SPIS TREŚCI / CONTENTS / ЗМІСТ

Implementation of the Principle of Advocacy in International Humanitarian Law. Persons in Need of Advocacy during Armed Conflicts

The article is devoted to the issue of topical issues of implementation and guarantee of the principle of protection of international humanitarian law. Advocacy is seen as protection not from the inevitable violence of war as such, but from arbitrariness caused by one warring party against persons belonging to the other warring party who came under the rule of the former during the war. One of the most important principles of international humanitarian law is that all persons who fall into the power of the enemy have the right to be treated humanely, regardless of their status and previous function or activity. International humanitarian law explicitly authorizes the parties to a conflict to take such control or security measures against persons under their control as may be necessary due to war. The right to protection is absolute and applies not only to persons deprived of their liberty, but also, more broadly, to the inhabitants of the territory under the control of the enemy. For example, the armed aggression of the Russian Federation against Ukraine, we can observe partial or complete disregard for the principle of patronage. If there are problems with the implementation and guarantee of the principles of international humanitarian law, states decide on their interpretation, primarily by international courts (these are special international criminal tribunals organized in connection with specific conflicts, the International Criminal Court and, of course, the International Court of Justice). UN) and tribunals, full-fledged decision-making on cases related to violations of international regulations.

Administrative and Legal Regulation of Notarial Secrets in Ukraine

The article is devoted to the issue of administrative and legal regulation of notarial secrecy in Ukraine. Analyzing the issues, we note that this issue becomes especially important in terms of legal reform of the country. The interests of man as a subject of society must be an important aspect of such a state. The main issue of building the rule of law should be the protection of the rights and legitimate interests of individuals and legal entities, which is the legal regulator of the state and level of development of civil society. Today in Ukraine there are many scientific discussions about the institute of notary, because in the current conditions of society, the profession of notary has taken a special place among the legal professions. Preservation of notarial secrecy strengthens public confidence in the notary and is one of the important rules of the notary, which ensures its authority, protection of notarial secrecy is a guarantee of notarial acts performed by notaries activities. Today, the legal system of Ukraine is in a state of comprehensive reform, which is due to the construction of a social, democratic, legal state. The world is undergoing constant changes of a legal nature, which also affect the domestic institution of notaries, and therefore some of its elements will always need to clarify the legal nature, nature and relationship with government and civil society. Every day, thousands of citizens and representatives of legal entities apply to notaries and officials entrusted with the performance of notarial acts on the basis of transaction certificates or other notarial acts. Since its inception, the notary is a unique institution of preventive justice, designed to ensure the clear realization of the rights and legitimate interests of participants in civil traffic in order to prevent the latter from appealing to the courts for protection. Carrying out notarial acts on behalf of the state, notaries are a key part of an effectively functioning legal system and an integral part of a democratic state governed by the rule of law.

Digital Technology Objects and their Legal Regulation

Problem statement. With the further development of digital technologies, their introduction into public life will deepen. The process of implementing digital technologies in law is currently underway. Depending on the subject and method of its legal regulation, the law includes the specified social relations in the sphere of the corresponding legal regulation. Due to the novelty of relationships with digital objects, their wired regulation is under development. Currently, the scientific problem is the classification of digital objects. The legal nature of these objects needs to be clarified. The aim of the work is to identify trends in the legal regulation of digital technology. The tasks are: to find out the directions of development of legal doctrine on objects of digital technologies; to determine the directions and essence of legal regulation of digital technology objects (in particular, in private law). Research methods. The formal-logical method is used in the study of theories to determine the lens of digital technology. The dialectical method is used to define the lens of digital technology in the legal system: private law, public law. The system-structural method allowed to study the objects of digital technologies in the system of private law. The logic of the study is built from general ideas about the objects of digital technology in law to the individual features of such objects in private law. Results. It was found that there are the following approaches to the study of digital technologies: technocratic, complex law, special law. The special legal approach has the following directions: public law, private law and research of digital technologies as an object of intellectual property law. The peculiarities of legal terminology are analyzed, namely: „virtual assets”, „virtual goods”, „digital things”, „digital technology objects”. The word „virtual asset” is inherent in economic terminology. In private law, it is more correct to use the concept of „virtual good”. The concept of absolute rights is studied. Conclusions. The possibility of applying the concept of property rights to the legal regulation of digital technologies has been proved. Features of digital technology ownership have been identified. It is proposed to consider the de facto owner of a digital technology object as a person who has access rights to it. This access is through authentication and verification. That is, entering the login and password of the appropriate user. The application of classifications of contracts in civil law to digital technology objects is analyzed. In particular, for legal purposes: agreements on the transfer of ownership, rights of use, provision of services, performance of works. It has been found that these classifications can be applied to them, taking into account the characteristics of digital technology objects.

Judicial Decisions of the Court of Cassation in Administrative Proceedings of Ukraine

The article analyzes the legal nature of court decisions of the Supreme Court as a court of cassation in the administrative proceedings of Ukraine. The concept and role played by court decisions of the court of cassation in administrative proceedings are defined. The types of court decisions of the Supreme Court as a court of cassation in the administrative proceedings of Ukraine are systematized. It is emphasized that the Supreme Court as a court of cassation within the limits set by the Code of Administrative Procedure of Ukraine, adopts rulings and rules. The decision on the cassation appeal is essentially made in the decision, which is final and not subject to further appeal. At the same time, the Code of Administrative Procedure of Ukraine provides for the possibility of adopting an additional resolution. It is emphasized that additional court decisions are made when all procedural issues have not been resolved by a ruling, in particular the issue of court costs. Such an additional decision is made by the court of cassation, which issued the main decision in the case. The content and structure of resolutions and rulings of the court of cassation in the administrative proceedings of Ukraine are studied. It is noted that although the procedural law distinguishes four components of court decisions: introductory, descriptive, motivational and operative parts, the Supreme Court in its rulings proposes a broader structure of court decisions. Many decisions of the Supreme Court reflect the following elements: introduction; the essence of the dispute; the factual circumstances of the case established by the courts; decisions of courts of first and appellate instances and motives for their adoption; cassation appeal; relevant sources of law and acts of their application; the position of the Supreme Court; court costs; operative part. It is emphasized that important in terms of resolving the case in fact play resolutions, which formalize the completion of the case, address the main issues and requirements of the cassation appeal, as well as the response to the cassation appeal. It is noted that the decisions are made on various procedural issues related to the progress of the case, motions and applications of the parties, the issue of adjournment of the case, adjournment, suspension of proceedings, etc. The type of judicial acts of the Supreme Court is singled out as a separate ruling by which the court can respond to violations of the law, in particular for abuse of procedural rights, violation of procedural duties, improper performance of professional duties by lawyers or prosecutors. which may bring the relevant persons to disciplinary responsibility.

An Improvement of Protection of Industrial Designs in Conditions of Reforming the National Legislation

In conditions of construction and functioning of innovative model of economy, of a necessity of creation and introduction of new technics and advanced technologies in manufacture the right to results of scientific and technical creativity acquires importance. The vast majority of scientific works of authors devoted to an analysis of the legal protection of industrial property, concerns only certain aspects of problematic issues of legal regulation of relations arising in the protection of industrial designs in the conditions of European integration of Ukraine. Therefore, there is a need for theoretical research on issues related to the improvement of Ukrainian legislation in this area to the legislation of the European Union. The article considers the problems of bringing the institute of industrial designs of Ukraine in line with the legislation of the European Union. The ways of improvement of the legislation of Ukraine in the field of protection of the rights to industrial designs to the European norms are offered. The concept of „industrial design” in the relevant national legislation has been improved. Emphasis is placed on the expediency of expanding the range of products, an appearance of which may receive legal protection in Ukraine as industrial designs. It is proposed to harmonize the relevant national legislation with the Civil Code of Ukraine on the validity of intellectual property rights to registered and unregistered industrial designs. It is concluded that Ukraine’s aspiration for European integration presupposes taking into account the positive experience of the relevant legislation of the European Union member states. Since measures aimed at introducing effective mechanisms for the protection of rights to industrial property objects are determined by the course of Ukraine’s accession to the European Union, therefore they are determined by the need to comply with European norms for such protection. However, it is emphasized that it is important not just to copy certain approaches to the protection of industrial property rights, which are enshrined in European Union law, but a systematic scientific approach to internal coherence and consideration of all elements of positive national law. The strength of scientific and technical, economic and legal development of Ukraine and the formation of an effective innovative model of the national economy depends on this.

Mechanism of Appeal and Methods of Verification of the Expert Opinion in Criminal Proceedings

The article is devoted to the study mechanisms of appeal and methods of verification of the expert opinion in criminal proceedings. It is proved that the expert opinion, as well as other collected evidence, should be verified for its compliance with the requirements of the legislation and consistency with the case materials, and if violations are detected during its preparation, such an opinion should be subject to appeal. It is indicated that the methods of verifying the expert opinion are defined by articles 332 and 356 of the Criminal Procedure Code of Ukraine. However, the peculiarity of carrying out this verification of the expert opinion is that such verification is possible only at the stage of judicial proceedings, while the current Criminal Procedure Code of Ukraine does not provide for a mechanism for verifying the expert opinion at the stage of pre-trial investigation. Attention is drawn to the fact that despite the absence of a legally defined mechanism for appealing an expert opinion in accordance with the norms of the Criminal Procedure Code of Ukraine, a party to criminal proceedings is not deprived of the right to appeal against such an opinion in a different order, namely by submitting to the Central Expert Qualification Commission of the Ministry of Justice of Ukraine an application for initiating disciplinary proceedings against an expert who violated the current legislation during the relevant expert examination. The grounds for submitting this application for initiation of disciplinary proceedings are: non-compliance of the expert’s specialty with the type of expert examination conducted by it; non-compliance of the content of questions put to the expert’s decision with the requirements of scientific and methodological recommendations; application by an expert of improper methodology of forensic examination; conducting expert research to clarify issues of law. It is argued that if, as a result of a review of the disciplinary responsibility of a forensic expert, it is found that he violates the norms of current law, then such an expert will be held disciplinarily liable, and the expert’s expert opinion drawn up by such an expert will be considered inadmissible evidence.

Discussive Aspects of the Issue of Legal Myth

The axiological aspects of legal myth and mythological perception of reality were analyzed and it was found that several interrelated properties of the studied myth can be identified, which allow to assert the thesis about its own and instrumental value. In particular, the intrinsic (ontological) value of legal myth is manifested in the formation of a certain sign system, which is a reflection of legal reality in the minds of man (or society). Mythological perception of reality, in our opinion, is authorial, selective, to some extent biased. Instead, the instrumental value of legal myth is observed in the processes of human cognition of the world and legal reality, in the process of identification and self-identification of man. In particular, the legal myth is not just a means of knowing and identifying the phenomena of legal reality, but serves as a reliable apologist for the value and moral choice of man and his behavior, such a sign system that has a certain „indulgence” for any human action (inaction). The instrumental value of the legal myth is not limited to the framework of the epistemological process, the tasks of observation and cognition, but has a powerful potential for influence and transformation of legal reality. Awareness of this potential of the legal myth opens a wide space for its application in order to root in the legal consciousness of man and, ultimately, society as a whole, the relevant legal (or anti-legal) values. The principles of interaction of the legal myth and the modern state are determined. Any legal myth seeks to spread, social support, wider recognition, in the most ambitious end – official recognition and legitimacy, which is impossible without a strong state function. The legitimation of the legal myth occurs through its spread in society, receiving social support and rooting first in the legal consciousness of individuals, and gradually – in the public legal consciousness. It can be argued that legal myths permeate all levels of legal reality of the modern state, from legal consciousness (man and society), and ending with the processes of lawmaking, law enforcement, interpretation.

To a Matter of the Nature of Educational Law

The paper focuses on the legal nature of educational law. The current trend is an increase in the arithmetic progression of the quantity of brunches of the legislation. However, an increase in the branches of the legislation does not automatically lead to an increase in the branches of law. And if a certain branch of law always corresponds to a branch of legislation, then a branch of legislation does not always reflect a certain branch of law. This is quite justified in relation to educational law. Despite the fact that the term “educational law” is recognized as well-established, the issue of the status of educational law remains controversial. The paper emphasizes that the transformation of views on the relative nature of educational law has come a long way from complete rejection of educational law, when it was considered only a sub-branch of administrative law to attempts to justify educational law as an independent branch of law. It is carried out analysis of different approaches for determining the legal nature of educational law, namely: as a sub-branch of administrative law, as a complex branch of law, as a legal array, as an independent area of research, as a discipline, as a special part of information law. The author pays special attention to highlighting the strengths and weaknesses of representatives of various fields in justifying the status of educational law. Attention is drawn to the fact that none of the supporters of the separation of educational law as an independent branch of law has proved and shown why the issue of legal regulation of educational relations should be considered outside of administrative law. It is emphasized the need to include in the curriculum a separate course “Educational Law” in the pedagogical sector of education and postgraduate studies. This is not about the formation of a unified approach to the teaching of discipline “Educational Law”. The subject and system of the discipline should be determined by the target audience, as well as current trends in education.

Problematic Aspects of the Detention Enforcement as a Preventive Measure to Suspects and Accused with Vision Impairment

The use of preventive measures such as detention enforcement is due to the restriction of fundamental rights. Particularly noteworthy is the issue of the feasibility of choosing this preventive measure for people with vision impairment. The aim of the research is determining the system of general standards of detention of persons with physical disabilities (in particular, visually impaired). The empirical base of the research is the national legislation of Ukraine, international acts, decisions of the European Court of Human Rights, data of the Integrated State Register of Court Decisions. The methodological basis is a set of general and special scientific methods, in particular, formal-legal (legal- technical) method of research, hermeneutical method, statistical method, system-structural method. On the basis of the research, taking into account the legal position of the ECtHR, the authors propose to distinguish the general standards of detention of persons with physical disabilities (in particular, visually impaired), such as: (1) detention should be reasonable in time; (2) it should not lead to health deterioration (compared to the natural course of the disease); (3) the prisoner should be provided with adequate medical care at an appropriate level; (4) the physical condition of the person in custody should not make him or her dependent on other persons being held with him or her in custody; (5) the conditions in which the person is remanded in custody must be appropriate to the physical condition of the person and cannot be considered separately from the person’s disability; (6) constant more intense surveillance should be provided to prevent any deterioration in health than might be the case if the person were not imprisoned; (7) if there is an appropriate medical finding that a person is not in custody, he or she should be considered by a competent subject for a possible change in the measure of detention or place of detention. The authors pointed out some shortcomings in the legislation and the law enforcement practice of this issue.

Cassation Filters in Civil Judiciary

The article is devoted to the study of theoretical aspects of the implementation of the latest cassation filters in civil proceedings, related to the legal opinions of the Supreme Court, as well as the prospects for their further legal regulation. Procedural filters in the court of cassation are considered in the context of conceptual theoretical approaches developed by the judges of the Supreme Court themselves, which are most relevant to the outlined issues, as well as from the point of view of the participants in the process – the subjects of the cassation appeal as it affects a fairly wide range of people, they are judges not only of the Supreme Court but also all instances, including the first and appellate ones, the parties to the case and the lawyers who file cassation appeals,after all, the level of complexity of a civil case permanently determines the increased requirements for the content of the cassation appeal, its structuring,proper substantiation and clear formulation of the grounds for cassation appeal of a court decision. A retrospective analysis of civil procedural legislation on the right of access to the court of cassation was carried out, demonstrating the narrowing of the jurisdiction of the domestic cassation, starting with the granting of the right to appeal in cassation to any court decision with the transition to the definition at the constitutional level of restrictions on obtaining judicial protection in cases specified by law, taking into account public or private interests. The notion of cassation filters is formulated, which defines the restrictions established by law in access to the court of cassation, which make it impossible to file a cassation appeal and the right to cassation review,and the classification of cassation filters in civil proceedings is divided into two groups: \ unconditional cassation filters are mandatory restrictions on access to the court of cassation, which exclude the right to file a cassation appeal(for example, if the case is heard under the rules of summary proceedings) and conditional cassation filters are the restrictions under which a cassation appeal may be admitted under certain conditions. The provision that cassation filters should be fair and justified, effective and, most importantly, should not impede access to justice and should not violate the right to a fair trial. A detailed description of each ground of cassation appeal, laid down in part two of Article 389 of the CPC of Ukraine on the fairness of the new cassation filters that operate in the domestic model of cassation over the past two years, the conditions for the application of paragraph 1 of Part 2 of Article 389 of the CPC of Ukraine, which include the presence of a legal opinion of the Supreme Court (including overcome or selfassigned) and maintaining its legal force in relation to the disputed legal relationship, establishing whether the legal relationship is similar, disregarding the legal opinion of the Supreme Court by the courts of first and second instance. The problematic and controversial issues of modern cassation filters have been specified, which include: ignoring the term “cassation filters” by the current CPC of Ukraine, which is derived at the doctrinal level; lack of clear legislative regulation of the concept and limits of legal conclusions of the Supreme Court; lack of official systematization of legal opinions of the Supreme Court,as well as a certain classifier of cases, which complicates their search by participants in the process; operation by the legislator of a number of evaluative concepts,such as “similar legal relations”, “motivation”, “validity” in determining cassation filters; failure to link cassation filters to the legal conclusions of the Supreme Court,that in judicial practice has not led to a decrease in cassation appeals; lack of a legally formed list of grounds for deviation from the legal conclusions of the Supreme Court and differences in the wording of similarity of legal relations; lack of unity in understanding the correct meaning of the term „taking into account” the legal opinion of the Supreme Court courts of first and second instance in view of the vertical and horizontal effect of legal opinions of the Supreme Court. It is proved that the most dangerous risks are embedded in the cassation filter contained in paragraph 2 of Part 2 of Art. 389 GIC of Ukraine, such as a reasoned justification for the need to deviate from the conclusion on the application of the rule of law in such legal relations. which transferred to lawyers the function of forming judicial practice that is not peculiar to them, which violates the right of participants in the process to access the court of cassation. The concept of cassation filters already covers a wide range of general procedural filters, which relate to the impossibility of cassation appeal of court decisions made in summary proceedings, in minor cases, cases of refusal to open cassation proceedings due to unfounded cassation appeal. It is proposed to revise the scope of the current cassation the prism of the expediency of the latest cassation filters in terms of the effectiveness of legislation given that the binding of cassation filters to the legal conclusions of the Supreme Court does not reflect the impact of new procedural filters on the unloading of the Supreme Court as a higher court.

Current Problems of Inheritance Rights Realization

This scientific article examines current practical and theoretical issues related to the exercise of the right to inherit. Particular attention is paid to the study of the development of legal bases and research on the exercise of the right to inheritance. The exercise of the right to inherit is considered as a complex concept that provides ways to exercise the right to inherit, reflecting the dynamics of inheritance and deepening the relationship between the rules of substantive and procedural law. This article focuses on the study of ways to exercise the right to inherit. The peculiarities of the procedure for exercising the right to inherit by submitting an application for acceptance of the inheritance, by applying to notaries, are analyzed. Particular attention is paid to the need to distinguish between the legal nature of the application for a certificate of inheritance and the application for acceptance of the inheritance. The article defines the essence and purpose of establishing the conditions and forms of inheritance, as well as the types and procedure for refusing to accept the inheritance. It is emphasized that established by the Civil Code of Ukraine, that the forms and conditions of acceptance of inheritance to protect the rights and legitimate interests of heirs, and do not provide an alternative method of acceptance of inheritance. Particular attention is also paid to the exercise of the right to renounce the inheritance by the heirs, who are subject to the presumption of acceptance of the inheritance. Through scientific analysis of judicial and notarial practice concerning the adoption of measures for the protection of hereditary property, which is in the individual legal orders of an individual, it is argued that in the case of storage of property in a bank safe there is no purpose to perform this notarial act. The legal nature of the term for acceptance of the inheritance is determined, and the legal consequences of missing the term for acceptance of the inheritance are clarified. The procedure and grounds for division (allocation) and redistribution of inheritance are revealed. As a result of the analysis of judicial and notarial practice, a number of proposals were developed to improve notarial proceedings in inheritance cases, including inheritance, consent of heirs who inherited, acceptance of inheritance by heir who missed the deadline for acceptance of inheritance, withdrawal of applications for inheritance and renunciation of inheritance. On the basis of this study, some theoretical conclusions and proposals for improving the current legislation have been formulated.

Security Proprietary Rights: Legal Nature, Functions, Types

The article is devoted to the study of security proprietary rights to ensure the fulfillment of engagements. The institute of security rights, its regulation under the current legislation of Ukraine and individual countries is analyzed. The legal nature and specific features are determined, the functional load of the methods of ensuring the fulfillment of engagements is clarified and the characteristics of the engagement-legal and real-legal types of security are characterized. Material security encumbrances on the debtor’s property rights, resulting in the „right of succession”, which is to accompany the encumbrance on the thing in the event of its transfer to other owners. The elements of the binding legal relationship are described. Civil turnover requires an effective system of precautionary measures of both binding and substantive nature, due to the need for legal remedies aimed at the proper performance of the parties to their contractual engagements. Along with the engagements, an important place is occupied by the material types of securing contractual engagements, where their main purpose is to give the creditor confidence in the satisfaction of their property interests in case of non-performance or improper performance of engagement by the counterparty. The grounds for the right of the creditor to satisfy property claims on the subject of material security are investigated. A pledge or mortgage may arise on the basis of a contract, law or court decision. The creditor’s claims on the mortgaged property can be satisfied in several ways: foreclosure on the mortgaged property through its sale or transfer of ownership of the mortgaged property in case of default by the debtor of the engagement secured by the pledge. The right of retention is considered, which is realized through the incentive of the debtor to fulfill the engagement by lawful possession of the thing by the creditor until the proper performance of the engagement by the debtor. The right of retention as a form of ensuring the proper performance of an engagement is included in the provisions governing the performance of certain contracts, including contract type, provision of services, commissions, etc. Security rights arise before the breach of the engagement and depend on the proper performance of the contractual engagement. The collateral gives the creditor the right to receive property satisfaction from the subject of collateral in case of non-performance of the engagement due to the debtor’s fault. The analysis and brief description of the types of security property rights is carried out. Theoretical conclusions on the researched questions directed on improvement of regulation of the security rights in the civil legislation of Ukraine are formulated.

Recourse to the Funds on the Accounts of the Debtor in Banking Institutions, in the Execution of Court Decisions in Civil Cases

The article considers some legal problems faced by public and private executor when applying for the funds on the accounts of the debtor in banking institutions, in the execution of court decisions in civil cases. It is also not unimportant to determine the enforcement action, which consists in foreclosing funds on the debtor’s accounts in banking institutions as a primary and effective measure performed by the executor when opening enforcement proceedings, which contributes to an increase in the level of execution of court decisions in civil cases. The main problems that arise when applying for recovery on the funds on the accounts of the debtor are given in this article. Legislative changes considered that have had an impact on the improvement of the arrest system of funds of the debtor. The role of such an enforcement action as recourse to sanctions is defined to the funds on the accounts of the debtor in banking institutions in the execution of judicial proceedings in civil cases. Identifies shortcomings and points the way to improve the automated seizure of debtors’ funds in bank accounts. The content of the application for recovery of funds has been disclosed in the accounts of the debtor in banking institutions. The classification of such an executive action is proposed as an application for recovery of money on accounts of the debtor in banking institutions. Proposals for further development are formulated in automatic seizure of debtors’ funds in bank accounts. Disputed court practice on account security to which wages are credited is presented. Court practice on recovery of funds in the accounts of the debtor in banking institutions in the execution of civil judgements analyzed. Based on the examples of established practical activities the executors are modelled problem situations for private and public executors recovery on funds in accounts of the debtor in banking institutions during the execution court decisions in civil trials. Ideas on improvement of banking legislation presented in the field of forcible to cancel the debt debtors’ funds. Direction of development of the executive production to increase the level of efficiency execution of actions aimed at recovery of funds in the accounts of the debtor in banking institutions in the execution of civil judgements.

In this article, the author considers the Azerbaijani state as a subject of constitutional and legal relations. The definition of constitutionalism is also analyzed, in which the main value in the state is the freedom of the individual and the provision of fundamental human rights and freedoms.