O.V. Plotnikov, K. Zigler, I.I. Maryniv, R. Jennigs, K. Tomushat and others. But unlike scientific research EU agreements do not have any provisions which would identify the type of relations between EU law and international law. It is also necessary to note that the only subject which position is important in this sphere is EU Court. In order to answer the mentioned questions decisions of the EU Court which had an impact on the formation of a new law and order on international level such as the one of the European Union (for example decision in case Van Gend en Loos) and decision of the Court which established fundamental positions regarding correlation of EU law and international law (for example in case Kadi v Council and Commission) were researched into. Provisions of EU regulating agreements related to international agreements and their place in the system of norms of the European Union were analyzed. To see the procedure of applying customary law in European law case law of the EU Court was researched. The article provides modern position of the EU Court regarding interaction between European and international law.

The article researches development of trust property institute in continental law states and investigates possible development of national legislation in this sphere. The article also characterizes modern state of trust property in Ukraine and proposed models of its improvement. In all researched continental law states it is possible to trace personal way of development of trust property institute as well as a special mean of trust implementation. Approaches of foreign legislators distinguish and can be seen in implementation of single-level and two-level changes. The first one is ratification of the Hague Trust Convention (Italy) as well as enshrining of its own trust like constructions (France, Germany). Two-level changes are represented by first Ratification of the Hague Trust Convention and then adoption of special acts to regulate legislative collisions in regulation of trust relations (Switzerland). The article has also researched prospects in development of Ukrainian national legislation. Draft laws which are registered in the Verkhovna Rada of Ukraine and consider trust property as one more way to ensure performance of duties along with other ones provided for by p. 1 of Art. 546 of the Civil Code of Ukraine such as forfeit, bailment, guarantee, collateral/pledge, retention, deposit (down payment) have been investigated. Reasons for enlarging legislation on trust relations through ratification of conventions and creation of a wide legal regulation of the researched sphere have been provided.

The article is devoted to the study of the phenomenon of «abuse of rights» in terms of its negative manifestation in different legal systems. In order to clarify the legal nature and content of the abuse of law, the question of the relationship between lawful and wrongful conduct was analyzed. Based on the study of doctrinal sources on this issue, ways to overcome the abuse of rights have been identified at the international and regional levels. The monitoring of foreign and national legislation in the article led to the conclusion that abuse of law is a phenomenon that permeates all branches of law and all groups of legal relations. The implementation of knowledge and legal traditions of international and domestic regulation of this category makes it possible to develop new ways to combat abuse of law at the social and legal levels. In our opinion, the legal significance of regulations aimed at counteracting the phenomenon of abuse of rights at the regional level in domestic law is significantly underestimated. The principle of inadmissibility of abuse of rights does not have its own stable logical theoretical construction, including at the constitutional and legal level, which indicates the need to enshrine it in a separate provision of the Constitution of Ukraine. At the same time, it should be recognized that effective counteraction to abuse of rights at the legislative level should be carried out both at the level of general legal principles and at the level of special industry regulations and norms.

The article deals with the issue of the conflicts of laws in international private law. It has been found out that each state has its own legal regulation of the relations which leads to conflicts of material norms of various states and complicates legal regulation of international relationships. The law of the states has many differences in regulation of various relations which provides for application of a connecting factor as one of the ways to solve the problem. It has been proved that international private law has a significant role in regulation of relations with a foreign element. As for international private law which norms are formed independently by each state, compliance with treaty obligations as well as rules and principles of international law by each state is significant to each state. At the same time, codification of international private law is the main way for systematization and legislative implementation of conflict of laws, material and procedural provisions designated for regulation of private relations with foreign element. Qualification of legal definitions which are applied in formulation of the rule of the conflict of laws is a burning issue as well. It has been established that the procedure for qualification in international private law should identify the model of relations and consists of three stages which are: interpretation of the rule; analysis of relations; comparison of the rule and relations. It has been clarified that the situation of a mobile conflict and the issue of acceptance or failure to accept remission and remission to the law of the third state relate to the issue regarding application of the rule of the conflict of laws in international private law. We think that the first priority task is to bring national laws on international private law in compliance with modern conditions of international civil and trade turnover. For the future development it is necessary to introduce a single legislative act which will take into account all these issues and the mechanism ...

At the present stage of state development in Ukraine, the democratization of all spheres of public life encompasses both public administration and local self-government, all manifestations of public authority. It is implemented through the development of various institutes, which include the institute of legal form of local self-government. Once in Ukraine there was only one such form (except for self-government in Kyiv - the capital of the state), now there are several. This requires studying both existing and possibly developing new promising forms. This is an important and urgent task for researchers.The purpose of the article is to compare how the concept of "organizational and legal form" is defined and applied in municipal law and in civil law, and to formulate proposals for the implementation of the reception of the provisions of the doctrine of civil law to municipal legal development.Problems of organizational and legal forms of local self-government were investigated, including, by S.M. Latyshev. The author uses his thesis to compare with those, created by the specialists in private law. His approach is one of the most fundamental in terms of defining the concept of "organizational and legal form of local self-government", since he proposed two definitions - broad and narrow.In particular, S.M. Latyshev said:"In the broad sense, the organizational forms through which local self-government is exercised include: forms of direct democracy, local self-government bodies, territorial public self-government.In the narrow sense, the organizational forms of local self-government should be understood as the activities of various municipal bodies, endowed with their own powers to deal with local issues and delegated to them by the state».Generally, the concept of "organizational and legal form" is actively used both in public law (mainly by municipal law professionals) and in private law (mainly by civil law professionals). In the article, the author analyzes what developments of civilians it is expedient to apply for further improvement of the doctrinal support of the institute of organizational and legal form of local self-government, at the same time proposing to name it "municipal organizational and legal form.Key words: local self-government, municipal administration, local self-government bodies, organization of local self-government, organizational and legal form, municipal organizational and legal form. ; Метою статті є здійснення порівняння того, як поняття «організаційно-правова форма» визначається та засто¬совується у муніципальному праві та у цивільному праві, та формулювання пропозицій щодо здійснення рецепції положень доктрини цивільного права до муніципально-правових розробок.На сучасному етапі державного розвитку в Україні демократизація усіх сфер державного життя охоплює як державне управління, так і місцеве самоврядування, тобто усі прояви публічної влади. Важливим під час їх подальшої демократизації є доктринальне забезпечення цих процесів. Воно здійснюється шляхом розробки різ¬номанітних інститутів, до числа яких належить і інститут організаційно-правової форми місцевого самоврядуван¬ня. Колись в Україні була лише єдина така форма (якщо не враховувати самоврядування у місті Києві - столиці держави), зараз їх вже кілька. Це потребує як вивчення наявних, так і, ймовірно, розробку нових перспективних форм. Це є важливим та актуальним завданням для дослідників.Про поняття організаційно-правової форми у муніципально-правових дослідженнях писали такі автори, як Н.В. Мішина, О.В. Чапля та інші. Однак у своїх публікаціях вони не проводили порівнянь з тим, як це поняття розуміють не фахівці з публічного, а фахівці з приватного права, передусім з цивільного. Спроба заповнити цю прогалину, яка існує в українській юридичній літературі, і є метою нашого дослідження.Узагальнено, що поняття «організаційно-правова форма» активно застосовується як у публічному праві (пере¬важно фахівцями з муніципального права), так і у приватному праві (переважно фахівцями з цивільного права). У статті автор аналізує, які саме розробки вчених-цивілістів доцільно застосувати для подальшого удосконалення доктринального забезпечення інституту організаційно-правової форми місцевого самоврядування, водночас про¬понуючи іменувати її «муніципальною організаційно-правовою формою». Перспективи подальших досліджень у цьому напрямі полягають у тому, щоб сформулювати поняття муніципальної організаційно-правової форми, визначити її сутність та навести пропозиції щодо структури різних муніципальних організаційно-правових форм.

The article discloses the formation, development and modern state of private international law in the European Union. The concept of "European private international law", including an analysis of the term in a narrow, wide and broadest sense is revealed in the article. The author analyses three main stages in the development of the private international law in the EU, in particular: formation (1957 ‒ 1999); active development ‒ after the entry into force of the Amsterdam Treaty (1999 ‒ 2009); modern period ‒ after the entry into force of the Lisbon Treaty (2009 ‒ present). This article examines the limits of EU legislation as the source of a single law and highlights the difficulties associated with projects on the codification of private law in the EU. Such an approach may be appropriate in the current state of EU integration if it is limited by the rules of binding contract law and the provisions of private international law. Further harmonization of private law in Europe also requires significant changes in the institutional structure for the creation of uniform rules and the development of new methods of regulation. There are three features of the development of the private international law in the EU: 1) the gradual transition from internationalization to Europeanization; 2) evolution to reduce the "flexibility" of conflict regulation of contractual relations through greater certainty in application; 3) if in 1999 the international convention was the source of unification of the private international law, then after this date the regulation becomes the standard source of unification. Private international law in the EU can be defined as the interconnection and interaction between the systems of national law of the EU Member States and the system of uniform (unified) legal norms aimed at regulating private legal relations with a foreign element within the EU. European private international law can be seen in a narrow sense (conflict of law), broad sense (covers conflict and conflict law) and the broadest ...

One of the most important (and top-priority for solving) reasons for the insufficient effectiveness of international law in the fight against terrorism is the lack of a universal international legal definition of terrorism (hereinafter referred to as the definition of terrorism). The article outlines the problems of adopting the definition of terrorism; revealed some negative consequences of the absence of a definition of terrorism in international law. It is pointed out that in order to accept the definition of terrorism, it is necessary to identify the characteristics and specific features of terrorism that distinguish it from other types of offenses and which (characteristics and features) could be used as a basis for defining elements of terrorism as well as the basis for the definition of terrorism. We agree that in the context we should focus on the following recognized in the doctrine essential characteristics of terrorist methods of action: violent basis of action; political motivation and goal setting; use of intimidation as a tool to achieve the goal; intent to cause innocent casualties and adequate destruction. It is concluded that terrorism is an international crime. We agree with the positions of experts according to which the prohibition of terrorism is a norm of general international law in the form of customary international law. It points to the need to adopt a norm in positive international law that would clearly state that violating the prohibition of terrorism is an international crime. We consider the position of experts to be noteworthy, according to which the prohibition of terrorism is the norm of jus cogens. The norms of jus cogens are aimed at protecting fundamental, basic or higher interests or fundamental humanitarian values. These fundamental values include human rights and the right to human dignity, which are fundamental and belong to all people. It seems obvious that the prohibition of terrorism protects the fundamental values of humanity and human dignity. Terrorism is a threat ...

This article is devoted to the main problems in the institute of the death penalty. Nowadays, our society concentrates on the humanization of the rule-making framework, and especially on the loyal application of the punishment to the defendants. The State by establishing the death penalty takes away human life and it denies the honor, dignity and social value of human beings as the main goal of the states and social existence. The main idea of this article to analyze the institute of the death penalty, to explore and make statistics of states where it still exists and to determine reasons for its application. Therefore, the author considered the main aspects of the institution of the death penalty and the right to life, their legislative consolidation and concluded that the problem of the death penalty is one of the biggest problems in international law. In today's society, a lot of issues concerning the rightness and legality of the use of the death penalty exist. In this regard, the article focuses on the main regulations in which the prohibition of the death penalty is enshrined, these include the Second Optional Protocol to the International Covenant on Civil and Political Rights and Protocol No. 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms on the Abolition of the Death Penalty and the like. The concept of the death penalty, history and current state of its development in the world are also revealed. Also, the author analyzed the doctrine of scholars on this issue and consented that the death penalty is contrary to the principle right to life, which is the major one in international law. The author noted that many countries refuse to recognize international standards in this sphere and refuse to ratify the Protocols to international treaties abolishing the death penalty. Analyzing the issue of the death penalty, the author outlined numerous problems raised during conducting the study and noted that the international community has the task of solving the problems mentioned ...

The article is devoted to the study of the problems of the application of law of unrecognized states in international law. The concept of application of foreign law in general and the legislation of unrecognized states in particular is defined. It is indicated that the relation to foreign law, as an actual circumstance or as a legal category, is determined by the method of foreign law application, which varies depending on the legal family to which a particular state belongs. Two main theories concerning recognition are investigated: declarative and constitutive. The notions of "unrecognized states" and "unrecognized governments" are delimited.The peculiarities of the application of the law of unrecognized states in international law are defined. Key words: application of foreign law, establishment of content of foreign law, qualification of foreign law, unrecognized states, unrecognized governments, international recognition, sovereignty. кандидат філологічних наук, доцент, Мясоєдова С. В., Комлик А. В. Проблеми застосування права невизнаних держав в міжнародному праві/ Національний юридичний університет імені Ярослава Мудрого, Україна, Харків;Стаття присвячена дослідженню проблем застосування права невизнаних держав в міжнародному праві. Визначено поняття застосування іноземного права загалом та невизнаних держав зокрема. Вказано на те, що відношення до іноземного права як до фактичної обставини чи як до правової категорії визначається методом застосування іноземного права, що різниться залежно від того, до якої правової сім'ї належить певна держава. Досліджено дві основні теорії щодо визнання: декларативну і конститутивну. Розмежовано поняття «невизнані держави» та «невизнані уряди». Встановлено особливості застосування права невизнаних держав в міжнародному праві.Ключові слова: застосування іноземного права, встановлення змісту іноземного права, кваліфікація іноземного права, невизнані держави, невизнані уряди, міжнародне визнання, суверенітет.

In this article the author examines the basic norms of "soft law of the EU", which establish common rules for the use of energy from renewable sources and the level of their implementation in national legislation as well as the basis of cooperation between Ukraine and the EU on promoting energy efficiency and renewable energy sources. The author has made the general overview of international obligation of Ukraine about improvement and adaptation of the national legislation to the EU standards in the sphere being explored. The author determines the necessity of forming the policy directed on realization of investment projects in the spheres of energy efficiency and renewable energy in Ukraine; the need, the necessity additionally to the attraction of foreign investments, to support the national business entities that implement the use of energy from renewable sources. A specific role of constant scientific and technical updating in the field of energy production was established. In the article the main achievements in the field of energy use from renewable sources are analyzed, problem points and directions of further popularization and wide introduction of the production of energy from renewable sources from the production to the household sphere are identified. Enough attention is paid to the mechanisms of stimulation of renewable electricity production that have already been acting today; the author mentions energy-saving projects implemented by local authorities; the potentially most powerful renewable energy resources of the country are identified, the energy of the sun and wind in particular. Difficulties in using renewable energy often go beyond the strictly regulatory and financial issues. In this regard, the author permanently accents the need to raise citizens' awareness of the results of reforms and institutional changes in Ukraine and the opportunities provided by these reforms.

Local government is an important foundation of any democratic regime. In carrying out the functions and tasks assigned to local governments is crucial to ensure their autonomy and independence. One of the components of the local financial institutions are local borrowing.

Information technology has become an integral part of modern society and undoubtedly makes life easier for companies, public authorities and ordinary citizens. As the scientific and information breakthrough develops rapidly in many areas (commercial, private, educational, etc.), many legitimate legal issues related to the use of cloud technologies are increasingly emerging. The purpose of the article is to reveal the essence of international agreements in the field of cloud technology. This topic is considered from the point of view of private international law, as the relations arising from the use of cloud technologies, as a rule, have an international private law character due to the different nationalities of the parties. The authors analyze the provisions of Ukrainian and foreign legislation, determine international legal standards in the field of cloud technology, and analyze "agreements on the use" of well-known global brands such as Apple, Google, Microsoft and more. This scientific article focuses on the concept and types of international agreements using cloud services, as well as related issues: the parties to the agreement, place, time of its conclusion, the law applicable to such legal relations and more. Such agreements do not have a universal legal definition, so different international organizations and companies use their own definitions. There are several standards in the world in this area, both international and regional. On the one hand, it helps to improve and perfect this area, on the other hand - there is a saturation of relations in the field of "cloud" technologies with various documents and standards. The authors cover different types of cloud service providers, such as software as a service (SaaS), platform as a service (PaaS), and infrastructure as a service (IaaS); services used by the relevant legal entities; classifications of "clouds" (public, private, community and hybrid); types of international agreements concluded depending on the type of providers and the volume of services ...

The paper deals with the analysis of the legal nature of international courts' decisions and their impact on the international financial legal order. The author claims that decisions of international courts, creating no new international legal financial norms, act as an additional source of international financial law, having no autonomy, and in combination with other sources of international law, performs the following functions: 1) regulatory-prescriptive (via opinio juris of existing traditions in interstate practice in the financial sphere transforming them into international customary law); 2) regulatory-affirming (confirming the legal nature of the international agreement between the subjects of international financial legal relations which caused a disputable situation). The judicial practice on financial issues and specificity of functioning of such judicial institutions as the Permanent Court of International Justice, the International Court of Justice, the CIS Economic Court, the Court of Justice of the European Union, the Court of Justice of the Central African Economic and Monetary Community, etc. are examined. The features of the provisions of international agreements on financial issues regarding the procedure for resolving disputes between the parties of the agreement about its implementation are analyzed. The paper explores particularities of the origin and development of the idea of the creation of an international financial court. Amid modern processes of the rapid growth of the amount of crossborder financial flows in the context of globalization, which is the consequence of the implementation of numerous international financial agreements, the idea of creation of an international financial court, which was first suggested in 1935, due to the complexity of legal nature of interstate financial disputes, is an objective necessity. The following features intrinsic to decisions of international courts (including decisions on financial issues) have been identified: 1) locality (binding only on the ...

States are the main actors of international law and key actors in international affairs. States define the main vectors of the international law development and have an influence (direct and indirect) on all trends in international life. Currently there is no universal, generally accepted definition of state іn positive international law. The purpose of the article is to analyze the approaches to the definition of the state as a subject of international public law and to outline the definition of the state in accordance with applicable international law and international legal practice. The article analyzes the main characteristics of the state and the criteria (elements) of the state as a subject of public international law in accordance with applicable international law, international legal practice and modern international legal doctrine. It is concluded that the state is a subject of public international law, which is a political and legal territorial entity that meets the following criteria: has a permanent population, a defined territory, government, capacity to enter into international relations. Given the presence of these four criteria (elements) of the state, the state's sovereignty is presumed. It is also concluded that а state as a subject of public international law has the ability to create norms of international law; to acquire rights and obligations under such norms, to implement the specified norms; has the ability to participate in international public-legal relations; has the ability to bear international legal responsibility. The subject of international law is the state as a whole, and not its separate administrative-territorial units, state bodies or officials.