In the article, based on the analysis of the norms of the current legislation of Ukraine, the control and supervisory administrative procedures, their stages and significance in the field of economic activity, customs and tax areas are considered. Special attention is focused on the definition of the concepts of «control» and "supervision". The control and supervision procedure is divided into the following stages: 1) initial (preparatory); 2) central (analytical); 3) total. Some scholars identify the fourth additional stage of appeal decisions, actions or inactivity of the public administration entity. The initial (preparatory) stage is aimed at preparing and ensuring control in the future. Regardless of the scope within its boundaries, the reasons and grounds for control are determined, the subject is determined, the term for conducting, the participants in the procedure, the decision on the control is taken and made in accordance with the legislation, in some cases the controlled subject is informed, etc. Within the central (analytical) stage, the collection of information is carried out using various techniques and methods, its research and analysis, and the final decision, which reflects the previous results of control and reasoning of the controlled entity. At the final stage, the administrative body decides on the results of control, namely: in the control process, violations were found or not. The stage of the appeal is implemented on the initiative of the controlling entity and is a form of legal protection of the rights of individuals in relations with the administrative body. The detailed administrative control and supervision procedure should be one of the guarantees of the prevention of corruption manifestations.
The article analyzes the institutional system of European Civil Procedure, supranational EU legislation of Civil Process, which is the basis of two recent pan-European procedures in civil and commercial matters,аnd procedures that facilitate efficient consideration and resolution of civil and commercial cross-border matters, including the service of judicial and extrajudicial documents, regulation of evidence, recognition and enforcement of judgments etc. ; В статье анализируется институциональная система European Civil Procedure, наднационального законодательства Европейского Союза в сфере гражданского процесса, основой которой явлются две современные общеевропейские процедуры по рассмотрению и решению отдельных категорий гражданских и коммерческих дел. Проанализированы положения, регулирующие вопросы передачи судебных и внесудебных документов, представление доказательств, обеспечение требований, признание и исполнение судебных решений, правовую помощь в трансграничных делах и тому подобное. ; У статті аналізується інституційна система European Civil Procedure, наднаціонального законодавства Європейського Союзу у сфері цивільного процесу, основою якої є дві сучасні загальноєвропейські процедури з розгляду й вирішення окремих категорій цивільних і комерційних справ. Проаналізовано положення, що регулюють питання передачі судових і позасудових документів, подання доказів, забезпечення вимог, визнання й виконання судових рішень, правову допомогу в транскордонних справах тощо.
The article examines the adversarial principle, its legislative consolidation. This paper analyses the concept of the adversarial principle as the primary principle of the civil procedure. The case law of the European Court of Human Rights on the adversarial principle is examined. The article analyzes the opinion of such scientists as Komarov, Stefan and Mamnitsky. The article highlights elements of the adversarial principle. There are: 1) right of the parties to participate in the process; 2) the right to justify claims and objections; 3) the right to petition; 4) the right and obligation to adduce evidence; 5) the right to submit new and additional materials in the court of appeal, cassation, etc. Ability in litigation requires that the prosecution, defense, civil claimant and defendant have the same opportunity to convince the court of their correctness. The parties and other parties involved in the case have equal rights to adduce evidence, to investigate and to prove their conviction. The court has a leading role in the trial it facilitates the full, comprehensive clarification of the circumstances of the case and adjudicates on the basis of internal conviction, guided by law. This principle is undoubtedly a historically conditioned legal phenomenon, since, at a particular stage of society's development, depending on national peculiarities and legal traditions. This paper analyses the legislative consolidation of the principle of competition in the Constitution of Ukraine and the Civil Procedure Code of Ukraine. Moreover, the article explores the practice of the European Court of Human Rights. Such as Garcia Ruiz v. Spain case, Montovanelli v. France case, Salov v. Ukraine case and the case of Lazarenko and Others v. Ukraine.
The article is devoted to the peculiarities of implementation and formation of provisions in the national legislation concerning the legal regulation of the squeeze-out procedure. The material reveals the reasons and essence of the formed procedure in the domestic securities market, allows understanding the peculiarities of its legal regulation, defined by the Law of Ukraine "On Joint Stock Companies". Despite a rather long period of functioning of the relevant norms in the domestic legal field, namely - for two years, there are still many problems associated with the peculiarities of compulsory sale of shares by shareholders at the request of the person (persons acting together) who is the owner of the dominant controlling stake. The article reveals the problem of difficulty in determining the value of shares and the absence of a clearly regulated procedure for such assessment; ambiguity in the interpretation of the general concept of ownership rights in the rules relating to the procedure of squeeze out. Also the legal positions of judicial authorities and the most actual and new views related to the solution of problems arising in the course of the procedure are considered. In the article the author points out that currently, Ukraine has a fundamentally new mechanism of protection of corporate rights and interests of both minority and majority shareholders. These innovations, although implemented in the legislation, taking into account the world practice, still have significant drawbacks, which do not allow us to speak about the full and successful introduction of the concept of squeeze-out in the national legislation. The only and most effective way for minority shareholders to protect their corporate rights, in the opinion of the author, at present, is to appeal to the court, although the institutions and bodies that could assist in solving complex issues related to the procedure of squeeze-out in Ukraine already exist. The procedure for repurchase of shares, especially in terms of their price, remains ...
The article is devoted to the differentiation of the procedures for extradition of a person, depending on the procedure for implementation, into ordinary and simplified ones, as well as the study of the procedural mechanism for extradition of a person in a simplified manner, taking into account legislative changes, related to ratification of the Third Additional Protocol and the Fourth Additional Protocol to the European the convention on extradition of offenders. The procedural features of the simplified extradition procedure are associated with a specific mechanism for its implementation, in which certain subjects of criminal proceedings are involved, exercising the rights and obligations, provided by law: the authorized (central) body of Ukraine, the competent authorities of Ukraine (the prosecutor), as well as the investigating judge, the head of the institution of preliminary detention , defender, if necessary – translator. In the investigated order of extradition, the following are special: conditions and grounds for application, subject composition, terms, procedural acts, restrictions on appeal. Simplified extradition can be applied only with the written consent of the requested person, approved by the investigating judge, before the decision on extradition is made by the authorized (central) body of Ukraine upon request. Simplification of extradition proceedings is aimed at accelerating the latter, saving procedural time and money, as well as reducing the time frame for the application of measures of criminal procedural coercion. The legality of actions, decisions when deciding on the application of measures of criminal procedural coercion (detention, temporary, extradition arrest, the use of preventive measures not related to detention), as well as the voluntariness of consent to simplify the procedure and understanding of the consequences of this is ensured by the investigating judge by implementing judicial control. Facilitation of extradition contributes to the international fight against crime, but ...
The article is devoted to the identification of characteristic features of legislative defects caused by regulatory legal acts (or within legislative acts) of terminological interpretations that are ambiguous. Polysemy quite often has a negative impact on the universal conceptual-categorical apparatus. Attention is drawn to the fact that the homogeneity of the subject matter of the legal regulation requires the maximum terminological clarity, since the context of the individual legal relations is not in itself sufficiently pronounced to provide a clear delineation of the meaning of the ambiguous term. The manifestations of normative polysemy only reduce the clarity of the law and create difficulties in law enforcement, including in the field of criminal justice. The manifestation of polysemy in criminal procedural law is considered on the example of the ambiguous legal term «reconciliation», the definition of legal meaning of which is determined only by the context of its use. In addition, the study draws attention to the fact that in the criminal procedural legislation there are cases where the problem of polysemy is not solved by taking into account the contextual meaning, and the use of means of interpreting the text of the law does not provide a clear answer. This situation is illustrated by an example of the use by the legislator of the identical terminological designation «trial» both for the name of the stage of proceedings in the court of first instance, and for the name of its separate (second) stage, which involves the examination of evidence. Suggestions are made to eliminate and overcome the described legislative defects.
The paper considers the problem of determining the amount and level of detail of the study in the procedures for assessing environmental impacts and strategic environmental assessment. Based on a deep analysis of the scoping process of international environmental assessment systems for planned activities for Internet resources and Internet portals, as well as modern Ukrainian environmental legislation, the author proposes a methodology for determining the scope and level of detail of the study in the procedures for assessing environmental impacts and strategic environmental assessment. The process of determining the scope and level of detail of the research in the procedures for assessing environmental impacts and strategic environmental assessment is a particularly important and most important stage in the planning of environmental, environmental and environmental impact assessment work. Determining the scope and level of detail of the study is scupping, a process designed to enhance the effectiveness of EIA and SEA procedures by identifying key issues, interests and alternatives that require research. This information will allow those responsible for the implementation of the ATS to properly target the research team to study significant issues. In addition, the systematic identification of tasks reduces the likelihood that an EIA and SEA report will have serious omissions, thereby avoiding delays associated with the need to process a report. Task definition is performed to ensure that time and money will not be wasted for collecting unnecessary raw data or performing unnecessary research, and important issues will not be missed. The article also substantiates the results of scoping. The author proposes to compile a technical task for conducting an EIA and SEA based on scoping results. Key words: scoping, environmental impact assessment, strategic environmental assessment, ecological assessment, subject of management. ; У роботі розглянуто проблему щодо визначення обсягу та рівня деталізації дослідження у процедурах оцінки впливів на довкілля та стратегічної екологічної оцінки. Базуючись на глибокому аналізі процедури скоупінгу міжнародних систем екологічних оцінок планованої діяльності за Інтернет-ресурсів та Інтернет-порталів, а також сучасного українського природоохоронного законодавства автором пропонується методологія визначення обсягу та рівня деталізації дослідження у процедурах оцінки впливів на довкілля та стратегічної екологічної оцінки. Процес визначення обсягу та рівня деталізації дослідження у процедурах оцінки впливів на довкілля та стратегічної екологічної оцінки є особливо важливим та найголовнішим етапом планування робіт з екологічного оцінювання проектної, планової та іншої діяльності, яка може чинити вплив на навколишнє середовище. Визначення обсягу та рівня деталізації дослідження – скоупінг, це процес покликаний сприяти підвищенню ефективності процедурам ОВД та СЕО шляхом виявлення ключових проблем, інтересів і альтернатив, що вимагають дослідження. Ця інформація дозволить особам, відповідальним за виконання ОВД, належним чином орієнтувати дослідницьку групу на дослідження значимих проблем. Крім того, систематичне визначення завдань зменшує імовірність того, що звіт з ОВД або СЕО буде мати серйозні упущення, і тим самим дозволяє уникнути затримок, пов'язаних з необхідністю переробки звіту. Визначення завдань виконується, щоб гарантувати, що час і гроші не будуть витрачені даремно на збір непотрібних вихідних даних або виконання непотрібних досліджень, а важливі проблеми не будуть упущені. У статті також обґрунтовується й результати скоупінгу. Автор пропонує складати технічне завдання на проведення ОВД (СЕО) за результатами скоупінгу.
This article explores the problem of whether the enforcement of judgments belongs to civil process stage, its importance as an integral part of the process. The legislator distinguishes this stage of the process among others, which implies that enforcement proceedings are a relatively independent institution. This article calls into question such autonomy because we consider that pointless to single out a stage whose implementation is impossible without those that precede it. All stages of civil process is considered as a single system, parts of whom closely related to each other and there is no need to isolate them. In our opinion, all elements of that system – civil process stage – should be treated as one thing that exist for achieving a common goal. Judicial protection is the highest guarantee of the rights and freedoms of citizens and legal entities. It is carried out with the help of justice as a form of exercise of the judiciary, aimed at the protection and protection of civil rights and interests through the consideration and resolution of civil cases. According to the Constitution of Ukraine (hereinafter - the Constitution) everyone has the right to go to court to protect their violated rights. It can be argued that the right of such an appeal, as well as the direct examination of the case and adjudication, is a right guaranteed by the Constitution, but not fully implemented. The actual exercise of such a right occurs at the stage of execution of court decisions, and therefore the main purpose of justice is carried out. Since judicial proceedings by themselves are not characterized by the final restoration of the infringed right, it can be said that the civil right is not renewed during civil proceedings. Therefore, there is a need to distinguish enforcement proceedings not as an independent institution, but as an integral part of the civil process, the stage at which such a process ends. And despite the fact that each stage has its own functional purpose, they are all designed to protect the rights and ...
The article is devoted to the scientific and legislative definition of the concept of "sanation of the legal entity". The provisions of the new Code of bankruptcy procedures on the peculiarities of the sanation procedure before the opening of bankruptcy proceedings are considered and analyzed. The main advantages of pre-trial sanation were taken into account as a new mechanism for bankruptcy prevention and restoration of the financial stability of the legal entity for the long term. Debt insolvency statistics are analyzed. Bankruptcy prerequisite revealed. Attention is drawn to the fact that the introduction of the new Bankruptcy Code introduces new opportunities for business safeguards, including pre-trial sanation. The procedure of pre-trial sanation was considered and studied in detail, its difference from the sanation in the bankruptcy case. Many different scientific definitions of the concept of "remediation" are considered. The feasibility of treating remediation by many methods has been analyzed. The conditions under which the procedure of sanation or pre-trial sanation can be considered successful are indicated. The author's attitude to the idea of pre-trial readjustment, its benefits in terms of saving time and resources are revealed. The Bankruptcy Code has been analyzed and certain features of pre-trial sanation have been identified: who initiates pre-trial sanation procedure, which is a "sanation plan", for which the debtor convenes a general meeting of creditors, the difference being "secured" and "unsecured" creditors, the special role of the Economic Court in the gradual implementation of pre-trial sanation, for which the arbitration manager, in which case the court refuses to approve the pre-trial sanation plan, what are the consequences of implementing the sanation plan.
The article highlights norms and provisions of international legal documents within such international organization as the League of Nations, the United Nations Organization, the Organization for Security and Co-operation in Europe, the Council of Europe, the Organization of American States and the Organization of African Unity (African Union) in terms of means and procedures for the peaceful settlement of disputes. Conventions, declarations, resolutions, protocols, statutes, charters, treaties and other acts can be found among these international legal documents from all continents all over the world. In the process of studying the international legal acts, there are analysed provisions stipulating the use of means and procedures for the peaceful settlement of international disputes. There are also described characteristic features of applying these tools and mechanisms. Besides, it is conducted an analysis of their peculiarities and perspectives for use in practice. Despite a wide range of instruments and mechanisms available for the peaceful settlement of disputes, number of conflicts all over the world is increasing. It may say about their ineffectiveness or about a necessity to develop new concepts, new ideas, new approaches to understanding of conflict and ways of its solution. All peaceful instruments include application of negotiations. Along with that, negotiations as a method to resolve a dispute are not fully discovered and updated. There are no strict and generally recognised rules of conducting negotiations, what participants of negotiations should comply with and what is allowed or not allowed to do while convincing. Researchers of the peaceful settlement of disputes agree on effectiveness and reasonableness of engaging the third, neutral party for dispute resolution. It can be an objective remedy in terms of impartiality and fairness. One more aspect which is taken into account more and more often is prevention. That is to take corresponding measures in advance. When the situation is at the ...
The article is devoted to the analysis of the legal culture of subjects of parliamentary procedures. The interpretation of the term and the legal features of this legal phenomenon are studied. It is summarized that the legal culture of subjects of parliamentary procedures is defined as the degree of legal development of the subject, the nature of his legal practice, the level of knowledqe of legal norms and objective assessment, prediction of the further development of society and state, the form of participation in the transformation of the legal reality, the level of legal activity, mastering the culture of legal thinking.The legal culture of subjects of parliamentary procedures can be manifested in such activities as:- participation in the reformation of the organization and activities of state authorities and local self-government; reforming the organization of elections to representative bodies by applying one or another type of electoral system;- increasing the role of civil society institutions in lawmaking, implementing the constitutional status of the parliament as the sole legislative authority, strengthening in accordance with the principle of the dis- tribution of powers of its constituent and control functions;- creation of a proper system of information support law-making and other activities of state bodies; the use of wide-ranging national debates on bills, especially those that directly regulate relations between man and the state, establish the rights and obligations of citizens;- application of forms of direct democracy, in particular the use in accordance with the Constitution the people's legislative initiative, an all-Ukrainian referendum on draft laws directly related to the relations of man and the state, social needs of citizens; the introduction of a local referendum to resolve legal issues of local importance, etc. ; Стаття присвячена аналізу правової культури суб'єктів парламентських процедур. Досліджуються тлумачення терміна та юридичні властивості цього правового явища. Підсумовується, що правова культура суб'єктів парламентських процедур визначається як ступінь правового розвитку суб'єкта, характер його юридичної практики, рівень засвоєння ним правових норм і об'єктивної оцінки та прогнозування подальшого розвитку суспільства і держави, форма участі в перетворенні правової дійсності, рівень правової активності, опанування культурою правового мислення.
In the article, the author established the nature and types of terms for resolving electoral disputes. It is concluded that it is advisable to establish the essence of the term as a legal category; it is used in the consideration and resolution of administrative disputes, including election disputes. It is substantiated that the term must be understood as a certain time period, determined by the calendar date or event, with the onset of which the person arises or terminates the right to act in a certain way. The terms in consideration and resolution of electoral cases are classified according to a number of criteria - the method of protecting violated suffrage; time of application of the right to appeal a management decision; stages of the election process; time criterion for their calculation; conditions of their occurrence; their substantive nature; opportunities for their recovery. Given the nature of the time limit for applying to the court as a variety of terms in the consideration and resolution of electoral disputes, it was concluded that it would be appropriate to classify them as defined by the substantive rules of administrative law. Attention is drawn to the fact that maintaining the norm on defining the terms of appeal to the administrative court as a guarantee of the protection of electoral rights in the structure of the Code of Administrative Procedure of Ukraine is a compulsory measure of legal regulation, they should be eliminated as part of law-making activities to develop and adopt the Electoral Code of Ukraine. It is emphasized that classifying the term of appeal to the administrative court as a guarantee of ensuring the implementation of suffrage to the category of material terms allows us to conclude that it should be understood as a limitation period. It is noted that it becomes especially relevant to solve the problem of legislatively determining the length of time for appeal to an administrative court as a category of material terms, and accordingly to solve the question of whether it is ...
The article investigates the procedure for dissolution of marriage under action proceeding. Temporary obstacles to submit a divorce suit have been established. Declarative nature of p.4 of Art. 185 of the Civil Procedure Code of Ukraine regarding returning a divorce suit during the pregnancy of a spouse has been proved. In practice it is unclear how the judge can establish the fact of pregnancy at the stage of initiation of the case because neither family nor civil procedural legislation stipulates the necessity to submit a certificate of pregnancy along with the suit. Judicial procedural mistakes during consideration of divorce cases under action proceeding have been established. It has been identified that divorce suits are submitted to the court under the rules of alternative jurisdiction. When the court tries cases on dissolution of marriage it assumes that the marriage is based on a free will of a woman and a man. It is inadmissible to force a man and woman to get married. When the spouses are forced to terminate marriage, keep it, enter into intimate relations using physical or psychological violence it violates their right to freedom and privacy and can have consequences provided for by law. Every spouse has the right to terminate marriage relationship. The law does not identify which measures can be applied by the court to bring the spouses together. The court is entitled but not obliged to give additional time for reconciliation. Following the analysis of case law regarding decision on additional time for reconciliation it has been proposed to expel Art. 111 of the Family Code of Ukraine and p. 7 of Art. 240 of the Civil Procedure Code of Ukraine because, unfortunately, the institute of reconciliation does not result in keeping the marriage, but it drags such important cases as dissolution of marriage. Conflicts, contradictory and unsolved issues of legal regulation of this procedure which were found during analysis of case law have been defined.
The article deals with the essence of mediation procedure as one of alternative ways to solve a legal dispute. The institute of mediation is not new for legal science, but it is not well known for Ukrainian law system. There are no doubts that the court has a significant role for solving legal disputes, but alternative ways of resolution like mediation have numerous advantages. Particularly, mediation contributes to decrease a workload for the courts and shorten the time for consideration of the case. Introduction of mediation institute as one of the ways to solve disputes into national practice will a certain step to bring effective Ukrainian legislation in line with the standards of European Union and Implementation of Directive 2008/52/EU. This underlines necessity of scientific development and topicality of this issue. Significant attention has been paid to research of international experience regarding this institute particularly using US and Polish examples. Positive experience of this institute in countries with different law system allows to conclude that mediation as an alternative dispute resolution will be also attractive in Ukraine. The article has analyzed the main types of mediation procedure. A proposal on possible introduction of mediation in civil proceeding has been made. The author has focused on the necessity to introduce mediation before the court and in the court. It has been mentioned in the article that in civil procedure it is essential to have external mediation which is carried out by professional mediators who receive certain practice. At the same time, it is possible to have in court mediation which will be carried out free of charge. The author draws attention that effective legislation does not regulate the procedure of mediation which creates obstacles for persons when they exercise their right to protection of their rights, freedoms and interests. Moreover, regulation of mediation in legislation will shorten the length of civil, commercial, family and labor trials as well as ...
The article deals with the issue regarding ensuring of effective protection in criminal proceedings. Following analysis of international acts and cases of the European Court of Human Rights international standards which are designated for the exercise of the right to protection in criminal proceeding and ensuring of its efficiency have been highlighted. It has been proposed to divide these standards in the following groups: i) standards which are aimed at ensuring efficiency of the legal defense carried out by the convicted person independently; ii) standards which contribute to effective legal defense carried out by defense attorney; iii) standards which were developed for effective legal defense carried out by the party of defense (by a convicted person and a defense attorney); iv) standards which have requirements to the state or its bodies and provides its bodies with obligations to ensure an effective legal defense. In this group of standards, the author highlights some elements compliance with which contribute to effective legal defense in criminal proceedings. Following a systematical analysis of the decisions of the European Court of Human Rights it has been concluded that majority of international standards have been implemented in national criminal procedure legislation. At the same time there is a space for improvement because there are standards which were not enshrined in Criminal Procedure Code of Ukraine such as: presentation of procedural documents to the convicted person in his language or other language he/she speaks if he/she signed these documents; providing with an opportunity to choose the defense attorney including the cases of his/her attraction upon appointment; binding the state to ensure the real defense of the suspect, convicted person because the appointment of the defense attorney does not ensure effective legal aid etc.
