Suchergebnisse

The article explores the court fees related to the execution of court orders, which are addressed to the competent authorities of foreign states in civil cases with a foreign element. The Civil Procedure Code of Ukraine does not state that the costs associated with the execution of court orders, addressed to the competent authorities of foreign states, are court fees. Therefore, the questions on which of the above fees can be attributed to the courts fees and the procedure for their reimbursement are raised. The importance of clarifying these issues requires the application of the uniform approaches to such cases consideration in Ukrainian courts. It is determined as the main purpose of this article. The case-law shows that in most cases where a court needs to apply to a competent authority of a foreign state, the person concerned must pay for the certified translation of the statement of claim and the attached documents into the official language of the requested state and pay for service of documents. In our conclusions, we propose to divide the court fees associated with the execution of court orders addressed to the competent authorities of foreign states, depending on the procedural actions that are being carried out, and to include the fees associated with the execution of court orders addressed to the competent authorities of foreign states, to the fees associated with the case, namely to the fees associated with other procedural acts necessary to the case consideration or to prepare for its consideration, which will ensure the right of the interested party to reimburse such fees in future.

Arbitration proceedings have been studied as one of the alternative forms of protection of subjective rights, freedoms and interests of individuals and legal entities, in terms of the implementation of arbitration decisions. Consideration of these issues is related to the analysis of the role of arbitration in public relations, the comparison of judicial functions inherent in courts as public authorities, and the limits of jurisdiction of arbitration courts. The division between judicial functions and the jurisdiction of arbitration courts is important. The legal nature of arbitration decisions differs from the legal nature of decisions of official judicial institutions. At the same time, under the conditions provided by law, they have executive force and can be enforced. Enforcement proceedings are considered as a system of procedural mechanisms for the execution of decisions of courts, other bodies and officials. Decisions of arbitration courts in accordance with the Law of Ukraine «On Arbitration Courts», the Law of Ukraine «On Enforcement Proceedings», the Civil Procedure Code of Ukraine and the Commercial Procedural Code of Ukraine may be enforced subject to review and admission by competent courts. At the same time, a number of issues of their implementation do not have sufficient scientific development. These questions are connected with fundamental understanding of essence of arbitration proceedings, its place in system of mechanisms of protection of the right, features of executive procedures. These issues need comprehensive research and systematization. The urgency of the topic is due to the fact that modern legislation is in dynamic development. Arbitration, as well as other out-of-court procedures for the protection of subjective rights, freedoms and interests, has become widespread in public relations. Legislation needs to be improved, it must respond in a timely, appropriate and harmonious way to the challenges that arise in society. The key to this is the creation of a relevant doctrinal approach ...

The article analyzes various forms of protection of the rights of individuals to compensation for harm caused by a medical specialist, which are used in different countries around the world. In particular, special attention is paid to those approaches to pre-trial and out-of-court dispute resolution arising from patient harm relationships used in the United States. Among the most common ways of resolving such disputes are seeking help from a separate body or unit of a medical institution (risk management), mediation and negotiations in medical disputes, pre-trial inspections ("screening panels"), which allow to find a more compromise way to protect individual rights, affected by the actions of medical specialist. Accordingly, the first part of the article carries out a terminological analysis of the category "relationship of harm to a health worker" and the search for the closest term ("medical malpractice"), which allows for research in English-language scientific sources. The second part of the article is devoted to the analysis and generalization of the methods used in the practice of other countries to compensate for damage caused by a medical specialist (medical malpractice). The last part of the article analyzes the Ukrainian legislation and practice of national courts, which showed that in cases of compensation for damage caused by a medical specialist, there are no common approaches and single law approaches. In particular, attention is paid to the procedure for assessing the quality of medical services provided in 2016 by clinical expert commissions of the Ministry of Health of Ukraine. The study provided an opportunity to justify in the conclusions the need and feasibility of introducing additional out-of-court methods of resolving disputes arising from the relationship of harm to medical workers.

The article analyzes the process of juvenile offenders children's protection in the UK. The current structure of social protection of orphans and children deprived of parental care in the UK has three levels: state, regional, local. Between them are close interrelationship in solving the problems of children. The child is protected from birth until they reach adulthood and enter the adult life, getting social security, psychological and legal support from various agencies. Although each part of the United Kingdom (England, Wales, Scotland, Northern Ireland) has differences in terms of legislative and organizational structure - they follow a single strategy - providing care and support to orphans and children deprived of parental care. Their work aims to provide effective social protection of such population. The author offers the stages of courts procedures in different parts of Great Britain and gives the differences of every. The features of the process and stages of children's hearings in Scotland are suggested in the article. The author highlights the role and function of children's courts, punishment of children of this category, as well as the factors that determine the place of juvenile offenders punishment.

The scientific article is devoted to the videoconferencing in court proceedings by international law and the law of some European Union countries. The videoconferencing definition, the right to justice protection on the main international legal sources about the trial regulation and human rights to justice protection bases are studied, the procedural stages of court hearings by videoconference are analyzed. Carrying out comparative legal research at our country present stage legal transformation and development, especially related to the emergence of new, modern legal relations, is primarily due to the need to receive international and foreign experience and, consequently, improve current national legislation. It has been established, that the latest technologies introduction in the judicial process at the national and international levels has both advantages and disadvantages and is closely related to the protection and implementation of the right to justice. Normative legal acts about the right to justice consolidation are primary regarding the right of participants in court proceedings to participate in it by videoconference. The attractive side of conducting court hearings online includes: the availability of litigation for all participants, regardless of their location, saving time and money, compliance with legal requirements for the duration of litigation, and so on. Despite the general legal consolidation of the possibility of holding videoconferences in Ukraine and the EU, the procedural features of the rights and obligations of participants in such proceedings remain unclear, as well as unspecified issues regarding the application of different types of technical equipment depending on the conditions of video calls, the possibility of holding meetings outside the court in emergency conditions, etc.

The article considers and analyzes in detail the sources of the European Union aimed at ensuring equal and fair treatment of women and men. Such as Convention on the protection of human rights and fundamental freedoms, Universal Declaration of Human Rights, International Covenant on Civil and Political Right, Convention for the Protection of Human Rights and Fundamental Freedoms, European Social Charter. The authors determined that currently in the European Union there is no single approach to the definition of "discrimination", due to the lack of a basic unified source of law, this issue is regulated by both the EU's own acts and well-known international acts. Also, due to the increasing popularity of feminist movements, men experience violations and restrictions in their social and economic rights. Therefore, a study of the decisions of the most influential judicial bodies of the European Union was conducted to establish a common understanding of the concept of "gender discrimination". Ukraine has ratified these international conventions on human rights protection and recognizes their decisions as part of the national legislation of Ukraine.Ukraine has ratified the Convention and its Protocols, as the first part of the Law of Ukraine "On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, First Protocol and Protocols № 2, 4, 7 and 11 to the Convention" explicitly states that Ukraine fully recognizes "The effect in its territory of Article 46 of the Convention on the recognition and binding without special agreement of the jurisdiction of the Court of Human Rights in all matters concerning the interpretation and application of the Convention. "There is an obligation not only to enforce judgments of the European Court against the country, but also to apply the Convention and the case law of the European Court of Justice as a source of law. Therefore, the consideration of the cases mentioned in the article is important for the judiciary and the protection of human ...

The article addresses Ukrainian legislation that governs hearing economic cases with a foreign element. Relevant statutes in the realm have been analyzed. The algorithm for determining the applicable legislation is investigated. The main drawbacks of the laws in force are spotlighted and the ways for further improvement are envisaged. The author identifies the main risks business entities can encounter when a case involving foreign element is litigated. The grounds for consideration by commercial courts of Ukraine of cases with a foreign element are investigated. The author notices that the case law on these issues is inconsistent. Among the vexed questions related to the category of economic cases at hand, the following deserve special attention: determination of jurisdiction of the case; determination of the applicable law; features of proof; recognition and enforcement of court decisions abroad. The author concludes that the choice of a foreign court or law should be conscious and clearly motivated, as this is very important for judicial protection. The attention is focused on the complicated interaction between international and national law when economic dispute involving foreign element is considered by the court. The modern tendencies of judicial practice in this sphere are discovered. The typical procedural errors of the parties to a dispute are summarized and the problems of law enforcement are covered. The author analyses effective legal methods for considering a dispute on the basis of Ukraine legislation. The article contains recommendations for courts on learning the content and interpretation of foreign law for the purpose of its application in cases involving foreign element. The application of the institute of contractual jurisdiction in commercial cases with a foreign element is investigated. The author provides practical recommendations to business entities in order to effectively protect their rights in court. The author concluded that litigants should take an active part in the process of ...

The article is dedicated to the explanation of such legislative defects as gaps in the criminal procedural legislation during court decisions appeal. Within the framework of the study the attention focuses on the fact that regulatory rulemaking of the court decisions appeal in criminal proceeding contains multiple gaps that affect negatively at its practical implementation. Detailed analysis of the gaps in the criminal procedure legislation has been carried out. By reference to specific aspects of the judicial review implementation, the gaps classification according to their subject is proposed. More specifically the following gaps in the rulemaking of the court decisions appeal in criminal proceedings are identified: 1) concerning the object of appeal; 2) concerning the appealer; 3) concerning the subject of appeal; 4) concerning the appeal procedure, etc. It is pointed out that number of legal regulation gaps regarding the identification of the object of appeal is quite significant. Such gaps arise in response to the determining a list of court decisions by the legislator that are subject to appeal consequently making impossible reviewing those court decisions that are not directly enlisted. Such matter is illustrated by the example of the establishment of restrictions on the ability to appeal the investigating magistrate decisions. Considering the gaps concerning the appealer it is pointed out that in some cases the legislation does not provide the right of relevant parties for court decisions appeal or does not provide them with sufficient legal opportunities which limits a person's constitutional privilege for court decision appeal review and his/her access to judicial proceedings. The analysis of gaps concerning the subject of appeal was also carried out. It is concluded with reason that such gaps arise due to the disadvantageous legislative determining of the issues which are allowed to appeal procedure. In the course of the research attention is drawn to the fact that the criminal procedural legislature ...

The article explores the activities of the European Court of Human Rights. In recent years, many papers have been published on the issue of defining the "standard of proof" and its implementation in national law. The content of the concept of "standard of proof" is explained in the article. Its nature is revealed. Its features are identified and constituent parts of this concept are provided. Its interdependence with the concept of "inner conviction" is substantiated. Criteria for establishing an 'standard of proof' are provided, such as: - the existence of a body that sets these 'standards'; - fixing certain requirements for the content of a certain "standard" in legislative acts; - compliance with these "standards" by other bodies, etc.; - punishment for failing to comply with the requirements of "standards". The activities of the European Court of Human Rights are analyzed. The basic principles of its activity are noted, which include: General principles: -the principle of the rule of law; - the principle of legality; - the principle of justice; - the principle of proportionality of intervention. Special principles include the following: - the principle of "least common denominator"; - the principle that there are no barriers to the inadmissibility of evidence or a pre-determined formula for evaluating it "; - the principle of proportionality; - the principle of discretion; - the principle of additionality; - the principle of effectiveness of the Convention; - the principle of autonomous understanding. It argues that it is impossible to speak of "standards of proof" in the European Court of Human Rights. Such concepts as "beyond reasonable doubt", "equality of arms", "weighing of opposing interests", "evaluation of the fairness of the process as a whole" the author reveals through the case law of the ECtHR, namely " Abu Zubaydah v. Lithuania"," Gäfgen v. Germany "," Imbrioscia v. Germany Switzerland "," Magee v. Switzerland the United Kingdom ». In addition, the content of these decisions is disclosed in ...

Following the 2017 reform the civil litigation has been significantly changed. The action proceedings, inter alia, have been divided into general and simplified procedures. Therefore, the role of the court in determining the procedure for of the case consideration is decisive, since the law does not impose the obligation to apply to the court in a specific procedure but stipulates respective court power and criteria for its implementation.

Thus, the case may be heard in the general proceedings or in a simplified procedure, which provides for the possibility of a court hearing or without such a hearing, in accordance with the grounds and criteria laid down in Article 11, Parts 4 and 6 of the Article 274, Parts 1 and 2 of the Article 277, as well as Part 6 of Article 279 of the Civil Procedural Code of Ukraine, the common only approaches of which have not yet been achieved in practice. Therefore, the object of attention of the author is the problems of differentiation and determination by courts of specific grounds for consideration of civil cases according to the general or simplified procedure of action proceedings, as well as the appointment of a court session,

based on the analysis of first instances courts decisions, adopted during 2018-2019 and available for the research on the website of the Unified State Registry of Judgments.

As a result, the problematic issues that have arisen in the jurisprudence, in particular, regarding the decisive role of the court in choosing the civil case procedure have been identified and the relevant solutions have been proposed. The role of the court is to determine whether there are grounds for a simplified procedure, whether there are no grounds for a mandatory general procedure for this case consideration, as well as an assessment of the merits and motivation of the plaintiff's and defendant's motions for choosing the procedure for this case consideration, in particular, as it is defined in Article 11 of the Civil Procedural Code of Ukraine. Exercising the abovementioned powers, the court must first of all

proceed with the goals of civil justice and its general principles as well as Article 19 of the Civil Procedural Code of Ukraine.

The article deals with the structure of the court decision in an administrative case. The author defines the concept of a court decision as an act of justice and a procedural document, which has a separated structure form, and may not coincide with the content of the judgment as an act of justice. The act of judgment judiciary has ternary structure consists of subject and grounds maintenance. Court decision as a procedural document which is the external form of the act of justice expression consists of four elements: introduction, narrative, reasoning and the operative parts. The author defines the characteristic requirements of the relevant parts of judgments in the administrative process and proposes necessary amendments to the legislation.The introduction of court decision performs the function of the judicial act and allows us to establish when and where particular dispute between the parties was resolved and which was the subject of the dispute. Narrative of a court decision performs the information function, that enables both persons involved in the case, and a higher court without investigation of the case to form a general opinion on the composition and amount of the alleged claim, their reason and justification related to the claim of defendant, amount of researched evidence. The reasoning part of the court decision is intended to provide certainty and objective expression of the true circumstances of the case, point to evidence that these circumstances are confirmed and applied to the circumstances relevant legal provisions. In the reasoning of the court decision stated the law and regulations - regulations on which defined the rights and obligations of the parties and disputed legal and procedural rules of law which the court was guided by established facts of the case and the rights and obligations of the parties. The act of the resolution contains authoritative court order regarding claims, comprising an opinion to satisfy or refuse them, and the court applied the type (method) judicial protection of rights or legally protected interest by solving existent disputes between the parties on the merits. The content of the resolution part can provide basic and optional elements. The main elements are : a) to satisfy administrative action or refuse it; b) to make a court decision on the merits; c) a court order by the distribution of court costs. As optional elements, depending on the specific subject of a court command and ways of its implementation to the resolution of the court may be included : timing and execution of the order; court command that a judgment must be enforced. In addition, the resolution contains court judgments, including the procedure and time of appeal. ; Досліджено структуру судового рішення в адміністративній справі. Визначено поняття судового рішення як акту правосуддя та процесуального документа та доведено самостій­ність структури форми, яка може не збігатися зі змістом судового рішення як акту правосуд­дя. Як акт судової влади судове рішення має трикомпонентну структуру і складається з предмета, підстави та змісту. Судове рішення – процесуальний документ, який є зовнішньою формою виразу акту судової влади, складається із чотирьох елементів: вступної, описової, мотивувальної та резолютивної частин. Охарактеризовано вимоги до відповідних частин су­дових рішень в адміністративному процесі та запропоновано відповідні зміни до законодавс­тва.

The article considers the question of the validity of the restriction of the right to cassation complaint against court decisions of lower courts as an integral part of the right to court, which occurred as a result of the introduction of cassation filters on January 15, 2020. The essence and content of the amendments to the CPC of Ukraine, the nature of restrictions on the right to cassation complaint against decisions of courts of first instance and decisions of appeal courts are analyzed. The essence and content of the relevant cassation filters are indicated. The concept and content of the principle of ensuring the right to cassation complaint against court decisions through the prism of national legislation are revealed. The content of the right to cassation review of court decisions are studied in the context of the right to a fair trial, guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, taking into account the case law of the European Court of Human Rights and Fundamental Freedoms in relevant cases. There has been considered the issue of compliance of interference with the right of access to court by introducing cassation filters with the principles applied by the European Court of Human Rights in its practice when considering compliance with the right to cassation, guaranteed by Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The legitimate aim of introduction of cassation filters and adoption of the corresponding amendments is analyzed based on the explanatory documents which were submitted by the author together with the legislation proposal and which contained the substantiation of necessity of its acceptance. The issue of proportionality of interference in the right to cassation to aim of the reduction of the burden on the Civil Court of Cassation within the Supreme Court is considered based on statistical information on the execution of civil proceedings by the court in 2019-2020. Conclusions were made on the need to amend the provisions of the law, which set cassation filters. ; У статті розглянуто питання обґрунтованості обмеження права на касаційне оскарження судових рішень нижчестоячих судів як складової частини права на суд, що відбулося внаслідок уведення в дію касаційних фільтрів 15 січня 2020 р. Проаналізовано сутність і зміст внесених змін до ЦПК України, характер обмежень права на касаційне оскарження рішень судів першої інстанції та постанов суду апеляційної інстанції. Зазначено сутність і зміст відповідних касаційних фільтрів. Розкрито поняття та зміст принципу забезпечення касаційного оскарження судових рішень через призму національного законодавства. Досліджено зміст права на касаційний перегляд судових рішень у розрізі права на справедливий суд, гарантованого Конвенцією про захист прав людини й основоположних свобод з урахуванням практики Європейського суду з прав людини і основоположних свобод у релевантних справах. Розглянуто питання відповідності втручання у право на доступ до суду шляхом уведення касаційних фільтрів принципам, які Європейський суд з прав людини застосовує у своїй практиці під час розгляду дотримання права на касаційне оскарження, гарантованого ст. 6 Конвенції про захист прав людини і основоположних свобод. Проаналізовано законність мети введення касаційних фільтрів та прийняття відповідного законопроєкту виходячи з пояснювальних документів, які були подані автором разом із законопроєктом та які містили обґрунтування необхідності його прийняття. Розглянуто питання пропорційності втручання у право на касаційне оскарження зменшенню навантаження на Касаційний цивільний суд у складі Верховного Суду виходячи зі статистичної інформації щодо здійснення судом цивільного судочинства у 2019–2020 рр. Зроблено висновки щодо необхідності внесення змін до положень закону, якими встановлено касаційні фільтри.

The article defines the concept of political responsibility, has revealed the peculiarities of the dissenting opinion of the judges of the Constitutional Court of Ukraine in the context of political responsibility. Substantiated the necessity of a dissenting opinion of a judge in constitutional legal proceedings. Analyzed the validity, reason and practice making dissenting opinions by judges of the Constitutional Court of Ukraine. ; У статті визначено поняття політичної відповідальності. Розкрито особливості окремої думки судді Конституційного Суду України в контексті політичної відповідальності. Обґрунтовано необхідність окремої думки судді у конституційному судочинстві. Проаналізовано юридичну силу, причини та практику винесення окремих думок суддями Конституційного Суду України.

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 ...