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MINISTRY OF EDUCATION AND SCIENCE OF UKRAINE STATE HIGHER EDUCATIONAL INSTITUTION

«UZHHOROD NATIONAL UNIVERSITY»FACULTY OF LAW

SCIENTIFIC HERALD OF UZHHOROD NATIONAL UNIVERSITY

Series

JURISPRUDENCEEdition 25

Uzhhorod-2014

The journal is included in the list of academic editions of Ukraine in which the results of dissertations for research degrees

of doctor and candidate sciences of legal disciplines can be published.Resolution of the Presidium of VAK of Ukraine № 205/5 from June 8, 2005.

The revalidation of the edition is carried out, Resolution of the Presidium of VAK of Ukraine № 105/3 from July 8, 2009.

EDITORIAL BOARD:Head editor: Bysaha Yu.M. – Doctor of Law Sciences, ProfessorDeputy Head editor: Byelov D.М. – Doctor of Law Sciences, ProfessorExecutive Secretary: Rohach O.Ya. – Doctor of Law Sciences, ProfessorEditoral board members: Bysaha Yu.M. – Candidate of Law Sciences, Professor Bobrovnyk S.V. – Doctor of Law Sciences, Professor

Buletsa S.B. – Candidate of Law Sciences, Associate ProfessorVoronova L.K. – Doctor of Law Sciences, Professor, Academician of the National Academy of Science of UkraineHarahonych O.V. – Candidate of Law Sciences, Associate ProfessorGomonay V.V. – Candidate of Law Sciences, Associate ProfessorHretsa Ya.V. – Candidate of Law Sciences, Associate ProfessorDzera О.V. – Doctor of Law Sciences, Professor, Corresponding Member of the National Academy of Science of UkraineKozyubra M.I. – Doctor of Law Sciences, Professor, Corresponding Member of the National Academy of Science of Ukraine Kolodiy A.M. – Doctor of Law Sciences, ProfessorKubichek P. – Candidate of Law Sciences, Professor, University named after J.A. Comenius, Bratislava (Slovak Republic)Lazur Ya.V. – Doctor of Law Sciences, ProfessorLemak V.V. – Doctor of Law Sciences, Professor, Corresponding Member of the National Academy of Science of Ukraine Lenger Ya.I. – Candidate of Law Sciences, Associate ProfessorMarek K. – Candidate of Law Sciences, Professor, University named after T.G. Masaryk, Brno (Czech Republic)Martselyak O.V. – Doctor of Law Sciences, ProfessorMytrovka Ya.V. – Candidate of Law Sciences, Associate ProfessorPalinchak М.М. – Doctor of Historical Science, ProfessorPatakiyova М. – Candidate of Law Sciences, Professor, University named after Ya.A. Kamenskiy, Bratislava (Slovak Republic)Petrishin O.V. – Doctor of Law Sciences, Professor, Academician of the National Academy of Science of UkrainePranevichyene B. – Candidate of Law Sciences, Professor, University named after Mykolas Romeris, Vilnius (Lithuania)Rogach I. – Candidate of Law Sciences, Faculty of Law named after Ya.Yasinskoho, High School (Sladkovichevo, Slovak Republic)Semerak O.S. – Candidate of Law Sciences, ProfessorSidak M.V. – Doctor of Law Sciences, ProfessorSkrypniuk O.V. – Doctor of Law Sciences, ProfessorStupnyk Ya.V. – Candidate of Law Sciences, Associate ProfessorFazykosh V.H. – Candidate of Law Sciences, ProfessorChecherskyy V.I. – Candidate of Law Sciences, Associate ProfessorYarema V.I. – Doctor of Economic Sciences, Professor

Recommended for publication byThe Academic Council of State Higher Educational Institution

«Uzhhorod National University», protocol № 7-2013/2014 from 20.03.2014 year.Certificate of state registration of the print media series VC № 7992,

issued by the State Committee for Television and Radio 09.10.2003 year.

© Uzhhorod National University, 2014© The idea of the cover design belongs to prof. Bysaha Yu.M.

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Scientific herald of Uzhhorod National University, 2014♦

CONTENTS

SECTION 1THEORY AND HISTORY OF THE LAw AND THE STATE; HISTORY OF POLITICAL AND LEGAL DOCTRINESAbukhin R.D. SOCIAL AND CULTURAL CONTEXT OF LAW SCHOLAR’S EXISTENCE (THROUGH THE EXAMPLE OF S.V.PAKHMAN’S BIOGRAFY) 7Lysenko A.M., Bohma A.V. THE HISTORICAL ASPECT OF FORMATION AND DEVELOPMENT OF FREE LEGAL ASSISTANCE IN UKRAINE 7Gida E.A. DEONTOLOGICAL PRINCIPLES OF THE POLICE ACTIVITY AND THEIR CONSOLIDATION IN INTERNATIONAL LEGAL DOCUMENTS 8Karpichkov V.A. LEGAL REALITY: CATEGORICAL ANALYSIS 9Koban O.H. THE ONTOLOGICAL PLURALISM OF YE. ERLIH’S LAW 9Кulishenko O.Yu. SOURCES OF LEGAL REGULATION OF LAND RELATIONS IN THE HETMANATE IN DURING THE SECOND HALF VXII-FIRST HALF VXIII CENTURY 10Peresh I.Ye., Zan М.І. JURIDICAL CONFLICTOLOGY: PUBLIC NEED AND PROSPECTS OF STUDY SUBJECTS 11

SECTION 2CONSTITUTIONAL LAw; MUNICIPAL LAwByelov D.М., Yakimovich Ya.V. UKRAINIAN CONSTITUTIONALISM: HISTORICAL FOUNDATIONS 12Karelova D.А. PROTECTION OF HUMAN RIGHTS AND FREEDOMS BY THE CONSTITUTIONAL COURT OF UKRAINE 13Kulakova E.V., Briechko A.S. AS FOR THE CONCEPT AND NATURE OF TERRITORIAL COMMUNITIES (GROMADAS) 14Melekh B.V. EFFICACY FORMS OF INFLUENCE OF THE VERKHOVNA RADA OF UKRAINE ON HUMAN RIGHTS ON THE PATH OF EUROPEAN INTEGRATION 14Riznyk S.V. THE THEORETICAL PROBLEMS OF RESTORING FORCE OF LEGAL ACTS AS A RESULT OF DECISIONS OF THE CONSTITUTIONAL COURT OF UKRAINE 16

SectION 3CIVIL LAw AND CIVIL PROCESS; FAMILY LAw; INTERNATIONAL PRIVATE LAwBuleca S.B. PERSONAL DATA OF PATIENT 17David L.L. FEATURES OF THE SUBJECTIVE CIVIL RIGHTS ON DESIGN PATENT 18Lezhukh T.I. FEATURES OF PROOF IN CASES ARISING IN THE PROTECTION OF HONOR, DIGNITY AND BUSINESS REPUTATION 18chizhmar K.І. HISTORIOGRAPHY CONCEPT OF RESEARCH OF INSTITUTE OF NOTARIES IN PROTECTION SYSTEM AND FREEDOMS AND CIVIL RIGHTS 19

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Series JURISPRUDENCE. Edition 25♦

SECTION 4ECONOMIC LAw; ECONOMIC PROCEDURAL LAwZgama A.A. LEGAL ASPECTS OF FUNCTIONING OF DERIVATIVES 20Kariakina O.Y. THE PRINCIPLE OF GOOD FAITH IN THE CONCLUSION AND IMPLEMENTATION OF THE FRANCHISING AGREEMENT: ECONOMIC AND LEGAL APPROACH 21Korotych Ye.O. STATE REGULATION OF PRICES FOR MEDICINAL PRODUCTS 21

SECTION 5LABOUR LAw; SOCIAL SECURITY LAwBailo O.V. FORMS OF PROTECTION DIGNITY BY WORKER 22Brus J.P., Bahnovska I.P. EMPLOYMENT CONTRACT AS A FORM OF CONSOLIDATION OF FUNDAMENTAL RIGHTS BETWEEN THE PARTIES TO THE EMPLOYMENT RELATIONSHIP 22Goloborodko V.A. WORKER REMOVAL FROM WORK AS A PREVENTIVE MEASURE IN LABOR LAW 23Gurash V.M. LEGAL DOCTRINE AND ITS MEANING FOR THE EVOLVEMENT OF LABOUR LAW OF UKRAINE 24Zakernychnyy P.I. THE CONCEPT AND FORMS OF EMPLOYMENT 24Kiseleva O.I., Andriychenko N.S. LEGAL REGULATION OF OUTWORK 25Roshkanuk V.М. PROCEDURAL AND LEGAL PROCEEDINGS IN THE SOCIAL SECURITY LAW 26

SECTION 6LAND LAw; AGRARIAN LAw; ENVIRONMENTAL LAw; NATURE RESOURCES LAwBilyk I.A. DIFFERENTIATION OF ENVIRONMENTAL AND OTHER OFFENSES BY THE OBJECT AND SUBJECT CRITERIAS 28Lisova T.V. PROBLEM OF PROVISION OF REQUIREMENTS OF ENVIRONMENTAL SAFETY IN THE USE OF LANDS OF THE INDUSTRY 28Lozytska K.O. THE LEGAL NATURE OF INVESTMENT AGREEMENT IN THE SPHERE OF INVESTMENT IN THE ENVIRONMENT 30Mak L.B. DOCTRINAL APPROACHES TO THE DEFINITION OF LAND LAW AS A BRANCH OF THE UKRAINE’S LAW 31Nechiporuk L.D. FAUNA WILDLIFE AS OBJECT OF ENVIRONMENTAL LEGISLATION 32

SectION 7ADMINISTRATIVE LAw AND PROCESS; FINANCIAL LAw; INFORMATION LAwAdabash A.V. ADMINISTRATION RESPONSIBLE FOR VIOLATIONS OF THE STATE SECRETS 33

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Belitskaya M.A. ADMINISTRATIVE RESPONSIBILITY IS AS THE APPEARANCE OF LEGAL RESPONSIBILITY FOR VIOLATIONS IN THE SPHERE OF SUBSOIL USE 34Demyanchuk Y.V. INSTRUMENT CONCEPT OF PUBLIC POLICY IN REGULATING SOCIAL RELATIONS 34Ivantsov V.O., Maslennikova S.А. THE TAXPAYERS’ RIGHT: THE PROBLEMS OF REALIZATION IN ADMINISTRATIVELY TO COUNTERACTION NONLEAGUE DECISION OF TAX ORGANS 35Kapustina K.O. THE CRIMINAL-EXECUTIVE INSPECTION AS THE SUBJECT OF PROCEEDINGS ON ADMINISTRATIVE VIOLATIONS 36Klymentyev O.P. INFORMATIONAL INTERACTION AS A MANIFESTATION OF AN INFORMATION FUNCTION 36Komisaruk N.O. “GREEN INVESTMENTS” AS A FORM OF PUBLIC FUNDING OF ENVIRONMENTAL ACTIVITIES 37Kornuta L.M. DESCRIPTION OF TYPES OF DISCIPLINARY PENALTIES WHICH ARE USED TO CIVIL SERVANTS IN UKRAINE AND DETERMINATION OF DIRECTIONS OF THEIR IMPROVEMENT 38Коrulya І.V. STATE CONTROL AND SUPERVISION AS EFFECTIVE FACILITIES OF ACTIVITY OF MILITIA IS IN SPHERE OF COUNTERACTION CORRUPTION 39Mazur T.V. PECULIARITIES OF METHOD OF PUBLIC REGULATION AND ITS OCCURRENCE IN FINANCIAL LAW 39Slivich I.І. FORMING AND MAINTENANCE OF MODERN MODEL OF ADMINISTRATIVE PROCESS IN UKRAINE 40

SECTION 8CRIMINAL LAw AND CRIMINOLOGY; PENAL LAwAidynian A.V. THE MISTAKE OF FACT AND NEGLIGENCE: INTERRELATION BY CRIMINAL LAW CONTENT 42Bobonich E.F. TRANSACTION, AGREEMENT, CRIME: CORRELATION OF CONCEPTS 42Verbanovsky V.V. PECULIARITIES OF CRIMINAL CONTENT OF ART. 263-1 OF THE CRIMINAL CODE OF UKRAINE 43Gargat-Ukrayinchuk O.M. CRIMINOLOGICAL CHARACTERISTICS OF FEMALE CRIME 44Gusak A.P. PRINCIPLES OF JUVENILE JUSTICE 44Gusak T.P. CRIMINOLOGICAL CHARACTERISTICS OF CRIMES COMMITTED BY FOOTBALL FANS AND PREVENTION AND PREVENTION OF THESE CRIMES 45Zharovska H.P. INTERRELATIONSHIP OF TRANSNATIONAL SEGMENT OF UKRAINIAN ORGANIZED CRIME AND TRANSNATIONAL CRIMINAL MARKETS IN TERMS OF GLOBALIZATION 46Kolesnyk M.O. THE TERM «SYSTEM» AND «MECHANISM» TO COUNTER JUVENILE DELINQUENCY: THE PROBLEMS OF CORRELATION 46Krysiuk Y.P. SOCIAL ADAPTATION OF THE INDIVIDUAL AS AN IMPORTANT PREREQUISITE FOR RESOCIALIZATION OF FORMER PRISONERS 47Kurbatova I.S. THE USE OF PSYCHOLOGICAL PRESSURE AS A METHODOF CRIMINAL ATTACKS ON ELDERLY 48

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Makarov A.V. THE PRACTICE PROBLEMS OF ENFORCEMENT OF SANCTIONS FOR THE CRIMES AGAINST MORALITY 49Orlovsky R.S. CRIMINAL LEGAL SIGNIFICANCE OF FORMS OF COMPLICITY 49Pisar S. ANTIDRUG LEGISLATION IN CRIMINAL LAW OF SLOVAKIA 50Stupnik Ya.V. ANTIDRUG LEGISLATION IN LIGHT TRANSFORMATION POLICY AGAINST DRUG CRIME 51

SECTION 9CRIMINAL PROCESS AND FORENSIC SCIENCE; FORENSIC ExAMINATION; OPERATIVELY-SEARCH ACTIVITYBatiuk O.V. USING OF THE SPECIAL KNOWLEDGE FOR REALIZATION OF SEARCH IN THE PROCESS OF INVESTIGATION OF CRIMES PERFECT IN PENITENTIARY ESTABLISHMENTS 52Vapnyarchuk V.V. THE ESSENCE OF AN ACTIVE AND PROACTIVE OPERATION OF THE COURT IN CRIMINAL PROCEEDINGS 53Getman G.M. MODELING OF PERSONALITY OF UNKNOWN CRIMINAL DURING JUDICIAL-PSYCHOLOGICAL RESEARCHES 53Hryndei L.M. STRUCTURAL ELEMENTS OF MECHANISM FORENSIC EXPERT ACTIVITY 54Zhurba A.I. THE PURPOSE OF CRIMINAL PROCEEDINGS IN UKRAINE: THE THEORETICAL PROBLEM OF CONTENT 55Zablotska O.Yu. SOME ASPECTS OF DETECTIVE AND SEARCH CHARACTERISTICS OF LEGALIZATION THE ILLEGALLY OBTAINED PROFITS 55Kravchenko N.S. WORK OF THE COURT, PROSECUTOR AND INVESTIGATOR OF PROVING A CIVIL CLAIM IN THE CRIMINAL PROCEEDINGS 56Lіashuk O.M. STAGES OF HISTORICAL DEVELOPMENT THE PROCEDURE OF INTERNATIONAL WANTED OF PERSONS 56Melnyk O.V., Trop O.V. THE CONSTITUTIONAL PRINCIPLE OF THE RIGHT TO PROTECTION AND ISSUES OF LEGAL STATUS OF THE DEFENDER 57Trofymenko V. ACTUAL QUESTIONS OF THE CRIMINAL PROCESS OF UKRAINE 57Shylo O.H. FEATURES GROUNDS OF PREVENTIVE MEASURE IN CRIMINAL PROCEEDINGS 58

SECTION 10JUDICATURE; PUBLIC PROSECUTION AND ADVOCACYZaborovsky V.V., Hеchkа K.V. PROBLEMATIC ISSUES OF THE DEFINITION OF «LAWYER CONFIDENTIALITY» 60

SECTION 11PHILOSOPHY OF LAwLutskyi A.I. ESSENTIAL AND FUNCTIONAL CHARACTERISTICS OF LEGAL IDEOLOGY 61

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Section 1theory and hiStory of the law and the State;

hiStory of political and legal doctrineS

SOCIAL AND CULTURAL CONTExT OF LAw SCHOLAR’S ExISTENCE (THROUGH THE ExAMPLE OF S.V.PAKHMAN’S BIOGRAFY)

Abukhin R.D.,PhD student, Department of Theory and History of State and Law of

International University of Humanities

The article examines the role of social sphere as an instrument in forming of personality and professional activity of prominent scientist-legist Semen Pakhman (1825-1910).

S. Pakhman private document collection was found in Odessa oblast state archive. The docu-ments confirmed that Semen Pakhman was born in Odessa to noble family of Vikentiy Pakhman – teacher of Odessa Lyceum after Richelieu. Ge-nealogic tree and other documents show that the family was large and united. Children were well-bred and high educated, especially in arts and hu-manitarian sphere. They were bringing up in the context of high morality and human dignity.

Family ambiance was extremely important for Semen Pakhman and his vocation. Actually,

he made his future professional choice under fa-ther’s influence. Vikentiy Pakhman taught Roman Law in the Lyceum. Semen Pakhman graduated law department of the Lyceum and law faculty of Moscow University.

Analysis of Semen Pakhman’s private corre-spondence revealed the fact that he considered father’s ethical guidelines till father’s death. He consulted with his father on controversial issues related to career, academic and pedagogical ac-tivity. S. Pakhman devoted his magister thesis to his father.

The family ambiance and education were the main factors besides university studying in the process of personal formation of Semen Pak-hman.

THE HISTORICAL ASPECT OF FORMATION AND DEVELOPMENT OF FREE LEGAL ASSISTANCE IN UKRAINE

Lysenko A.M.,Associate Professor of public law

subjects, Cherkasy National University of Bohdan Khmelnytsky

Bohma A.V.,Chief Specialist of Counsel

of the Pension Fund of Ukraine in Cherkasy, Cherkasy region

The institute of legal aid had gone a long and difficult way. In the initial stages of the legal pro-tection of nature was the unofficial help. Gradu-ally, with the advent of written law became a professional occupation. During the Polish-Lithuanian Commonwealth Institute emerging

era of professional advocacy. The bar has been the subject of research scientists, including E.V. Vaskovskiy, A.F. Kistyakovsky, S.I. Victorskiy, A.F. Koni and others. According to the Lithu-anian Statute providing free legal assistance to people who could not defend themselves de-

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fined as required, including anticipated special government advocate for widows, orphans and the poor people. The mechanism of protection against unfair was given out, and then apply for free assistance were not numerous. With the ab-olition of serfdom in 1864, the judicial system was reformed. Democratic principles of advoca-cy were practically implemented. The problem of low-quality provision of free legal services is particularly acute after the nationalization of the Bar in 1917. A wide range of people who re-

ceived a free protection contributed to the abuse of law. Funding of legal aid from the state bud-get was insufficient. It was ineffective as it was placed depending on the state of human rights defenders, while the lawyer must be indepen-dent and oriented to the legal protection of the individual. Holding current democratic reforms including judicial indicates significant steps to ensure the protection of public rights. The prob-lem of the practical realization of the right to quality legal aid remains valid.

DEONTOLOGICAL PRINCIPLES OF THE POLICE ACTIVITY AND THEIR CONSOLIDATION IN INTERNATIONAL

LEGAL DOCUMENTS

Gida E.A.,Head of the Department of Theory and History of State law

National Academy of Management

The international cooperation of law en-forcement agencies has formed a certain system within which the issues of observance of human and civil rights and freedoms, problems of crime prevention, counteraction to criminality and the standards of treatment of offenders are primar-ily resolved. This cooperation is carried out both on the inter-governmental and non-governmental bases, often through direct contacts between po-lice associations and services of different coun-tries.

In many countries an important place among the issues that are difficult to solve is held by the problems of social control of police behavior from the standpoint of professional ethics. The problems of proper police behavior are consid-ered by a special discipline known as police de-ontology.

As the practice of formation and development of the system of deontological rules of police ac-tivity and the interpretation of these rules in the second half of the 20th century and at the be-ginning of the 21st century shows the problems of police deontology are increasingly solved in the framework of international integration. Just as these processes are actively implemented in

medical deontology (for example, international congresses of medical deontology), the need for international cooperation on deontological prin-ciples of police activity in the field of law and order is reasonable.

The fact that professional macro-groups of po-lice officers in different countries of the world ob-tain qualities characteristic of any similar supra-national social community indicates the presence of international non-governmental organizations uniting various categories of police officers and policemen in general. Such organizations include the following.

This article analyzes the state of legal regu-lation of police activity in the field of law and order. The basic provisions consolidated in in-ternational legal documents and determining the status of the police and the basic principles of its organization, submission, etc. are discovered. It is specified that the implementation of interna-tional and European standards into the national legislation of Ukraine and their realization in the practical activity of Ukrainian police will have an influence not only on the level of development of the rule of law but also the improvement of the international and European image of our country.

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This article analyzes the legal reality as a cat-egory of legal science. Defined by the physical and social reality. Small description of different aspects of reality (cultural, social, ethical, his-torical, psychological, physical, artistic, moral and legal). The nature, essence and characteris-tics of legal reality as a scientific category. It is understood that the structure of the legal reality is the unity of the three levels: the idea (actually natural law, principles of law, legal values, legal theory, the scientific doctrine of legal thinking, legal ideology, legal culture, legal education, and the unity of rights and duties of legal) law (actu-ally positive law, regulations, regulations, legal institutions, legal procedures, procedural forms, legal, legal status, legal regime and regulatory

agreement); legal life (entities, the relationship, the interaction between the subjects of relation-ships, justice, legal mentality actually legal ac-tion, positive and negative behavior subjects of legal, law enforcement, legal experience and le-gal practice). Available wide, narrow and integral legal definition of reality that exist in legal sci-ence. Suggested to the author’s definition of legal reality as a complex multidimensional phenom-enon ideal reality, which is the harmonious unity of the internal (subjective) and external (objec-tive) aspects of being right and consists of basic legal entities and other derivatives of legal phe-nomena against objectively exist in the field of legal matter and have an effect on the participants of public relations.

LEGAL REALITY: CATEGORICAL ANALYSIS

Karpichkov V.A.,Postgraduate student of the theory of law and state

faculty of Law,Kyiv National University

named after Taras Shevchenko

THE ONTOLOGICAL PLURALISM OF YE. ERLIH’S LAw

Koban O.H., Postgraduate of the Faculty of Law

Kyiv National University named after Taras Shevchenko

In O.H. Koban’s paper the views of wellknown Ukrainian lawyer Ye. Erlih about the nature of law and its multidimensional nature are investi-gated. To this end, Ye. Erlih’s famous paper “No-tions of the sociology of law” is analyzed. Atten-tion is focused on the following issues: definition researcher Ukrainian law as the existence of three autonomous but not sealed order; product of so-cial construction; social phenomenon, organiza-tion.

Note that the right Ye. Erlihom treated exten-sively with reference to its origin, the meaning and nature, coercive. Pointing to the law as a so-cial phenomenon, Ukrainian lawyer concludes that any branch of science on the law relating to social sciences. The science of law is part of theo-

retical science of society – sociology.Describing the law as a multifaceted phenom-

enon Ye. Erlih indicates the logical unity of the legal system; but the existing differences in the nature of law in specific historical eras, rights in ancient and modern law.

Scientists examining the sociological theory of Ye. Erlih’s law emphasize the holistic vision of his right, the recognition of the unity of actual and normative, lack of boundaries between law and social reality of norms and rules, study ab-stract of the thesis of the unity of law and society, which led to his legal pluralism.

Ontological pluralism of Ye. Erlih based on the definition of law as a phenomenon is closely associated with a particular legal reality, which

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is the source of consciousness and the individual and social life and state power. Ontological plu-

ralism of Ye. Erlih tunes with the modern view law knowledge.

SOURCES OF LEGAL REGULATION OF LAND RELATIONS IN THE HETMANATE IN DURING THE SECOND

HALF VxII-FIRST HALF VxIII CENTURY

Кulishenko O.Yu., Postgraduate student of the department of History

of State and Law of National University named after Taras Shevchenko

Legal regulation of land relations – a law reg-ulating social relations on the possession, use, disposal of land.

The basis of the legal system of Ukraine was the common law. It continued to operate in its ter-ritory at this time.

Subsequently gradually from late XVII centu-ry customary law norms absorbed Hetman right, and then completely superseded by Russian law.

It should be emphasized that this does not mean they lost their regulatory actions and cessa-tion of use in the Hetmanate. It Ukrainian norms of customary law formed the basis of the Hetman of legislative process and then entered the codifi-cation collections of ukrainian law with Magde-burg rights or Helminskym law and Lithuanian Statute in 1588.

According to the Lithuanian Statute of 1588 communal land tenure for the duration of its op-eration was almost eliminated. The owners of the land could only be “free men noble birth”. Earth gentry divided into generic and seniority. Ances-tral land passed by inheritance only by law. In case of sale of such land relatives enjoyed prefer-ential right of purchase. Seniority – the land that eventually equated with other forms of land own-ership, and their owners have the right freely to dispose of them. Charter provided for the inviola-bility of property rights. property nobles, in par-ticular, could not be seized without a court order.

Another important source of law Ukrainian state, regulated land relations are collections of

Magdeburg Law – “Saxon Mirror” and “order”. However, in the first half of the XVIII century resulting intertwining activities of local and reg-imental-centesimal judiciary, which actually pre-vailed Cossackofficers that strongly limited the urban self-replacement of Magdeburg law stat-ute.

Exploring these collections law can establish the fact that some sections are devoted to the regulation of land relations are absent. The rules relating to land issues found in different sections of the text.

In addition, the Lithuanian Statute, collections Magdeburg law, common law contained a differ-ent, and in some cases contradictory to each other regulations governing land relations.

Given the above, it should be noted that an important role in the regulation of social rela-tions in the second half of XVII – the first half of XVII century. in the Hetmanate played hetman contracts with Moscow State. There were valid sources of law of the Polish-Lithuanian origin: princely and royal charters, decrees of the Diet, collections and statutes, including the Lithuanian Statute and collections Magdeburg rights. They confirmed the legitimacy of the hetman univer-sals and courts instructions.

These sources provided the foundation for the establishment of the legal system in the Ukraini-an Hetman state in general and in particular laid the basic provisions of the regulation of land rela-tions in Ukraine.

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Scientific article is devoted to the necessity of introducing in higher educational establishment of juridical direction separate discipline under the title “Juridical Conflictology”. It should be an integral basic element for formation of pro-fessional excellence of lawyer, thoroughly and across-the-board to clarify the topical issues of juridical conflictology and its development would promote the work-out of united and uni-formed legal ways for preventing and solving of juridical conflicts.

The introducing of juridical conflictology as a separate discipline is conditioned by social ne-cessity of preparing new specialist-lawyers for public and private-law spheres.

Everyday life wreathes witnesses of many dif-ferent social conflicts that are in the sphere of le-gal regulation and are solved by juridical means. Therefore, court organs and law enforcement organs and also professional lawyers are devot-ing the greater part of their activity to analysis, searching, solving and prevention of conflicts. But above mentioned activity needs not only stan-dard set of juridical knowledge, but also specific skills, experience and methods of management, solving and preventing of juridical conflicts. The whole spectrums of such knowledge can be given

only by one separate science which would be spe-cialized exactly on the issues of juridical conflic-tology.

Taking into account the recent events that had happened in Ukraine and the future European de-velopment it is not difficult to predict the conduc-tion of full complex of actions about reforming economical, political, legal, educational and other spheres of life. Such process would be followed by many misunderstandings that would be prob-ably to solve and overcome only with the help of methodologically correct complex of turnaround means in a combination with practical achieve-ments of general and juridical conflictology.

Herewith the lion’s share of work of lawyers ought to be focused on the issues of preventing the conflicts but not only on the issues of solving of juridical conflicts. Not to give the conflict to appear is much easier, painless, and economical than to solve it.

Accordingly, the introducing in to curriculum new discipline “Juridical Conflictology” is deter-mined by the needs of social and legal practice, the necessity of the development of methodology and methods for preventing of juridical conflicts, preparing of specialist-lawyers who can consider the essence and nature of conflicts.

JURIDICAL CONFLICTOLOGY: PUBLIC NEED AND PROSPECTS OF STUDY SUBJECTS

Peresh I.Ye.,Candidate of Law, Senior Lecturer of

Department of Theory and History of State and LawSHEI “Uzhhorod National University”

Zan М.І.,Faculty of Law

SHEI “Uzhhorod National University”

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Section 2conStitutional law; municipal law

UKRAINIAN CONSTITUTIONALISM: HISTORICAL FOUNDATIONS

Byelov D.М.,Doctor of Law, Professor of Constitutional Law and Comparative Law

SHEI “Uzhhorod National University”Yakimovich Ya.V.,

Faculty of Law SHEI “Uzhhorod National University”

Today the Ukrainian constitutionalism is in deep crisis, as evidenced by a number of impor-tant features. Ongoing heated debate on funda-mental issues of constitutional creation. First, the constitution which the country needs today: talk about the next stage of constitutional moderniza-tion, or be completely restarted matrix consti-tutional state. Second, both accept the constitu-tion – Parliament or a referendum? Third, what should be the model at present political regime that guarantees against usurpation of power? The persistence of these issues means exhausted the resources of post-Soviet constitutionalism. How-ever, for Ukraine, for politicians – is a challenge that requires the continuation of broad constitu-tional debate with the perspective of construct-ing a new constitutional order. It is necessary to finalize the post-Soviet version of constitutional-ism and move to modern standards of European constitutional state.

The historical aspect is associated with the emergence of the concept of constitutionalism. It is important in view of the situation on the factors that influenced the process of its development and implementation.

We believe that the concept of constitution-alism cannot be considered a primary or even alone, because it is derived from the term “con-stitution” as in the etymological and in scientific and theoretical terms. Constitution – the social contract that captures forms, methods, principles, bases, rights, duties and other interconnected re-lationship between a state and society, and their implementation.

Formation of constitutionalism accompa-nied viewing the relationship between church

and state, the secular and religious spheres of power relations. Because spiritual dictates of the church maintained centuries-old tradition and religious dogma were dominant, any oppo-sition to the state turned into conflicts on reli-gious grounds. This point was characteristic of the early bourgeois revolutions. In particular, the Dutch revolution of the sixteenth century took the form of the liberation struggle of the Spanish colonies in Europe under the banner of Calvinism vs. monarchical feudal despotism of the Spanish Catholic invaders.

Ukrainian constitutionalism at all major stages of development characterized by perception of political and legal doctrines of the past and the achievements of world constitutional thought, but was relatively independent character and was very heterogeneous both forms of the constitution and other constitutional documents (contracts, universal, etc.) as well as its content: exclusive of globalization to the extreme regionalism, in an-ticipation of a republic and monarchy, unitary and federal states and so on. So we can сharectarise constitutionalism as a historical concept, high-light features of its formation and development process of state of European countries; This made it possible to analyze of Ukrainian constitutional-ism in a short historical overview (through a pro-cess of formation and development of Ukrainian statehood at various stages). Thus, the features of the modern Ukrainian constitutionalism: 1) con-stitutionalism is derived from the Constitution and there in the course of its implementation as a fundamental law; 2) constitutionalism histori-cally conditioned, has a set of stages in its devel-opment; 3) constitutionalism manifests itself in

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ideological terms, it is often attributed to a large number of democratic tenets; 4) constitutional-ism – a process that occurs in the organization

and building state institutions forming the gov-ernment; 5) constitutionalism – the aggregate concept that includes theory and practice.

PROTECTION OF HUMAN RIGHTS AND FREEDOMS BY THE CONSTITUTIONAL COURT OF UKRAINE

Karelova D.А.,Applicant of the Department of Constitutional Law

and Comparative Law,Faculty of Law,


Understanding the importance of independence of Ukraine for the Ukrainian is impossible with-out clarification of the role and participation of the Ukrainian state in the life of every human and ev-ery citizen. This role can be defined most clearly by analyzing the issue of state rights and freedoms.

The current phase of reform of the political and legal systems of Ukraine is connected with the need for continued strengthening of democratic institutions that guarantee the development of the country as a social, democratic and legal. Means to ensure the reality of democratic transforma-tion is the institution of constitutional justice as a guarantee of all subjects of public relations in accordance with the national constitution.

Among scientists distributed various ap-proaches to the content and nature of the Con-stitutional Court of Ukraine, as well as its role and limits of influence to ensure the rights and freedoms of man and citizen, to prevent their violation and to ensure their recovery otherwise. Thus, in the present problem jurisprudence of the Constitutional Court of Ukraine as the guarantor of the rights and freedoms of man and citizen has not been fully investigated.

The theory of constitutional justice in Ukraine is in its infancy. The reason, obviously, is the relative newness of the institution for the legal system of Ukraine. Although the current process awareness of the need to ensure the Constitution of Ukraine and the rights and freedoms of human and citizen led to a revitalization of research is-sues of constitutional justice.

Provision of the Constitution of Ukraine is the key to strengthening the regime of constitutional

legality, the guarantee of the constitutional sys-tem, constitutional rights and freedoms. The role of the Constitutional Court of Ukraine in protect-ing the rights and freedoms defined its powers. Such powers arising from the content of the oath of judges of the Constitutional Court of Ukraine protect the constitutional order of the state, con-stitutional rights and freedoms of man and citi-zen (Article 17 of the Act), Chapter 12 “Features proceedings in cases concerning compliance with the provisions of applicable regulations re-ferred to in paragraph 1 of Art. 13 of this law, constitutional principles and norms regarding the rights and freedoms of man and citizen”, as well as Chapter 13, “Features of the proceedings in cases concerning the constitutionality of legal acts which regulate the procedure for exercising the constitutional rights and freedoms of man and citizen of the Law of Ukraine “On the Constitu-tional Court of Ukraine”.

Analyzing human rights activities of the Con-stitutional Court of Ukraine, we can conclude that the Constitutional Court of Ukraine decides that aim to guarantee the consistent implementa-tion of human rights and the elimination of ob-stacles to the implementation of one of the most important constitutional rights – the right to ju-dicial protection, to legal assistance. The great-est number of decisions taken by the Constitu-tional Court of Ukraine concerning protection of citizens’ rights to social protection and ensuring adequate standard of living. Protecting labor and social rights, the Constitutional Court of Ukraine, above all, the constitutional provisions on the so-cial character of our country.

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AS FOR THE CONCEPT AND NATURE OF TERRITORIAL COMMUNITIES (GROMADAS)

Kulakova E.V., Candidate of law; docent of Constitutional and International law cathedra,

faculty of Law and Economics,Donetsk National University

Briechko A.S., Student of faculty of Law and Economics,

Donetsk National University

In the present article authors considered the territorial community (gromada) as the primary subject of local self-government. The problem of incomplete legal definition of the territorial community’s status identified. The legislative definition of the territorial community’s status as the primary subject of local self-government is considered. Authors analyzed scientific works of Ukrainian and foreign scientists, which sug-gested approaches to understanding the concept of the territorial community, its nature, legal status. Authors considered positive and nega-tive features of the definitions. The history of this issue is analyzed too. It’s found, that the no-tions of territorial groups are not identical in all countries: in some concepts political approach dominates in the understanding of the commu-nity, in other countries – social – psychologi-cal approach dominates. Authors considered scientific works of lawyers from Western Eu-

rope which were published in the middle of the twentieth century (J. Hiller and K. Jonassen). They first fleshed out the common signs of ter-ritorial communities, which are the same for all regional groups in Europe and for other parts of the world. Also authors analyzed the signs of the territorial community, proposed by Ukrainian scientist M.O Baymuratov. The main features of the territorial community are determined: 1) territoriality, associated with dislocation of lo-cal self – government; 2) integrative (according to this feature community bases on association of all residents); 3) intellectual (which bases on common interests of all residents); 4) the abil-ity to act on a corporate basis, when community implement the local self-government. On the basis of the definitions and signs of the territo-rial community authors set out the conclusions and suggested their own definition of the territo-rial community (gromada).

EFFICACY FORMS OF INFLUENCE OF THE VERKHOVNA RADA OF UKRAINE ON HUMAN RIGHTS

ON THE PATH OF EUROPEAN INTEGRATION

Melekh B.V.,PhD in Public Administration, Senior Lecturer of Law,

Lviv Institute of Interregional Academy of Personnel Management

Availability of rights, freedoms and civil rights, the rule of law and civil society, the proper level of protection remains current issues. Euro-pean vector of Ukrainian statehood causes the close cooperation between the government of Ukraine to the international legal subjects. Im-portant role in these relationships given the Verk-

hovna Rada of Ukraine on Human Rights.The international experience of social development clearly shows that building democracy is impos-sible without recognition of rights as the highest social value. Today, human rights have become the main focus of state and society, a manifes-tation of true democracy. Because they set the

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boundaries of the state, is not allowed unwarrant-ed invasion of the state in the sphere of personal freedom. They constitute barriers absolute power and arbitrary government agencies, define the re-lations between human society and the state, their responsibility, which entails the development of a democratic state and society, their stability and normal functioning. Therefore, in the current cir-cumstances, we must recognize that the provision of human rights is a prerequisite for sustainable development and strategy of our country on dem-ocratic principles, the establishment of safeguards against a return society back to totalitarianism, a key factor in building our democratic, legal and social state. To this end, Ukraine should function properly various human rights institutions. And is the most important part of them is given to the Commissioner for Human Rights, which, thanks to its special status, broad powers in the field of human rights democratize relations “state – citizen” actively influences the dynamics of the formation of the country as a democratic state, it helps the formation of civil society. The idea of protecting the rights and freedoms was correct at any stage of development. In the Constitution of Philip Orlik 1710 contained an article on the protection of the integrity of liberties, property rights Cossacks. The Constitution declares the idea of restoring “all natural rights and equal-ity”. The protection of human rights is relevant today. She actively studied by scientists. This is-sue is devoted to a separate room of the popular magazine “Ukrainian Lawyer” which contained a lot of interesting facts and opinions, and once again highlighted the problem of business om-budsman. Ensuring the rights of appeal to the Verkhovna Rada of Ukraine on Human Rights is one of the important safeguards to protect the rights and freedoms in a state of law, important legal institutions, the potential is certainly not exhausted and not yet sufficiently understood. Every year the citizens of Ukraine are increas-ingly using it right by sending thousands of emails Ombudsman. Regarding the scope of the Ombudsman, it is a relationship arising from the exercise of the rights and freedoms of man and citizen only between a citizen of Ukraine, regardless of its location, a foreigner or per-son without citizenship who stay in Ukraine,

and public authorities, local governments and their officials and officers. As for the forms of the Commissioner that it can respond wool are views that made it to the state authorities, place of local government, NGOs to enterpris-es, institutions and organizations regardless of ownership, their officials and officers to take ap-propriate action within a month period and to eliminate violations of the rights and freedoms of man and citizen. First, it does not indicate that the binding of these persons considering such acts responses that can lead to the fact that they will not be considered, and therefore – not be eliminated violations of the law, leading to a decrease in the authorized authority and reduc-ing the importance of this institution. Second, nothing is said about the acts of the authorized representatives of the reaction. Thirdly, it is not about the abolition of unlawful decisions and government entities. Without the actual reno-vation in violations of citizens’ rights, foreclo-sure satisfy compensation, damages, including moral, as well as the prosecution. Fifth, does not envisage the possibility of contested submis-sions authorized. The task today is to identify as systemic problems, which gives rise to numerous requests of citizens of Ukraine to the European Court of Human Rights, and in finding a most ef-fective ways to address them in terms of appli-cation of the European Court of Ukraine in the legal system, since the rate and is one of the main criteria of the state of human rights in our coun-try. One of the most important activities of the Commissioner of Human deny is exercising par-liamentary control over the observance of human rights to liberty and shortcomings. Significant flaws such as gaps in the legislation on manda-tory review response Ombudsman acts in respect of acts authorized representatives respond also to abolish the illegal decisions of the authorities and entities not provide an option appealed submis-sions authorized and finally – all invisible to the actual legislation renovation in violations of citi-zens’ rights, foreclosure compensation, damages, including moral, as well as the prosecution are the main problems that need urgent clarification on the legislative level. Effective form of the Om-budsman is appealing to state and local govern-ments, followed by the appropriate response.

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THE THEORETICAL PROBLEMS OF RESTORING FORCE OF LEGAL ACTS AS A RESULT OF DECISIONS

OF THE CONSTITUTIONAL COURT OF UKRAINE

Riznyk S.V.,Candidate of Law,

Senior Lecturer of Constitutional Law DepartmentLviv National University after Ivan Franko

This article is devoted to the problem of re-storing force regulations, including laws and the adoption of decisions of the Constitutional Court of Ukraine. Substantiates the practical necessity of output from the level of discussion. Have ar-gued the existence of different bases to which the various legal implications of decisions of the Constitutional Court on the constitutionality of the (unconstitutional) laws. In particular, analysis of the legal consequences of a decision on the un-constitutionality of the law (in whole or in part) from the substantive or procedural grounds. The analysis of the decisions of the Constitutional Court on the accuracy of their language in this context. Suggestions to address problems raised in the theoretical and practical levels.

The discussions about the legitimacy of a

number of changes and additions to the Ukrainian Constitution, it’s low efficiency leave it relevant to virtually unanimous position of representa-tives of various sectors of national society on the need for continued reform of the Constitution. Thus 2014 marked a new stage in the constitu-tional process, with high expectations not only of the Ukrainian people but also of the international community.

The consideration of herein conclusions can be used in the practice of the Constitutional Court, as well as the implementation of scientific development in the future, would solve a number of long-standing legal both theoretical and prac-tical problems, which in turn will promote legal certainty in Ukraine as one of the key signs of the reality of the rule of law.

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PERSONAL DATA OF PATIENT

Buleca S.B.,Candidate of Law, Senior Lecturer of

Department of Civil RightsSHEI “Uzhhorod National University”

Section 3civil law and civil proceSS; family law;

international private law

In this article probed question of defence of personal information patients that refuse of pa-tient about processing of the own personal data. It is discovered that for today the clear mechanism of protection of the personal data of patient and consequences of refuse of patient absents from processing of the personal data.

A law «The protection of the personal data» sub-stantially complicates adjusting of these relations. For example, obligates to reveal to the subject of the personal information about plugging in the base of him the personal information. In that time in ac-cordance with a law any processing of these data and so is possible upon receipt consent of subject to such treatment. Remains incomprehensible, what expedience of such double report which is carried out exceptionally in a writing form is in.

Establishment of guard of health processes information of patients for providing of realiza-tion of relations in the field of health protection. He can have the three appearances of bases of the personal information with subbases, namely: 1) base of these personal employees; 2) base of these personal patients; 3) base of these personal partners – physical persons.

With making alteration in Law treatment and forming of bases of the personal information takes a place at the first visit of hospital. Conse-quently, at the first visit, serves by the applicant of resume on substituting for vacant position or signing of any agreements about collaboration a physical person gives the representative of medi-cal establishment or privately practicing medical staff, greater part from the noted higher personal information. Thus there is a capture of the per-sonal data of concrete man. There is treatment and systematization of the got information at filling of medical, skilled or book-keeping-legal document, and also bringing of information in a general catalogue is forming of base of the per-sonal information of certain direction.

That, all of establishments of health protection regardless of patterns of ownership and depart-ment submission, and also privately practicing medical workers are the proprietors of bases of the personal information.

One of main problems of register of the per-sonal information of patient is guaranteeing of defense of information about patients in a data-base.

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FEATURES OF THE SUBJECTIVE CIVIL RIGHTS ON DESIGN PATENT

David L.L.,Applicant of Research Institute of Intellectual Property of

National Academy of Sciences of Ukraine

Patenting inventions is the factor that provides significant competitive advantages to business of inventive activity and the number of appli-cations and patents are an important indicator of the effectiveness of such activities. The de-mand for patent protection of inventions in the world increases every year, attracting more and more financial and human resources in the field of protection of intellectual property in parallel increases the volume of international transfer of technology through patents.

With this in mind, it more urgent questions about the origin, protection and subjective civil rights to a patent for industrial design, determi-nation of the legal facts that are the basis for the emergence of these subjective civil rights. Today

one of the important places in the legal academic literature is the question of the conditions of the definition of subjective civil rights, legal facts as the basis of subjective civil rights to a patent for industrial design in Ukraine.

Subjective civil law has its own structure, which includes a set of legal opportunities pro-vided legal norm particular subject. With this in mind, the subjective right as a set of equivalent possibilities, not just as a set of powers.

Based on the analysis of the current legislation of Ukraine determined necessary: to provide in the Civil Code of Ukraine list of conditions and the time of subjective rights to a patent for indus-trial design, to amend the Civil Code of Ukraine and the Labour Code of Ukraine.

FEATURES OF PROOF IN CASES ARISING IN THE PROTECTION OF HONOR, DIGNITY AND BUSINESS REPUTATION

Lezhukh T.I., Attorney-at-law, Adjunct,

Department of civil process, National Academy of Internal Affairs

The paper given by the problem of the judi-cial practice related to evidence in cases of honor, dignity and business reputation.

The author argues that relevance of the study determined the conditions present and character-ized by a number of reasons: there is active devel-oping of civil society institutions and the level of legal awareness of the population is increasing. Also citizens of our country now are actively use an opportunity to learn and implement the experi-ence of citizens of other countries, in particular in the field of law enforcement. It is on the basis of international experience have learned to use the Ukrainian law on the protection of honor, dignity and business reputation.

In addition, the subject of this study, namely, evidence and proof undoubtedly occupy an im-portant place in any litigation, including those that occur within the civil justice system. There-fore, understanding the nature and essence of proof in civil cases, which include cases on the protection of honor, dignity and business reputa-tion is very important to maximize the effective-ness of the judicial protection of rights, freedoms and interests of the individual as a whole. Author points out an important issue for the Protection of honor, dignity and business reputation are blurred the category of value judgments in cases involv-ing the protection of honor, dignity and business reputation.

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HISTORIOGRAPHY CONCEPT OF RESEARCH OF INSTITUTE OF NOTARIES IN PROTECTION SYSTEM

AND FREEDOMS AND CIVIL RIGHTS

chizhmar K.І., Candidate of Law, Associate Professor,

Doctoral student of constitutional law and comparative law Faculty of Law


There is no doubt a special place in the imple-mentation of human rights and law enforcement functions in the state plays Institute notaries. Pro-tecting the rights and interests of citizens and le-gal persons, prevent offense is the main task of the notary, the credibility and value of which is steadily increasing in the current context of radi-cal reform of social and economic relations. Its activity influences the different sides of the state and public life in Ukraine.

In order to create a reliable modern scientific foundations of constitutional and legal status of notaries in the mechanism of protection of the rights and freedoms of man and citizen expedi-ent historical overview of the specific study of a particular legal issue of constitutional and legal principles of organization and activities of the In-stitute of Notaries , the allocation of certain pri-ority research doctrinal formulation provisions on which was formed and pre-existing and ap-plicable laws. This will highlight certain trends in both legal doctrine and legislative activity, which results in a radical improvement of the current legislation of Ukraine, including the codified content outline some of the problematic issues while clarifying their solutions in different his-torical periods of the order to avoid future nega-tive and adopt a positive experience. That con-sideration historical experience doctrinal studies certain legal phenomena allows you to create the perfect modern scientific basis for improving the constitutional and legal status of law and human rights bodies.

Create historiography of any branch of knowl-edge is an indicator of the maturity of a particular

science, an essential element of its identity: trac-ing the historical development of the notary, the scientists are able to understand more deeply its current state, problems and contradictions more clearly seen perspective. So natural is that with the progress of science notaries and notary pro-cess and increasing interest in its history, and the emergence of historiographical works are evi-dence of this.

“Postmodern era” has caused a natural trans-formation of the landscape disciplinary legal science. This particularly affected the so-called reflective subjects, the object of which it speaks of knowledge, process knowledge, intellectual process in general.

Comparative analysis of disciplinary histori-ography Institute of Notaries promote a vision of the whole unit quality legal disciplines and their hierarchy in the system of legal science, the humanities in general, overcoming “disciplin-ary barriers” in research activities of lawyers, predictability transformation processes, finding different options interdisciplinary and multidis-ciplinary synthesis within the specialization of legal research institute on notaries.

In our opinion, historiography Institute of No-taries – a collection of studies in law, a set of le-gal work, having an inner unity, devoted to the origin, formation and development prospects of the Institute of notaries in a particular historical period, reflecting the evolutionary process of ac-cumulation and improvement of legal knowledge and are logically coherent and consistent system of legal sources of scientific knowledge about the institute notaries.

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LEGAL ASPECTS OF FUNCTIONING OF DERIVATIVES

Zgama A.A.,Candidate of Law sciences,

Associate Professor of department of civil and economic law and processof International Humanitarian University

Section 4economic law; economic procedural law

Development of derivatives market takes place in the imperfect and unsystematized right field with absence of effective mechanism of his adjusting. In particular, in modern terms a ques-tion appears why in relation to a the same process a legislator applies terms «securities», «deriva-tive financial instruments», «derivates» and oth-ers like that.

The purpose of this publication is an exposure and decision of complex of problems, related to determination of legal nature of derivatives, ex-posure of failings and blanks, in the legal adjust-ing of this institute and directions of his subse-quent development.

Scientist’s opinions on legal nature of deriva-tives investigate the economic aspects of this phenomenon, here is unsolved terminology in-consistency of the noted concepts both on legis-lative and at the level of scientific developments.

The legal adjusting of derivatives is made by 3 groups of normative sources:

1) base laws (Civil code of Ukraine, Law of Ukraine «On securities and fund market») – se-

curities equate derivatives;2) Internal revenue code of Ukraine and some

normative acts – apply the category of «deriva-tives»;

3) international standards of the financial re-porting – apply a concept of derivatives.

A conclusion is done, that the fragmentary le-gal adjusting of market of derivatives, which is based on contradictory conceptual approaches in relation to determining their location in the sys-tem of economic relations is. In this context of decision of the outlined problem it can be car-ried out in two ways: by making alteration in the Civil and Economic code of Ukraine or passing a separate act which would determine the types of these financial instruments and would regulate the market of derivative financial instruments. Thus have argued that in this case one electing of afore-named directions of modernization of the Ukrainian legislation is not eliminated by pos-sibility of application other, but only will create reliable subsoil for development of derivatives market.

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In this article we have formulated specially legal approach to the definition of the principle of good faith because its use or neglect cause legal conse-quences. The importance of this study is proved by the fact that the principles of law are not refutable and are constant, since they built the legal system.

The content of the principle of good faith is determined by the terms of the contract and the specific circumstances of the particular case and is characterized by two elements:

• pre-contractual duty – conscientious behav-ior during the negotiations;

• post-contractual duty – good faith of the par-ties during the signing of the contract, the imple-mentation of its provisions and termination.

In this paper we have considered both elements in the specific examples of proposals designed to

improve the current legislation, taking into account the positive experience of European countries.

Implementation of subjective rights in the face of participants of franchise relationships should take place with the mandatory and complete ac-count of all elements of the principle of good faith, which requires the coordination of mutual rights and obligations. Legislative upholding of the principle of good faith and integrity in its var-ious forms becomes a criterion for determining the presence or absence of abuse of the law.

In the conclusion of the article, we have for-mulated proposals as amendments to existing legislation that will positively affect the devel-opment of a national franchise market and rising popularity among Ukrainian franchises, in case that they are competitive.

THE PRINCIPLE OF GOOD FAITH IN THE CONCLUSION AND IMPLEMENTATION OF THE FRANCHISING AGREEMENT:

ECONOMIC AND LEGAL APPROACH

Kariakina O.Y.,Aspirant of the Department of Civil and labor law

State University «Kyiv National Economic University named after Vadym Hetman»

STATE REGULATION OF PRICES FOR MEDICINAL PRODUCTS

Korotych Ye.O.,Graduate student of Institute of economics and legal researches of


State regulation of prices is one of the im-portant instruments which regulate circulation of medicinal products. During the independent Ukraine legislation on price regulation constantly change. First of all it depends on government de-cision due to price regulation and overall policy. That is why the article investigates state regula-tion of prices for medicinal products both in the historical and legal aspects, and in the context of the present legal regulation.

The author pinpoints a set of problems that manufacturers of medicinal products have to face due to price regulation. For example, there are dif-ferent conditions for domestic and foreign manu-facturers of medicinal products; non-availability of a unified list of medicinal products prices on

which are subject to state regulation etc. The ar-ticle also attends attention to the experience of foreign countries in relation to price regulation for medicinal products; especially the author pin-points on World Health Organization`s and Com-mission of the European Union documents.

Based on the research the author of the article makes suggestions for improving state regula-tion of prices for medicinal products. Particularly proposed implement state regulation which will be based on balanced wholesale prices; establish equal conditions for domestic and foreign manu-facturers of medicinal products and update list of medicinal products prices under the World Health Organization’s and Commission of the European Union documents.

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FORMS OF PROTECTION DIGNITY BY wORKER

Bailo O.V.,Postgraduate student of Department of civil law subjects

Odessa National University named after I.I. Mechnikov

Section 5labour law; Social Security law

In modern period the problem of human rights is universal significance. With the establishment of a democratic, social, lawful state, social mar-ket economy the problem of ensuring respect for and observance of human rights has become globally and nationally, including in key areas of human activity – work. Protection of subjective rights and legitimate interests within the appro-priate form of protection and by means of a meth-od is an objective necessity. That is the level of protection of human rights and civil evaluated the effectiveness of the public authorities, the degree of democracy as a whole. Establishment and op-eration of a comprehensive system of labor rights

is an important legal guarantee of their security.In the legal literature indicates three main

ways to protect labor rights and their legitimate interests: State supervision and monitoring of compliance with labor laws, protection of labor rights by trade unions and self defense workers’ labor rights.

Analysis of current labor legislation indicates imperfect consolidation forms and ways to pro-tect labor rights. To protect workers their dignity while performing job duties, the employee has the right to resort to the jurisdictional and not jurisdictional form of protection in accordance with applicable law.

EMPLOYMENT CONTRACT AS A FORM OF CONSOLIDATION OF FUNDAMENTAL RIGHTS BETwEEN

THE PARTIES TO THE EMPLOYMENT RELATIONSHIP

Brus J.P.,Student,

Vinnytsia Trade and Economics Institute ofKyiv National Trade and Economic University

Bahnovska I.P.,Candidate of law, Associate

Professor of Vinnitsa Trade and Economics Institute

Kyiv National Trade and Economic University

The Constitution of Ukraine proclaimed a dem-ocratic state. What man, his rights and freedoms are the supreme social value. One of the basic guar-anteed rights is the right of a citizen of Ukraine to work. This consolidation and protection of these rights is a function of domestic labor laws.

One way of ensuring the right to work, there is an employment contract. Under this agreement

the question of work in the profession, to a cer-tain degree and qualifications.

Parties labor relations act as employers and employees. When an employment contract of employment arising governed by labor laws. It was in labor rights is not only the physical aspect but also the moral satisfaction, realizes himself as a person.

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The subject of the employment contract is the process of work that requires an employee to per-form work, follow the internal labor regulations and give their holders the holder of this work to provide the means of production and to ensure appropriate working conditions.

An employment contract is an important guar-antee of the right to work, to free choice of em-ployment and disposal of individual abilities in the field of employment.

Employment contract as a form of consolida-tion of fundamental rights between the parties to the employment relationship ensure equal ex-pression between the parties. Changes in the le-gal regulation of work identified two main areas,

namely the individualization of labor relations between employer and employee, established an employment contract, as well as the unification of the labor regulation.

The employment contract is one of the most important and the most appropriate form of regu-lation of labor relations, providing comprehensive consideration of the will of the parties at all stages of the employment relationship (emergence, exis-tence, change and termination). It is a contract of employment to set specific conditions by reaching agreement between the employee and the employ-er to determine the subjective rights and obliga-tions of the parties becomes the key to the stability of the existence of an employment relationship.

wORKER REMOVAL FROM wORK AS A PREVENTIVE MEASURE IN LABOR LAw

Goloborodko V.A., Candidate of law

Assistant lecturer civil and economic law courses Crimea Law Institute of

National Law University named after Yaroslav the Wise

This paper analyzes the domestic legislation and the views of scholars regarding the removal of the employee from working as a preventive measure in employment law. During removal of the employee to understand the proposed temporary worker prevent to perform their job duties without pay or benefit during his suspen-sion aid for temporary disability, which is used in exceptional cases provided by law, to pre-vent dangerous consequences. Typical signs of this preventive measure include: (a) to prevent temporary workers to perform their job du-ties, (b) the suspension of payments of wages to him (in the case of dismissal for objective reasons, shall receive benefits under the state social insurance), (c) suspension from work on the proposal of the officials concerned, (d) the suspension, but only suspend the employment

relationship between employer and employee.Found that the removal of the employment

relationship is not terminated, nor terminates the employment contract, but the employee to work temporarily not allowed.

It is concluded that the removal of the work is temporary precautionary measure. In some cases, suspension from work are more interested society (prevent possible spread of infectious diseases), others – the organization and the employee (warn-ing blasting or underground works in the absence of proper knowledge and right). The purpose of suspension is to protect the public and personal interests, which may have only one legal nature – temporary suspension of certain terms of the employment contract and is characterized by the time needed to resolve the question of the legal consequences of the offense committed.

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LEGAL DOCTRINE AND ITS MEANING FOR THE EVOLVEMENT OF LABOUR LAw OF UKRAINE

Gurash V.M., Candidate of Law Sciences, Assistant of the Chamber of Labour,

Agrarian and Environmental Law of Lviv National University named after Ivan Franko

The notorious importance of the issue of the current research caused by the following reasons: reformation of labour legislation of Ukraine, i.e. problems relevant to the drafting and adoption of new Labour Code of Ukraine, as well as ab-sence of all-rounded and fundamental scientific researches on the meaning of the legal doctrine for the evolvement of labour law of Ukraine.

The notion “legal doctrine” has several mean-ings, however basically it is revealed within so-called narrow and wide meaning. In the scope of legal system of Ukraine the notion of legal doc-trine should be considered as the system of ideas, scientific attitudes, theories on law issues (pre-cise legal-field) developed by legal scholars (rep-resentatives of a precise legal-field science) and acknowledged by authoritative legal scholars.

In Ukraine legal doctrine is the theoretical ba-sis for the law-making activity in the legal-field of labour law. Ukrainian scholars embodied the most important achievements of science of la-bour law in the future Labour Code of Ukraine,

by participating in its drafting as members of of-ficial working groups. The correlation between the legal doctrine and law-making process is re-inforced by some provisions of the future Labour Code of Ukraine, which were evidently trans-formed from the scientific researches.

Profound role of legal doctrine deals with the: definition of independence of labour law of Ukraine as legal-field, ensuring of content in-tegrity of the latter, revealing of the necessity of amendment of labour legislation.

Leading role of scholars with regard to the definition of labour law as legal-field under no circumstances objects the objective nature of this phenomenon. Labour law is real, as well as social relations, which are regulated by this legal-field. It is independent from the subjective will, includ-ing the will of a scholar. However, exclusively science is capable to fix the independence of la-bour law of Ukraine as legal-field, as it possesses the necessary theoretical constructions and no-tions.

THE CONCEPT AND FORMS OF EMPLOYMENT

Zakernychnyy P.I.,Postgraduate of civil law subjects,

Odessa National University named after I.I. Mechnikov

There is deepening imbalance between de-mand and supply of labor in the modern socio-economic conditions in Ukraine.

The effective state employment policy, that based on the principle of priority to ensure full, productive and freely chosen employment, the state’s responsibility for the formulation and im-plementation of policies of employment; equal opportunities in the mechanism of realization of the constitutional right to work, promotion the ef-

ficient use of labor potential and providing social protection against unemployment are the main forms of employment problem solving in today’s economy.

Employment as a legal category can be clas-sified according to various criteria, such as form of the organization of working time, nature of or-ganization workplaces and working time, stabil-ity of labor activity, forms of legal regulation and others.

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Forms of employment should determine the content of Article 4 of the Law of Ukraine “On Employment of Population” dated July 5, 2012, which provides for categories of employed per-sons.

The proposed approach in the paper allowed the author to determine that the problem of employment is the subject of study of various social sciences such as law, economics, soci-ology and political science. Accordingly, the

term “employment” is formulated through a set of social relations – economic, legal, political and social. The new Ukrainian legislation of employment of population provides a list of the categories of employed persons, and ac-cordingly forms of employment. Employment is provided by establishing relations are gov-erned by labor agreements (contracts), entre-preneurial and other activities not prohibited by law.

Home work means work which the person re-ferred to outworker performs at his place of resi-dence or other premises of his choice, but not in the workplace of the employer, for a fee, with the purpose of producing goods or services specified by the employer, irrespective of who provides equipment, materials or other inputs used, unless the person does not have such a degree of auton-omy and of economic independence necessary to be considered an independent worker under na-tional legislation or court decisions.

At the same time noted that persons with em-ployee status do not become homeworkers within the meaning of this Recommendation through the mere fact that they perform from time to time work as employees at home, rather than at their usual workplace.

Development of home-based work gives you the opportunity to expand production, better use of local raw materials and industrial waste with-out any costs for the construction of new produc-tion facilities and administrative and production staff. However, local councils should have the authority to enter into contracts with companies and organizations for the establishment of spe-cialized jobs in the home-based environment, the

establishment of quotas for hiring home-based work.

Benefits of home-based work consists in the fact that not being able to raise the level of wages, the employer can motivate employee convenient mode of work, it can compensate for the short-comings of material incentives for the employee, and respond to his needs even more than getting extra money. Opportunity to spend more time in the normal social environment, to have freedom in the movements, whereabouts, the rhythm of the election, which provides home-based work, there is often more important than a high salary or a prestigious position.

In our legislation homeworkers paid not much attention. Thus, in the Labour Code, they men-tioned only once – in Article 8 hours. 179 devot-ed to maternity leave and child care, namely: “to the woman’s request or persons specified in Part Seven of this article during the period of their leave to care for a child they can work part- time or at home. At the same time they retain the right to receive benefits during the period of leave to care for a child under the age of three”.

It should be noted that the draft Labour Code of Ukraine found its fixation rate of pay for their work

LEGAL REGULATION OF OUTwORK

Kiseleva O.I., Candidate of Law,

Senior lecturer in administrative, commercial law, financial and economic security,

Sumy State UniversityAndriychenko N.S.,

Student of Law Faculty, Sumy State University

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at home (Art. 223). In particular, remuneration un-der an employment contract on the work carried out at the house actually performed work or manu-factured products in accordance with the employ-ment contract with the guarantees established by the agreements of those industries to which these works belong to the nature of production. Of course, this is positive, because the legislator finally drew atten-tion to the need to resolve labor at home.

It is also essential definition of reasons for ter-minating the contract with the homeworker. In addition to general grounds it is also advisable to allocate at the legislative level change housing – conditions of workers, which entails the impos-sibility of continuing the employee of their duties and repeated violation of its obligations under the

employee to the employer providing reliable in-formation on the use of his working time.

Thus, proper regulation of relations connect-ed with the use of home work is only possible through the analysis of existing labor laws. In the Western countries, cancer institute telecommut-ing more widely used and more productive, does not allow to charge a labor contract with home-workers to atypical labor agreements. Guided by the ILO Convention on Home Work number 177, many Western countries have provided statutory conditions for admission to the usual domestic labor employment than were created conditions for the preservation of labor relations with differ-ent categories of workers who sought to go into another field of employment.

The author identifies common features physi-cal, procedural and legal proceedings, establishes the interdependence between them and describes the main participants in these relationships.

The author believes that traditional procedural and procedural legal scholars refer to the auxilia-ry relations that are the subject of social security law. Combining the characteristics of the physi-cal, procedural and legal proceedings is that they have a security focus and clearly defined at the legal level. At the same time, the procedural and legal proceedings are a separate type of relation-ship as arising from the establishment of certain facts or legal disputes concerning social security.

One of the essential and characteristic features of the procedure is to have a set of algorithm op-erations (model) under which it is implemented. In its most general form, this procedure is a spe-cific sequence of actions whose implementation leads to the desired result.

The analysis of legal acts indicates that the ba-sic model of process of law can be defined as nor-

mative, those contained in the rules of procedural legislation. At the same time, one can not dismiss the possibility of an individual determination of the legal procedure that would have been deter-mined by individual legal acts or contractually.

Procedural relationship in social security con-stitute a system of relations that are constantly in dynamics and are usually composed of behav-ioral acts, succeeding each other. A characteristic feature is the fact that compliance with certain procedures aimed at achieving a particular result. Procedural relationship in its primary purpose de-signed to determine the onset of the main precon-ditions relationship.

In order to use the potential there was proce-dural rules concerning a dispute on social pro-tection is required inside the subject will pass resolve the dispute to the competent authority. Given that the very existence of the dispute indi-cates a negative reaction to one of the parties to the relationship between the state and the indi-vidual, we can say that the dispute is an integral

PROCEDURAL AND LEGAL PROCEEDINGS IN THE SOCIAL SECURITY LAw

Roshkanuk V.М.,Candidate of Law, Associate Professor of Civil Law

Faculty of LawSHEI “Uzhhorod National University”

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part of a person to guarantee social protection. From this we can conclude that the set of rules for resolving disputes concerning social security

is a complex legal institution designed to ensure the restoration and protection of the right to so-cial security.

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DIFFERENTIATION OF ENVIRONMENTAL AND OTHER OFFENSES BY THE OBJECT AND SUBJECT CRITERIAS

Bilyk I.A., Postgraduate of

Institute of State and Law named after V.M. Koretskyof National Academy of Sciences of Ukraine

Section 6land law; agrarian law;

environmental law; nature reSourceS law

The article analyzes two basic concepts of le-gal liability. According to the first, which can be named normative approach, legal responsibility comes only in cases of acts which determined dispositions of specific articles. According an-other (social concept), any type of behavior can be recognized as an offense in the presence of certain features.

Environmental offenses object is one of the key criteria of differentiation environmental and other legal offenses. Environment or its com-ponents can be the subject of environmental of-fenses, if that they are in a natural environment relation to the environment and doesn’t separated by the human labor.

The offense will not be called up environ-mental, if the objects of the environment act as subjects of civil relations. Depends on elemental

composition of environmental offenses there are two approaches to understand the environmental offense: wide and narrow.

By the narrow understanding, environmental offenses qualifications need to found out what environmental requirement was violated. Narrow approach to the understanding of environmental offenses should be applied to construct a legal ad-ministrative and environmental crime, where the attraction of the person legally responsible shall be initiated by government body.

Environmental offense, by the wide under-standing, is intended to protect the rights and in-terests of particular persons, but not legal norm. Using the term ecological wrongful acts is more correct by the wide understanding. Legal liability can come regardless of whether a particular act is provided in the articles of the law dispositions.

PROBLEM OF PROVISION OF REQUIREMENTS OF ENVIRONMENTAL SAFETY IN THE USE OF LANDS OF THE INDUSTRY

Lisova T.V.,Associate Professor of department of the land and agrarian law,

National Law University named after Yaroslav the Wise

In accordance with an item 19 of the Landed code of Ukraine lands of industry, transport, con-nection, energy, defensive and other setting make the independent category of lands. Pursuant to an item 65 of the Landed code lands of indus-try, transport, connection, energy, defensive and other setting are acknowledge lot lands, given

in accordance with established procedure to the enterprises, establishments and organizations for realization of the proper activity. Their use estab-lished an order a law. In accordance with an item 66 of the Landed code lands, given for placing and exploitation of basic, subsidiary and auxil-iary buildings and buildings of industrial, min-

29


ing, transport and other enterprises, their access roads, engineerings networks, administratively domestic buildings, other buildings, belong to them. Consequently, the basic having a special purpose setting of lands of industry consists in that they are utillized or intended for providing of activity of industrial enterprises, and also ex-ploitation of objects of industry. It costs to un-derline that the specific of exploitation of lands of industry is predefined: (а) by the features of functioning of the objects setting of which is maintenance of unagricultural necessities located on them, and (б) specific status of subjects which they are given to. The row of laws of Ukraine, which regulate legal relationships from the use of lands of this category, is accepted for today, however, special Law is not accepted until now. In addition, the unique requirements of ecologi-cal safety of the use of lands of industry absent in a current legislation. In that time earths are marked more frequent all test the negative influ-encing comparatively with other types of lands. That is why subjects of the landed relations are under an obligation to carry out their guard most intensively. It is marked higher requires research with the purpose of decision of questions of the legal adjusting of the use and guard of lands of industry.

A purpose of this publication is a study of package of questions of the legal adjusting of ex-ploitation and guard of lands of industry.

In the conditions of scientific and techni-cal progress there are considerable changes of ecological situation in the state. From one side it is characterized the sharp strengthening of in-fluencing of man on a natural environment, by swift development of production and all more in-tensive use of natural resources, from other – by the necessity of account in a greater degree, than before, possible scopes of loading on an environ-ment.

The legal adjusting of nature protection activ-ity in industry must be directed on the decision of two tasks: non-admission at economic building of new sources of contamination, gradual limita-tion and, finally, complete liquidation of present sources of contamination.

Will mark that ecological safety in the process of realization of production activity of industrial enterprises is the constituent of national ecologi-

cal safety, that by the complex system of mea-sures of influencing and responsibility, that used in the process of production of industrial prod-ucts, planning, building, exploitation of industrial enterprises in the scopes set normatively, with the purpose of defence vitally of important interests of man, society, state and guard of natural envi-ronment, rational use of natural resources with combination of providing of trouble-free work of industrial enterprises for satisfaction of necessi-ties of public production. In the noted sphere it is expedient the signs of ecological safety to count the followings: industry of application is a sphere of industry; a purpose is defence of life and health of man, society, guard of natural environment, satisfaction of necessities of public production; an object of safety is basic, subsidiary and auxil-iary buildings and buildings of industrial, mining and other enterprises, objects of natural environ-ment (in particular earth); intercommunication of ecological requirements is with the technological processes of industrial enterprises. Thus, safety of lands of industry is examined as an element of ecological safety, which, in the turn, is an ele-ment and pre-condition of national safety.

Legal ecological requirements to activity of enterprises of engineer and legal measures on their realization must take into account harmful influence of not only technological processes but also producible products on a natural environ-ment.

Thus, the requirements of ecological safety at the use of earths of industry must be provided the complex of organizational, legal, technical, polit-ical, economic, educate and other measures. The noted measures form a certain legal mechanism, which consists of the system of legal facilities, directed on supports set norms, rules and stan-dards from safety of possible scopes of the harm-ful influencing of industrial production on a man and natural environment.

Subsequent economic development is possi-ble only with a maximal ecological and economic effect, harmonious development of the econom-ic and ecological systems. Speech goes about creation of new method of production with the ecological completeness of technical cycles, ap-proaching of them to quality of natural processes after ecological, not infliction of harm to the nat-ural environment and others like that. At the lo-

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cation of enterprises of industry necessarily must be conducted state, and if necessary and public ecological examination in relation to projects on building and reconstruction (expansion, technical rearmament) of enterprises which can negatively influence on the state of natural environment, re-gardless of forms of ownness and submission

Appropriately to make alteration in the land legislation is in relation to fixing of requirement of territorial location of lands, of industry excep-tionally outside settlements. In fact industrial ac-tivity after the properties belongs to ecologically dangerous and carries out the negative influenc-ing on a health of population.

THE LEGAL NATURE OF INVESTMENT AGREEMENT IN THE SPHERE OF INVESTMENT IN THE ENVIRONMENT

Lozytska K.O., Postgraduate student of law department of environmental law of


One of the sources of funding for the environ-ment is to encourage investment in the environ-ment which occurs through the conclusion of in-vestment agreements.

The purpose of this paper is to investigate the legal nature of investment treaties in the field of investment in the environment and determine their characteristics.

The author based on the analysis of scientif-ic-theoretical and legal framework analyzes the concept of “investment contract” and “invest-ment agreement in the field of investment in the environment”; defined the place of an investment agreement in the field of investment in the envi-ronment on the system of investment contracts. The author based on research singles out signs of investment agreements in the field of invest-

ment in the environment and proposed her own definition.

In view of the characteristic features the au-thor offer the following definition: an investment agreement in the field of investment in the envi-ronment is an agreement of two or more parties aimed at establishing a specified period the rights and duties of the investor (authorized person) and other members of the investment in order to perform practical action on all types of property investments and intellectual property invested in the business and other activities aimed at the reduction and elimination of negative human impacts on the environment, conservation, im-provement and rational use of natural resources and environmental safety in the interest of pres-ent and future generations.

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The development of land law and the Ukraine’s transition to the market economy re-quire a new definition of land law as a branch of the Ukraine’s law. In order to create an unified definition of land law, it’s worth analyzing dif-ferent doctrinal approaches to the determination of land law and distinguishing the main features of land law.

The basic aim of this article is to develop upon a single unified definition of land law as a branch of law, taking into account all the characteristic features and the peculiarities of land law.

There are different criteria for distinguishing land law as an independent branch of Ukraine’s law. The key criterion is a subject-matter of land law – land relations. The additional criterion is a method of land law, the essence of which is a combination of three types of methods: discre-tionary, mandatory and specific land methods. The optional criteria are represented by the prin-ciples of land law, the object of land law (plot of land), the subjects of land relations, special con-ceptual apparatus of land law, special land legis-lation, social purpose of land law.

The author of this article analyzes the main doctrinal approaches to the definition of land law. The first approach is represented by the theoreticians: L.A. Lytz, M.S. Kelman, O.H. My-rashun, O.V. Zaychuk, N.M. Onishchenko; the second – by the scholars of Ukrainian land law doctrine: O.O. Pohrebnoy, I.I. Karakash, A.M. Miroshnuchenko, M.V. Shulga, V.V. Nosik, V.I. Andreytsev, P.F. Kylunuch and V.I.Semchuk; the third – by the Russian scholars in the field of land law: E.S. Boltanov, B.V. Erofeev and S.A. Bo-holjybov.

The theoreticians consider land law in the light of a subsystem of legal rules, which regulate legal treatment of lands, the procedure of their possession and protection, land management and land cadastre by using the discretionary and man-

datory regulative methods. The author of such a definition makes an emphasis on the land law as a subsystem of land rules (material and procedural rules).

Ukrainian scholars define land law as a sys-tematic set of the accepted or the approved legal rules, designed to regulate social land relations in order to ensure rational use, restoration and ef-fective protection of land resources, legal rights and interests of citizens, legal persons, local com-munities and state to land, respect the established system of land tenure and on this basis the forma-tion and establishment of sustainable organiza-tion of land exploitation in the state. This defini-tion is adapted to the modern conditions of social life. The authors of this definition pay a special attention to the creation and the development of land law and order in the state.

The Russian scholars don’t have an unani-mous mode of approach to the explanation of land law as a separate branch of law. Each schol-ar has its own position. For instance, the promi-nent Russian scholar S.A. Boholjybov states that land law as a branch of law regulates a homoge-neous type of social relations particularly land re-lations. Nevertheless, this definition of land law isn’t comprehensive because it doesn’t include all the totality of land law features, for instance: the principles of land law, the methods of land law, the objectives of land law.

Having analyzed different scientific positions concerning the definition of land law as a branch of law, the author adduces the following unified definition of land law: it is a subsystem of legal rules, which regulates a homogeneous set of so-cial land relations so as to ensure land rights of citizens, legal persons, local communities and state, a rational using, land protection and a gov-ernance of land fund by applying the general (discretionary and mandatory) and the special land regulative methods.

DOCTRINAL APPROACHES TO THE DEFINITION OF LAND LAw AS A BRANCH OF THE UKRAINE’S LAw

Mak L.B., Postgraduate student of the labour, agrarian

and ecological law department,Lviv Ivan Franko National University

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FAUNA wILDLIFE AS OBJECT OF ENVIRONMENTAL LEGISLATION

Nechiporuk L.D.,Candidate of Law, Senior Lecturer of Civil Law Department

Faculty of LawSHEI “Uzhhorod National University”

The article deals with ecological and legal regulation of social relations that arise concern-ing withdrawal of wild animals from the natural freedom to meet the material and spiritual needs (ecological and faunal operational relations for special use of wildlife).

The necessity of legal customize wild animals as objects of wildlife and for this purpose is pro-posed to fix the term “wild fauna”. Defines the legal attributes of objects of wildlife, which char-acterize them as objects of ecological relation-ships. These signs are divided into three groups: biological (the state of life and wildness of ani-mals), Settings for health and their locations) and territorial (due to the action of faunal legislation in space). In accordance with the generic and spe-cies identified as signs of animals as objects of legal relations in their specific use. These signs indicate the status of their natural liberty, and the availability of useful properties, capable of satis-fying the material and spiritual needs of people.

Analyzed material (actual) content of relations in the field of special of wild fauna.So indicated by the ratio of the terms “use the fauna” and “use” of the relevant objects specified criterion for dis-tinguishing legal order on the use of wild animals in general and special. Defined legal concept of special use of wildlife, and also established the legal criteria of differentiation of such activities into separate elements, and therefore allocated its individual species.

We study the subject composition ecology – faunal operational relations. In particular, there is a group of key actors who are interested in the production of wild animals in order to realize their interests, and a group of subsidiary entities, which have the means of power necessary for such implementation.

Analyzed the legal content of these relation-ships (the rights and duties of subjects). Substan-tiated unreasonableness spread legal construction “right to use” to relations connected with the prey of wild animals. In this regard, as the chief of the subjective right group of key actors relevant legal, is not considered a right of use and right to the special use of wild animals. Summarizes the provisions of the grounds and procedure and Termination of relations in the sphere of special use of wild animals. Extensively investigated ecological features – legal regulation of relations that develop in connection with selected species of wild fauna special.Defined legal signs that form the concept of hunting, fishing, use of wild animals in scientific, cultural and educational, educational and aesthetic purposes, as well as production of these objects for the purpose of keeping in captivity or semi-free conditions.

The author defines the approaches to improve environmental legislation regulating relations in the field of special uses of wildlife, formulate specific proposals to address existing gaps in it and contradictions.

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ADMINISTRATION RESPONSIBLE FOR VIOLATIONS OF THE STATE SECRETS

Adabash A.V.,Assistant of Department of administrative

and finance law ofNational university «Odessa Academy of Law»

Section 7adminiStrative law and proceSS; financial law; information law

The theme of this article is rarer important nowadays taking into account modern situation in administrative relationships between the sub-jects. One the one hand, the article considers the state of the protection of the state secret. On the other hand, the main directions of its improve-ment are detected. Mention should be made that the main specific features of the protection of the state secret regime are considered in the ar-ticle. Also, it should be noted that there is lack of scientific materials and sources that describe the particular aspects of administrative liability in the sphere of state secret protection. Nowa-days the problem of administrative liability has not only the theoretical but also practical impor-tance. The matter is that it is directly related to the state security of country. The existence and progressive development of Ukraine depends on the realization of direct strict policy concerning the protection of its nation interests. No doubt the support of the information security is one

of the most important and vital function of the state. The protection of state secret consists of the set of means that exist to prevent the spread of state secret information. The violation of Ukrainian law entail the disciplinary, adminis-trative, civil and criminal liability according to state legislation.

To sum up, it should be noted that the main reasons of administrative delicts in the sphere of state secret are considered. So the article pro-vides the definition of the main problems and fea-tures and mechanism of regulation the relations between subjects in the sphere of state secret. A wide rage of legal acts are particular conclusions are made recording liability in this sphere. Partic-ular attention is paid to actus reus and mens rea. So, the problems of administrative liability are rather important nowadays and they are caused by social, economic, organizational and other facts. So state authorities should pay special at-tention to them.

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In the work the problem of the need to study the essence and content of the administrative re-sponsibility in the sphere of subsoil use, because the modern economy raises questions about the legal basis of management in the sphere of na-ture, thereby administrative responsibility acts as a lever for economic security in the sphere of subsoil use.

The author substantiates the thesis that the In-stitute of administrative responsibility is one of the forms of legal guarantees for the preservation and rational use of raw-material resources of the country, ensuring its economic independence, the element of public authority, and one of the ways to strengthen the legal order and legality in the sphere of use and protection of the state’s interior.

Many times the author notes that the administra-tive responsibility is an important tool of state management. It is impossible to pick a sphere, where it is not.

Analysis of administrative responsibility for violations in the sphere of subsoil use, made to the document, has allowed the author to determine the advantages of this type of legal responsibility are, above all, in its focus on the prevention and prohibition of causing significant damage to the environment, life and health of a person, and in responsiveness to crime, which is especially im-portant in the sphere of environmental protection.

In addition, the author has provided personal interpretation of the administrative responsibility for violations in the sphere of subsoil use.

ADMINISTRATIVE RESPONSIBILITY IS AS THE APPEARANCE OF LEGAL RESPONSIBILITY FOR VIOLATIONS

IN THE SPHERE OF SUBSOIL USE

Belitskaya M.A.,adjunct of the Department of economic security of

Lugansk State University of Internal Affairs named after E.A. Didorenko, senior Lieutenant of militia

INSTRUMENT CONCEPT OF PUBLIC POLICY IN REGULATING SOCIAL RELATIONS

Demyanchuk Y.V.,Candidate of Law

During the enforcement inevitably becomes a question of qualification that the proper choice of law, connected with the maintenance of relation-ships that need to be adjusted. In this process, the main role is played by clarifying enforcement of legal acts of the authorized persons and bodies specified in the legislation (officially), or under the legal presumption of authority lawyer or sci-entific doctrine (in an informal manner).

Choosing the appropriate general and specific sectoral policies, determine their legal criteria and limits of regulation of defining and condi-tions governing these rules as an internal intellec-tual process, followed by an explanation of their stakeholders by providing substantive conclu-

sions about the meaning and eligibility criteria in the science of law and law enforcement practices define the legal term “legal interpretation”.

Unsatisfactory is the view when sometimes we can say that is unfair, but often cannot spec-ify in advance exactly what demands justice in a particular case. But the true solution is often a solution that impartial and well-informed per-son takes after careful consideration of the facts and arguments on both sides. Not all judges and lawyers have the money, but if they have them, the society they serve, approaching the most eq-uitable way possible.

That is why justice is part of the objective. The other part – subjective – is in the order making

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the proper application of the law impartial and well- informed people.

In terms of interpretation of the law by the courts or administrative authorities and in making decisions in the courts of law in some legal au-thority cognitive interpretation of the applicable

law with a specific act of volition. This act cre-ates a certain rate or lower level, or implemented in the application of legal norms as coercive act.

Thus, we can consider the interpretation of the law apart from the controversial political issues and sociological aspects of life in general.

THE TAxPAYERS’ RIGHT: THE PROBLEMS OF REALIZATION IN ADMINISTRATIVELY TO COUNTERACTION

NONLEAGUE DECISION OF TAx ORGANS

Ivantsov V.O.,Senior teacher of administrative activity department of internal affairs organs of

Kharkiv National University of Internal AffairsMaslennikova S.А.,

Cadet of Kharkiv National University of Internal Affairs

Actuality of select theme is grounded in the entry of the article, a purpose and main tasks of research is described. Authors paid separate at-tention illumination of the condition of the article research offered into consideration of theme, due to what underlined its actuality once again.

At exposition of basic material authors, not coming running to the detailed exposition of general procedure of appeal of decisions of su-pervisory organs in an administrative order, were stopped exactly for the concrete problems of re-alization last in relation to counteraction illegal decision of tax organs.

In the article the next problems of realization of taxpayers’ right found the illumination on de-fence in an administrative order: staying is with-out consideration of complaint of taxpayer on the decision of supervisory organ, that it is ac-cepted them on the basis of decision-making by a supervisory organ higher level after the previous complaint of taxpayer; disparity of maintenance of point 9 Statute about the order of presentation and consideration of complaints of taxpayers by the organs of government tax service and point 56.3 of article 56 of the Internal revenue code of Ukraine in relation to the order of presentation of

taxes of documents a payer at consideration of complaint a supervisory organ; establishment of different terms in relation to the appeal of deci-sions of tax organs in an administrative order in obedience to the Internal revenue code of Ukraine (point 56.3 of article 56) and Law of Ukraine «About the appeal of citizens» (article 17); point of a 14 Statute about the order of presentation and consideration of complaints of taxpayers it is nec-essary to acknowledge the organs of government tax service, that do not find effective realization in supervisory organs activity at the appeal of tax organs’ decisions; legislation does not contain the concrete list of grounds and duty of ground of the authorized public servant supervisory organ po-sition for extending consideration of complaints.

As a result authors offer their own ways de-cisions of the noted problems, maintenance of which consists in a grant as a legal estimation of validity of situation decision of concrete prob-lems leaning on operating positions normatively legal acts, and suggestions in relation to bringing of row of changes and additions in positions of its acts. In the end authors ground expedience of leadthrough of subsequent developments in this direction.

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THE CRIMINAL-ExECUTIVE INSPECTION AS THE SUBJECT OF PROCEEDINGS ON ADMINISTRATIVE VIOLATIONS

Kapustina K.O., Applicant of

Kharkiv National University of Internal Affairs

Enforcement of the administrative penalties involves different governmental bodies, among which a particular part is played by the crimi-nal executive inspection. In this regard issues of identifying the said body’s place in the adminis-trative jurisdictional process, examining its com-petence and features of the legal status becomes an important one.

The goal of this article is to analyze legal sta-tus of the criminal executive inspection in the procedures on administrative offences together with its powers.

Specific features of the criminal executive in-spection’s legal status lie in the fact that it pos-sesses certain powers regarding enforcement of both criminal and administrative penalties.

Criminal executive inspection is a subject of

the procedures on administrative offences as en-forcement of decisions to impose administrative penalties represents a separate stage of the proce-dure and, secondly, this is a body authorized by the current legislation to ensure enforcement of the decision to impose administrative penalties.

As a subject of the procedures on administra-tive offences criminal executive inspection pos-sesses administrative capacity that depends of the scope of its authority, and administrative compe-tence.

According to the provisions of the Order of enforcement of the administrative penalties im-posed in the form of public and correctional works the functions of the criminal executive inspection on this stage can be grouped into the functions of organization, control and prevention.

INFORMATIONAL INTERACTION AS A MANIFESTATION OF AN INFORMATION FUNCTION

Klymentyev O.P., Applicant of Judicial Institute of

National Aviation University

In this article the author analyzes the existing definitions of «information function of the state».

Own definition of «information functions of the state» was formulated. It was proposed to understand under the information function of the state – are the basic directions of its activi-ties, which are aimed at providing of informa-tion interests of people and the state, both at na-tional and international levels. In our opinion, the essence of the information function means organization and providing of the system of cre-ation, collection, receiving, use, dissemination, storage, protection, data protection, and active participation of the state, through its representa-tive bodies in the development of the global in-

formational space, set the mode of information resources use on the basis of equal cooperation with other states through an appropriate infor-mation policy.

The content of the information functions can be defined as activity in the field of ensuring of fundamental rights, freedoms and responsibilities of the subjects of law that are involved in infor-mation processes and informatization.

It was defined that under the information in-teraction could be understood the relations of subjects of information relations, as they take a direct part in shaping of the information society within its powers which are related to the infor-mation (because it is the object of this type of

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relations). Information interaction is a reflection of informational function of a state.

It was noticed that there are many problems

in the sphere of the informational function of the state realization, and information war is one of them.

“GREEN INVESTMENTS” AS A FORM OF PUBLIC FUNDING OF ENVIRONMENTAL ACTIVITIES

Komisaruk N.O.,post-graduate student of the Department of Administrative

and Financial Law,National University of Life and Environmental Sciences of Ukraine

By undertaking a commitment in the first peri-od of the Kyoto Protocol, Ukraine has gained the opportunity to take advantage of the envisaged economic mechanisms: joint implementation and international emissions trading.

Funds obtained by Ukraine as a result of the sale of AAUs (Assigned Amount Units) have been allocated to the state budget and deposited into special accounts of the State Treasury of Ukraine. Therefore, said funds should be utilized subject to the provisions of the Budget Code of Ukraine and via the Ministry of Finance of Ukraine and the State Treasury of Ukraine.

For the purpose of fulfilling the requirements of the United Nations Framework Convention on Climate Change and its Kyoto Protocol and implementing state policy in the regulation of negative human impact on climate change and adaptation to this change, the State Environmen-tal Investment Agency of Ukraine has been es-tablished.

Detailed analysis of the current legislation and the available information on the Green Invest-ment Scheme which regulates the funding of en-vironmental projects enables us to make the fol-lowing suggestions.

It would be useful to determine in detail whether public funds are utilized effectively, i.e. to examine the performance of private and public institutions responsible for the imple-mentation of projects under the Green Invest-ment Scheme, and to launch an investigation as to whether the cost of projects is in line with the quality of work.

Governmental bodies ought to provide public access to information on projects implemented under the Green Investment Scheme.

Besides, the practice of approving each proj-ect should be abolished. Criteria for projects ap-plied for public funding should be legislatively fixed. Compliance of the project with the criteria should be a prerequisite for its implementation.

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DESCRIPTION OF TYPES OF DISCIPLINARY PENALTIES wHICH ARE USED TO CIVIL SERVANTS IN UKRAINE

AND DETERMINATION OF DIRECTIONS OF THEIR IMPROVEMENT

Kornuta L.M.,Candidate of Law sciences, assistant

of department of administrative and financial law,National University «Odessa Law Academy»

The civil servants of Ukraine carry disci-plinary responsibility in accordance with Law «On government service» (1993) and Disci-plinary regulations. The types of disciplinary penalties are fastened in labor Code Ukraine. However, except for general, the special types of disciplinary penalties determine Disciplin-ary regulations which regulate the special dis-ciplinary responsibility of civil servants. Such penalties are used to the separate types of civil servants.

Determining the general views of disciplinary penalties, it is necessary to mark that to in obedi-ence to the articles of a 147 labor Code Ukraine, for violation of labor discipline to the worker it can be applied only one of such measures of pen-alty: 1) reproof; 2) liberation.

In same queue in the article of 53 Laws «On government service» (2011) the types of disci-plinary penalties were expressly fastened: 1) re-mark; 2) reproof; 3) strict reproof; 4) warning is of incomplete official accordance; 5) dismissing of government service. Studying the types of dis-ciplinary penalties which can be applied to the civil servants for the fiancé of breach of disci-pline, except for Law «On government service», it follows to define Disciplinary regulations, which, except for general, fastened the types of

disciplinary penalties, in relation to separate civil servants which the special disciplinary responsi-bility is used to.

There are a number of normative acts, which regulate grounds, order and types of application of disciplinary responsibility, in relation to civil servants. Such amount of acts far is not instru-mental in providing and inhibition of rights, free-doms and legal interests of man and citizen, and to providing of legality, in state administration. A labor code Ukraine contains only separate posi-tions in relation to disciplinary responsibility and does not determine features, what inherent dis-ciplinary responsibility of civil servants. A basic act which must was expressly define grounds and types of disciplinary responsibility is Law «On government service», as a basic act which char-acterizes government service.

Taking into account development of govern-ment service status in Ukraine and foreign ex-perience of application of disciplinary penalties which are used to the civil servants, seen a neces-sity to complement, foreseen in Law of Ukraine «On government service» (2011), disciplinary penalties by such kinds: 1) translation on a lower on one level public place in a that public organ within 6 months; 2) fine (a size can make a from 25 to 100% wage).

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STATE CONTROL AND SUPERVISION AS EFFECTIVE FACILITIES OF ACTIVITY OF MILITIA IS IN SPHERE

OF COUNTERACTION CORRUPTION

Коrulya І.V., Сandidate of Law Sciences, Associate Professor of

department of management and work,National Academy of Internal Affairs

The article is devoted research of control and supervision in activity of militia in the sphere of counteraction a corruption. Public organs which carry out a control and observant function are selected. It is found out, that in Ukraine among public organs is: 1) such, which have the name which specifies on their control or observant ac-tivity; 2) such, in the name of which there are ab-sent terms «control» or «supervision», but they, in accordance with the jurisdiction, can carry out: and) control or observant activity; bi) both con-trol and observant, activity. However, neither the name of organ nor name of plenary powers, is the universal criterion of distinction of «control» and «supervision» as the special types of activity. The noted names – it the formal, but not essence cri-terion of their distinction only. Done conclusions, that complication of the clear differentiating of concepts «control» and «supervision» is prede-termined two circumstances, namely, they have

an identical dictionary value practically, at first, is a supervision or permanent supervision with the purpose of supervision, verification, after kim- or by anything; secondly, practically all scientists which touched in the works of this problem try to decide it foremost on the basis of analysis of current legislation. The basic forms of control, which are used for providing of efficiency of ac-tivity of militia in the sphere of counteraction a corruption, are certain. In particular, to the typi-forms of control, that is used for providing of effi-ciency of activity of militia in the sphere of coun-teraction to the corruption, it is taken: to a 1) plan and provided for by the plan not verifications of activity of subdivisions, that corruptions counter-act; 2) exception materials, reports, that touch the activity related to counteraction to the corruption, their analysis and generalization; a 3) hearing is on conferences, colleges of the results of activity, related to counteraction to the corruption.

PECULIARITIES OF METHOD OF PUBLIC REGULATION AND ITS OCCURRENCE IN FINANCIAL LAw

Mazur T.V.,Candidate of Law, Associate Professor,

assistant of the Deputy of Ukraine

In recent years, Ukraine is an active search forms and methods of government influence on the market, in particular in financial relations of the state and local governments. In this respect, more actualized the relationship between public and private, including public law and private law regulation of the relations techniques.

At present, the meaning of the method is not formed until the end, making it difficult to dis-close its role within each separate area of the law,

and sometimes even false blurring the boundaries of areas of law because of the “attribution” them atypical methods of legal regulation. In this area is no exception and finance.

The issue features a public law regulation of financial law also updated in terms of the revival of scientific interest in public law as an indepen-dent branch of law with its own method of public law regulation that completely negates the exis-tence of an independent field of finance.

40


When compared to the right government entity to provide legal order within the fi-nance and administrative law, we can see that the Code of Ukraine on Administrative Of-fences provides for the competent authority of the state to make the choice of specific penal-ties for offenses committed within the speci-fied range. Instead, the rules, such as the Tax Code of Ukraine, the Budget Code of Ukraine sharper in definition of sanctions that can be applied to the offending financial discipline for a particular offense, and often do not pro-vide an alternative.

There was insufficient evidence that power-fully subordinate relations between subjects of financial relations are less stringent. Within the financial relationships with authority subordi-nate nature of the relationship is clear and pro-nounced, as in financial relations always clearly identifiable by the eligible person (government entity) and the obligated person (other govern-

ment entity, legal or natural person ). Thus , in conditions of financial relations between public authorities , one of them within such financial re-lationships always play the role of “power” and another – “submission”, and it does not depend on the administration and management of the vis-cous such entities.

The method of public law regulation that is used in most public areas of the law has a number of features that are found including manifest and financial law.

At the same time, the specificity of the method of public law regulation in the financial features of the object generated right finance and public financial orientation activities. This is the result of the absence of subordinated nature of relation-ship building between actors and the possibility of achieving high flexibility of this method finan-cially right through combining different methods of influence on the behavior of financial relation-ships.

FORMING AND MAINTENANCE OF MODERN MODEL OF ADMINISTRATIVE PROCESS IN UKRAINE

Slivich I.І.,Candidate of Law,

Associate Professor, Head of Department of Criminal legal disciplines and international

Faculty of European Criminal Law Law and jurisprudence


The article deals with issues relating to prob-lems of formation and content of the administra-tive process model developed in Ukraine. It is generally accepted position that the judiciary in dealing with administrative matters (administra-tive disputes) shall be carried out by means of the administrative process (Administrative Pro-ceedings). It remains a contentious issue on the system, the structure of administrative litigation, due to the complexity and breadth of the social relations that are regulated and protected by this process.

Based on the analysis of scientific approaches to determining the content of the administrative process, the author proposes to consider it a na-

tional model as a set of legal grounds manage-ment, enforcement and remedial process.

National model of the administrative process is regulated by the law activities of public author-ities, local authorities, judicial bodies, their offi-cials and other authorized entities that to achieve the norms of administrative law, and protection of the substantive provisions in other areas of law, in the course of administrative and law en-forcement functions. It seems the inner meaning of the national model of administrative process can be viewed as a set of legal grounds manage-ment, enforcement and remedial process, united only form of administrative process that includes various proceedings, providing the possibility

41


of its involvement in the regulation of various spheres of social relations.

This type of procedural activities has the closest connection with the processes of gov-ernance and settles a number of important is-sues related to the protection of human and

civil rights. Thus, the model of the administra-tive process that has developed in Ukraine has a strong legal and administrative nature, and the breadth of coverage areas of regulation and legal protection is unmatched in the national legal system.

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THE MISTAKE OF FACT AND NEGLIGENCE: INTERRELATION BY CRIMINAL LAw CONTENT

Aidynian A.V.,postgraduate, Criminal law Department, Faculty of Law,Kyiv National University named after Taras Shevchenko

Section 8criminal law and criminology; penal law

The article deals with the issue of interrela-tion of mistake of fact and negligence by criminal law content. This issue isn’t resolved in criminal legislation of Ukraine. In science of criminal law there are different position about this inter-relation. Therefore this issue requires a detailed study.

In the article author analyzes answer four vari-ants to the main question: how the mistake of fact interrelation with the negligence. First variant provides that the mistake of fact and criminal law negligence exclude each other. The second vari-ant assumes that the mistake of fact coincide com-pletely. The third version proves that negligence

is the kind of mistake of fact. And the last variant avers that there can be different variants interrela-tion between this criminal law phenomena. Author has analyzed every point of view and exemained some arguments in favor of this views.

As result author make a conclusion that the most reasonable opinion about the interrelation between the mistake of fact and negligence by their criminal content is so that in some cases they can exclude each other. In other cases they coincide completely.

Based on the research this issue the author ar-gues that in general content of mistake of fact and negligence partly coincides.

TRANSACTION, AGREEMENT, CRIME: CORRELATION OF CONCEPTS

Bobonich E.F., research worker,


The article is sanctified to the analysis of es-sence and maintenance of categories “transac-tion”, “agreement”, “crime”, acquisition of right of ownership options for the purpose a crime (offences). A task decides through the prism of analysis of signs of these legal categories, in par-ticular, to legitimacy of actions of both parties of legal transaction (agreements). Offered not to acknowledge a crime an invalid agreement. Cri-teria over of acquisition of right of ownership are brought for the purpose a crime (offences).

Аt the commission of crime (offence) it is im-possible to conduct speech about the settlement of a legal transaction, agreement (including is an

invalid agreement in the civil legal understanding of this term).

Іn the cases of feasance of окермих types of crimes generalized judicial practice assumed ac-quisition the customer of right of ownership for the purpose crime (offence).

Without regard to the universally recognized priority of rights for a citizen above rights for the state and society, customer it is impossible to ad-mit “conscientious purchaser” in the exact under-standing of this term.

Іn force of acquisition by the customers of right of ownership for the purpose such crimes (offences), and to inseparability of actions of

43


customers from the actions of salespeople (subjects of the marked crimes (offences)), it will be to acknowledge acquisition the sub-

jects of the mentioned crimes (offences) of right of ownership on the acuestss got a crimi-nal way.

PECULIARITIES OF CRIMINAL CONTENT OF ARt. 263-1 OF tHe cRIMINAL cODe OF UKRAINe

Verbanovsky V.V.,Student,

Kyiv National Universitynamed after Taras Shevchenko

The research is timely due to the ambiguity and incompleteness of the legal regulation of illegal handling of weapons, ammunition, ex-plosives and explosive devices. In particular, it is connected with amendments to the Criminal Code of Ukraine (hereinafter – the CC), made according to the Law № 5064 -VI (5064-17) of 05.07.2012. Law enforcement practice and the-ory of criminal law have not responded in full to these changes yet.

The purpose of this paper is to clarify cer-tain aspects and issues relating to criminal le-gal description of art. 263-1of the CC through comparison with the previous and the current edition of art. 263 of the Criminal Code and to draw separate opinions and suggestions basing on it. First, it should be noted, that the crimes, listed in part 1 of art.263 and part 1, 2 of art. 263-1 of the Criminal Code of Ukraine, taking into account their punish ability, are now quali-fied as serious crimes and actions, provided in part 3 of art. 263-1 of the Criminal Code, are categorized as very serious crimes. Second, the smooth-bore hunting weapons, as a kind of firearms, has become a subject of all actions, listed in part 1 of art.263-1 of the Criminal Code, thus such actions as “illegal manufacture of smooth-bore hunting weapon”, “illegal pro-cessing of smooth hunting weapons”, “illegal

repair of smoothbore hunting weapons” have been criminalized.

Thirdly, such actions as repair of ammunition, explosives and explosive devices have been de-criminalized, and therefore they no longer con-stitute a crime. In addition, innovation of article 263-1 of the Criminal Code includes a provision on liability for unlawful processing of firearms and providing for aggravated crime.

However, it should be noted, that it’s needed to use common approaches of legislative technique to formulate names and dispositions of “similar” articles, which in their turn after amendments, made by the Law №5064-VI, dated 05.07.2012, in the art.263 and art.263-1 of the CC are differ-ent. It has become problematic to apply respec-tive rulings of the Supreme Court of Ukraine, Laws of Ukraine as well as provisions of the sci-entific practical commentaries, textbooks etc. as to solving the issue on criminal liability for illegal handling of weapons, after the Law № 5064–VI, dated 05.07.2012, introduced such amendments.

Therefore, art. 263 and art. 263-1 of the Crim-inal Code should be further improved, in partic-ular given the above findings and proposals. In addition, it is necessary to provide clarification regarding the application of the provisions of these articles by the High Specialized Court of Ukraine on Civil and Criminal Cases.

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CRIMINOLOGICAL CHARACTERISTICS OF FEMALE CRIME

Gargat-Ukrayinchuk O.M.,Candidate in Law Sciences, Associate Professor of the Department of Criminal Law,

Criminal procedure and Forensic Science of Ivano-Frankivsk Faculty of National University “Odessa Law Academy”

An important criminological problem today is the issue of female crime. Despite the fact that this type of crime in any society has no domi-nant character, its level and structure are mostly the indicators of the moral health of society and its spirituality, attitudes towards the basic human values and so on. Female criminality is a collec-tion of crimes committed by females on a given area for a certain period of time. In this article, the author studies urgent problems of female criminality in Ukraine and abroad. The author proves that the issue of female criminality is a complex and multifaceted problem that is closely interconnected with the detailed study of many other types of crime. In addition, the author pro-poses criteria to distinguish female crime from criminality in general and its separate kinds.

Female crime is closely connected with gen-eral criminality. However, it has some specific features that are determined by social-psycholog-ical and biological status of a woman. It differs from the male crime which is dominant in almost all indicators in general criminality, in quantita-

tive indicators, in peculiarities of the structure and nature of crime, the role of women in crimes committed together with men, methods and in-struments of committing crimes. Regarding the quantitative characteristics and differences, for centuries female criminality has always been inferior to male one. Correlation of crimes com-mitted by women to the level of crimes commit-ted by men is 1:7. The special features of female criminality are: its relatively small share in the general crime rate; narrower “piece of work” compared to male crime, less public danger, but this tendency is changing as a number of serious crimes, committed by women, is rising, and their role in a mixed criminality is increasing; female criminality is getting “younger” just like crimi-nality in general, i.e. percentage of crimes com-mitted by juveniles or young women is rising. A personality of female criminal is a combination of demographic, social, psychological, moral and legal characteristics, attributes, relationships, re-lationships that characterize the person who com-mitted the crime.

PRINCIPLES OF JUVENILE JUSTICE

Gusak A.P., Ph.D., Assistant Professor of criminal law and procedure,

Eastern European National University named after Lesya Ukrainka

The article tackles the problems of juvenile justice in Ukraine. The author considers the for-eign scholars approaches to the solution of the problem of juvenile justice. In the focus of atten-tion are the main principles of juvenile justice. Gusak A.P. indicates that at present there is a sig-nificant difference in the meaning of the term “ju-venile justice”, which is largely due to a variety of current and historically known models. There is no one, consistency, broadly interpretation of

this term. Although, there are some particularly common definitions which are analyzed in the article.

The author points out that the objective of ju-venile justice is to give special attention to the causes of juvenile offenses, an attempt to reform, correcting the behavior of the offender (not his punishment), prevention of re-committing illegal acts by juveniles.

The author concludes that the juvenile justice

45


system is new, but rather required the judiciary branch. The establishment of juvenile justice due to the distribution of justice “adult” and “child”, where subjects differ physiologically, psycholog-

ically and socially. All listed and explained in the paper demonstrate the principles of humanistic, democratic, social justice orientation in the world today, especially – with respect to children.

CRIMINOLOGICAL CHARACTERISTICS OF CRIMES COMMITTED BY FOOTBALL FANS AND PREVENTION

AND PREVENTION OF THESE CRIMES

Gusak T.P.,PhD student of Department of Criminal Law and Procedure of

National Pedagogical University named after Mikhailo Drahomanov

The paper reveals the actual problem of foot-ball fans’ criminal actions that lead to specific negative social consequences and harm physi-cal health and financial status of the people. The types of football fans’ criminal acts and their con-sequences, motives of illegal activities fans, the causes and conditions of the crimes committed by football hooligan are analyzed in the article. A special attention is paid to the prevention of crimes committed by football fans, preventive actions and ways to avert crimes among football fans.

Based on the research the author suggests the following ways to prevent crime among football fans:

1. Ensure coordination of all departments and services of the Interior, which provide public or-der and public safety in the streets and other pub-lic places.

2. Planning and carrying out on a regular basis of common local measures aimed at preventing illegal actions by football hooligans.

3. Increased attention to preventive work with leaders and members of informal youth associations from the service district police officers.

4. Expansion data and rapid exchange of in-formation between the police departments by the most active group of offenses and riots among the fans and their leaders.

5. Develop specific plans to ensure public or-der in areas of sports events.

6. Take steps to establish in stadiums and sports complexes cameras that provide a record of possible unlawful acts by means of video fans.

7. Bringing football fans of different clubs in joint projects of social and national scale for the purpose of consolidation in terms of providing public benefit activities.

8. Conduct extensive outreach and informa-tion actions involving famous coaches, football players, community leaders to participate in pub-lic companies against racism and violence in sta-diums.

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INTERRELATIONSHIP OF TRANSNATIONAL SEGMENT OF UKRAINIAN ORGANIZED CRIME AND TRANSNATIONAL

CRIMINAL MARKETS IN TERMS OF GLOBALIZATION

Zharovska H.P.,Candidate of Law, Associate Professor of Criminal Law and Criminology

Department of Faculty of Law,Chernivtsi National University named after Yuriy Fedkovych

The article deals with the problems of inter-relationship of Ukrainian segment of transna-tional organized crime and transnational crimi-nal market under the conditions of globalization. The conclusion is made: an active expansion of a “shadow economy”, practically substituting the legal economic sector, takes place in the process of this interrelation.

Globalization gives rise to a powerful system of transnational criminal organizations. Today in Ukraine there are formed shadow interregional and transnational criminal structures which pro-vide unprecedented in its scale theft of money and material valuables in the state, business enti-ties regardless of forms of ownership, attainment of excess profits from illegal activity on all types of merchandise markets.

It became apparent that the activity of large criminal structures owning huge financial re-serves and considerable social “weight” not only undermines the foundations of legitimate econo-my and causes the disfunction of its institutions, but also essentially affects political economic processes.

In consequence of criminal activity put on professional basis there is formed a huge mass of “dirty” money, and combating legalization of which is the basic task of national law enforce-ment agencies.

Thus, we have the possibility to state that to-day in Ukraine there is formed a parallel econ-omy covering almost all merchandise markets transforming them into criminalized sources for enrichment of individuals conducting their ac-tivities not only by breaking the laws of Ukraine but also forming a huge financial resource with-out the purview of the state. This situation is alarming with relation to the use of a given re-source which, in particular, can be directed to destabilization of the political situation in the country, and to support of parties and groups of radical orientation. Consequently, the decision on the interaction of transnational segment of Ukrainian organized criminal and transnational criminal markets in the context of globalization is transferred from economic level into political one requiring immediate political deciding on the highest level.

THE TERM «SYSTEM» AND «MECHANISM» TO COUNTER JUVENILE DELINQUENCY: THE PROBLEMS OF CORRELATION

Kolesnyk M.O.,Senior lecturer of the Department of legal disciplines

Sumy branch of Kharkiv National University of Internal Affairs

Countering juvenile crime – one of the most important tasks of the subjects. In counteraction juvenile delinquency is inherent in her system and mechanism. The concept and the nature of the studied groups are constantly developing im-proved and the deepening of understanding real-

ity. The purpose of the publication – analysis of approaches to understanding the mechanism and system for combating crime, including minors.

Countering Crime – activities of the public policy and society, including measures aimed at the prevention, deterrence, detection, investiga-

47


tion of crimes, victims and perpetrators installa-tion, bringing the past to justice and punishment. Countering crime of any nature or direction asso-ciates with social factors are intended act, a spe-cific social system.

System – is an objective unity naturally as-sociated with each objects, events, knowledge of nature and society, a set of elements and their properties.

The social management includes the follow-ing components: mechanism, structure, objects, functions, and personnel management process. It implies the existence of mechanisms that pro-vides economic impact on facilities management.

In Encyclopedic Dictionary of the gover-nance control mechanism is defined as «the ar-rangement of the internal control system, which determines the order management activities». R. Larina and A. Vladzymyrskyy, O. Balueva deter-mine the control mechanism as an integral, but an active part of the control system. N. Nyzh-nyk and V. Oluyko believe that comprehensive governance mechanism is a system of economic, motivational, organizational, political and legal mechanisms. O. Litvinov and J. Stupnyk indi-cate that the mechanism of combating crime is a function of the category of combating crime as a social phenomenon and serves as a vehicle for its practical potential.

The term «mechanism» in relation to counter-action juvenile delinquency should reflect how the organization and operation of the system,

characterized by forms in corresponding proce-dures of social processes and patterns. Therefore, the mechanism of anti-crime has the specific structural features as its business process with its inherent goals, objectives, functions, methods, principles, etc.

However, the term «mechanism» can be used in this case to characterize the functioning of counteraction juvenile delinquency, which dis-plays a specific activity as a systemic whole. It fixed the most common and essential features, the links between the needs and specific activi-ties to their satisfaction, that the achievement of a specific result from this activity.

Supports the view of O. Litvinov and J. Stupnyka understand the mechanism of forma-tion of system of norms, principles, institutions, forms, methods and tools, connections and re-lationships by which ensured criminological effects on specific targets to achieve these pur-poses.

Accordingly, the mechanism of combating juvenile delinquency is a set of forms, methods and means by which the relevant actors carried out various activities in combating juvenile de-linquency.

Thus, the mechanism of anti-juvenile delin-quency is an integral part of combating crime, he formed and operates within a particular system. The system of combating crime serves as a basis for realizing the potential mechanism for com-bating juvenile crime in general.

SOCIAL ADAPTATION OF THE INDIVIDUAL AS AN IMPORTANT PREREQUISITE FOR RESOCIALIZATION OF FORMER PRISONERS

Krysiuk Y.P.,Associate Professor of Theory and History of State and Law,

Eastern European National University named after Lesya Ukrainka

Article is dedicated to the analysis of the concept of social adaptation as the bases of suc-cessful re-socialization of former prisoners. Are examined forms and levels of the adaptation of personality, the relationship of social adapta-tion and socialization of person. The problem of social adaptation as the bases of successful

re-socialization of former prisoners, one of the central in the process of decreasing of level and overcoming of criminality, is located on the inter-section of criminology and correctional-working right. Better adapted personality more rapidly re-turns to the society, are restored socially useful connections, legal status of citizen. Social adap-

48


tation assumes interaction of personality and so-cial medium in the process of their public func-tioning. Man (carrier of consciousness) possesses the ability not only to receive the requirements of social environment new for it, but also to forecast his evolution. The basic characteristic properties of social adaptation are the following: it is the component part of the process of the socialization of personality; social adaptation is the complex and contradictory process of interaction of per-sonality and social medium; the essence of social adaptation is revealed in the categories: «social expectations», «the level of claims», «the passion of inadequacy»; the problem of social adaptation can be solved when individual will receive the requirements of society and direct environment

as personally for it acceptable, which it is ready to follow. Not is less important the psychologi-cal adaptation of personality, which indicates mastering the standards of behavior and personal orientations. The adaptation of personality as the method of its start in the system of standards, so-cial and moral values is inseparably connected with the lawful culture, with understanding of the political, moral, lawful phenomena existing in the society, with mastering of the orders of the stan-dards as her own vital installations indicated. It is accepted to distinguish three basic forms of the adaptive process: the active action of individual on the social medium predominates; the passive conformal entry of individual into the group; the active action of medium on the individual.

THE USE OF PSYCHOLOGICAL PRESSURE AS A METHOD OF CRIMINAL ATTACKS ON ELDERLY

Kurbatova I.S.,Applicant of the Department of Criminology and penal law

National Academy of Prosecution of Ukraine,Senior prosecutor of the Prosecutor’s Office in Kyiv

The elderly is a separate demographic and so-cial category that requires special measures for their remedy. These specific features as physical weakness, excessive credulity, carelessness and negligence, which is usually characterized by the elderly, making them too vulnerable to modern conditions of life.

Criminal legal science is not produced a single scientific definition of “psychological violence”, which makes it difficult to correct qualification criminal action and the damage primarily elderly victims and deepens further gaps in the safety of law enforcement activities.

The concept of “psychological violence” can be defined as criminalized intentional verbal (non-physical) impact on the behavior of a per-son who, because of the perception of reality, depressing state of mind and consequently alters subsequent behavior of the victim.

It should be noted that at present there is an urgent need for legislative definition of “coer-

cion” and “psychological coercion”, given that the legislator in Part 2 of Art. 40 Criminal Code of Ukraine it is without disclosure of its contents. Scientific and subsequently regulatory definition of these terms will prevent further ambiguous in-terpretation and practice skills improvement vio-lent crime in general.

Expedient to define the threat as a broader con-cept of content, given that the use of force is char-acterized by the specific purpose of the offender, while threats can speak with hooligan motives.

Further research needs to institute latency of violent criminal attacks using psychological pressure, the classification of the major groups affected by the degree of perception of violent psychological pressure, the result of which should be differentiation criminal liability for criminal acts on the most vulnerable, their cor-rect classification. In addition, this analysis will help develop practical measures to prevent crime in this area.

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THE PRACTICE PROBLEMS OF ENFORCEMENT OF SANCTIONS FOR THE CRIMES AGAINST MORALITY

Makarov A.V.,Doctoral Student of Department of criminal law of

Classical Private University

The article is devoted to revealing the content and features of the court practice of sanctions for offenses against morality in Ukraine. There was analyzed the practice of sanctions for these of-fenses.

The article emphasized that the issues of ap-plication of sanctions for offenses against mo-rality virtually no attention was paid by the all researchers who have studied the problems as-sociated with crimes against morality in general or specific types of crime. Sanctions engaged in a general context, that is their nature, form and characteristics of the application as a whole, con-tradictions size penalties in the Criminal Code of Ukraine, or system problems associated with cer-tain types of sentences.

There was an overall analysis of the problem using the method of content analysis of docu-ments of the criminal proceedings, primarily Ukraine court convictions of all the areas where there were proceedings for the prosecution of per-

sons in the commission of such crimes in the pe-riod from 07.09.2009 to 27.09.2013. There were examined 1404 documents that correspond to the level of accuracy possible in the representative-ness of ± 4%. This made it possible to accept the results of the study as reliable.

In the article was asserted that the sanctions regulations for crimes against morality require review not only in terms of the fundamental prin-ciples of sanctions, as mentioned above, but also in terms of practical expediency aside the obvi-ous softening and expanding the boundaries of alternative sanctions, withdrawal of legal prac-tice mandatory additional penalties. The court practice has already done it. It remains the turn of the legislation. This situation demonstrates a rare occurrence when the court practice, though not without violations of the rules of formal qualifi-cations and sentencing, demonstrates more pro-gressive and effective approach than a legislative approach to the problem.

CRIMINAL LEGAL SIGNIFICANCE OF FORMS OF COMPLICITY

Orlovsky R.S.,Candidate of Law

Assistant Professor of Criminal Law Department № 1National Law University named after Yaroslav the Wise

The current Criminal Code of Ukraine does not contain any form of complicity concept and its definition. Used terminology takes place only in the scientific literature.

Forms of complicity in a crime, such as com-mitting a crime by a group of persons, group of persons upon prior conspiracy, an organized group or criminal organization are reflected in the criminal law by setting the number of persons who are criminally responsible for the crime to-gether, and by the determination of the legal basis

and limits of criminal responsibility of those indi-viduals. Forms of complicity in the criminal law are used in three ways:

1) is a constitutive, compulsory feature of the primary elements of the crime (eg, articles 255, 257, 260 of the Criminal Code);

2) is a feature of large amount of crimes, which are provided for by articles of the Special Part of this Code, as the element of a crime, that affect the treatment of the principal’s actions, aggravate criminal liability (for example, p. 3 article 152,

50


p. 2 article 185, p. 4 article 187 of the Criminal Code);

Worth noting that current criminal legislation of Ukraine as aggravating circumstances uses only three forms of participation, namely: com-mitting a crime by a group of persons, a group

of persons upon prior conspiracy, an organized group.

3) a circumstance, aggravating punishment (eg, section 2 part 1 art. 67 of the Criminal Code).

These three aspects determine the significance of forms of complicity in a crime.

ANTIDRUG LEGISLATION IN CRIMINAL LAw OF SLOVAKIA

Pisar S., Doctor of Law, Faculty of Law Yasensky Janka, High School in Sladkovichovi, Slovak Republic

With the influence of drugs, we meet in the field of art and culture, such as the many paint-ings, sculptures and musical works were created as a result of drug inspired medieval artists. One of the oldest known drugs is a product of Indian hemp, which is known for more than five mil-lennia. Evidence found in many historical docu-ments. Cannabis has been named the source of happiness, laughter agent. This drug is known throughout South Asia. From there it spread throughout the world, where he earned a negative reputation. Today, the use of drugs, especially marijuana and hashish, is widespread. Therefore, it is clear that humanity in all possible forces pre-vents and prohibits drugs. Modern chemistry has given us not only an effective treatment, but also caused the spread of substances that are danger-ous and addictive.

In Western Europe, the epidemic among IDUs drug is likely to have stabilized or even decreased. However, some of the oldest EU also does not show at all flattering results. In others the new EU member states – the Czech Republic, Slovenia and Slovakia – the frequency of HIV in-fection among injecting drug users is very low, less than 1%. Consideration of the problem of the existence of drugs in our country and the world from the beginning to the present day shows the

continuing problem that interested, interesting and are interested in more than one generation of professionals.

Illicit drug addiction is a criminal factor. Il-legal narcotics are one of the main activities of international organized crime, and the pursuit of money laundering, which come from all kinds of organized crime and therefore illegal drug. De-scribe the relationship of addiction and crime can be based on different criteria. The definition of these criteria is made very specific subject that is characteristic of a particular science, for exam-ple, law, criminology, criminology, psychology, sociology and others.

Based on the analysis of recorded crimes in drug trafficking, one can say that they commit-ted some, their usual way. This method has par-ticular characteristics that make his Forensic content. Specific features are primarily motive, purpose, object, method, and criminal behavior at the scene of before and after the commis-sion and others. In practice, the police reveal crimes related not only to the illegal produc-tion, distribution, import, selling drugs, but also consumption and committing other crimes related to drug crime. The Slovak Republic has also has a notable place in the manufacture of drugs.

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ANTIDRUG LEGISLATION IN LIGHT TRANSFORMATION POLICY AGAINST DRUG CRIME

Stupnik Ya.V.,Candidate of Law,

Senior Lecturer of criminal law courses and International Criminal Law


The article deals with the question of history of formation and development of anti-drug legis-lation of Ukraine. The author analyzes the main stages that have passed the national anti-drug policy in its genesis.

Determined that the criminological com-ponent is inseparable part of the national penal policy, implemented through a system of laws aimed at combating crime in general and its vari-ants, including drug crime. It is noted that the his-tory of the formation and development of public policy to combat the spread of drugs in the Soviet and post-Soviet times and today has not always been systematic, calibrated and consistent, char-acterized by mixed approaches, the presence of extremes when making decisions, changing hard crackdowns on liberal and soft.

It was determined that the formation of laws governing politics combating drug crime can be divided into three stages.

First – Laws control period (1922-1991 years). During this period, the Soviet Union was a system of legal measures to combat drug: ad-ministrative responsibility, criminal responsibil-

ity, voluntary and compulsory medical measures.The next stage – the period of liberalism and

democratization attempts to anti-drug laws. This is the most controversial stage characterized by the adoption does not always thoughtful and even polar solutions in the fight against drug trafficking.

The current third phase of the national anti-drug laws – the period of the beginning of a re-turn to the control of illicit drug use.

The article concludes that public policies com-bating drug crime criminal must fully meet mod-ern realities. All changes to the criminal law must substantiate consider carefully identified and pro-jected trends in drug crime, its structure, new spe-cies, groups of criminals, etc.

Criminology and Criminal Reform legislation should be based on clear and clear understanding of changes in the state structure and dynamics of crime can be achieved by improving relevant in-stitutions and norms.

In this regard, the obvious is the fact that now there is Gotra need for basic document on the ba-sis of state policy to combat crime.

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USING OF THE SPECIAL KNOwLEDGE FOR REALIZATION OF SEARCH IN THE PROCESS OF INVESTIGATION OF CRIMES

PERFECT IN PENITENTIARY ESTABLISHMENTS

Batiuk O.V., Candidate of Law,

Associate Professor, Head of Department Criminal Law and Procedure

of East European National University named after Lesya Ukrainka

Section 9criminal proceSS and forenSic Science;

forenSic examination; operatively-Search activity

The provisions of the scientific article, the au-thor discloses the use of particular expertise in conducting a search in the investigation of crimes committed in prisons. On this basis, suggested ways to improve the implementation of the pro-visions of the criminal tactics of the search as specific investigative action in the special condi-tions that inherent in penitentiaries. The need for a search in the investigation of crimes committed in prisons, there is almost always because with its help can be obtained from evidence of criminal activity to specific individuals, the composition and structure of criminal groups and others. In studies devoted to the problems of forensic soft-ware search, one of the key conditions for opti-mizing the investigator named using care profes-sional.

Note that in order to improve the provisions forensic search tactics proceedings in prisons:

- Firstly, it is advisable to look for traces of the desired object , formed during their pres-ence in the room , paths, indentation , scratch the floor and walls of the large items; layer-ing of objects containing liquid on linen in closets, books, fibers protruding furnishings,

which can then be used for identification;- Secondly, upon detection of objects were

used in the study for proving system “subject – matter – the offense” action specialist forensic performed in the following order: 1) help the in-vestigator in precise notation in the record of the circumstances of the search and the places they detection. It should carry out photography site is from found objects , and then the same subject; 2) Review the found object to determine its purpose, condition, description of general and specific fea-tures; identify signs and symptoms that indicate his involvement in the event, which is being in-vestigated , and a particular person : search for traces of the forward and reverse action: for ex-ample, traces of hands – on items stolen guns and cracking of soil – on clothes, shoes, gloves, tools burglary; 3) preparation of relevant documents;

- Thirdly, have to be developed information-cognitive model of expert forensic investigator with assistance in the collection of forensic rel-evant information during the search, which will be an effective instrument of information basis investigate crimes committed in a penal institu-tion.

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THE ESSENCE OF AN ACTIVE AND PROACTIVE OPERATION OF THE COURT IN CRIMINAL PROCEEDINGS

Vapnyarchuk V.V.,Сandidate of Law

Assistant Professor of criminal procedure, National Law University named after Yaroslav the Wise

The term “active” and “proactive” activities are not equivalent for meaning: not every activity is an active initiative, but each initiative activity is active. Therefore initiative activity is more nar-row category, a component of the court activity.

Based on the analysis of current criminal pro-cedural law and practice, and research devoted to it can be concluded that the court in criminal pro-ceedings may exercise initiative. The only form of the initiative powers of the courts in criminal proceedings is a judicial discretion (or the discre-tion of the court).

The essence of discretion is freedom of choice of several legal alternatives (each as defined in the law intended, principles, circumstances and evidence- based). That is the idea of choice is the central idea of appreciation. Determination of a

suitable alternative should be in accordance with the law specified goals, objectives, principles of criminal proceedings, its circumstances and the existing evidence base, as well as moral and legal categories of intelligence, integrity, fairness and proportionality. Thus, subject to judicial discre-tion in criminal proceedings should be understood implemented in regulated law applying a specific type of court activity, the essence of which lies in the implementation of the grounds specified by law own free will choice of several alternatives most effective (efficient), based on the objectives defined by the law, objectives and principles of the criminal proceedings, its circumstances and the existing evidence and guided by moral and legal categories of fairness, honesty, reasonable-ness and proportionality.

MODELING OF PERSONALITY OF UNKNOwN CRIMINAL DURING JUDICIAL-PSYCHOLOGICAL RESEARCHES

Getman G.M.,junior scientist of laboratory «Using of modern accomplishments of

science and technic in committing crime»,Scientific institute of study of crime problems named by V.V. Stashis of


In the conditions of present time activity in relation to investigation of crimes and establish-ment of truth from criminal realization is impos-sible without usage of the special knowledge out of limits. Thus forms of the usage of the special knowledge can be sufficiently different, it could be consultation of specialist, bringing in of spe-cialist of certain area of knowledge during real-ization of inquisitional actions, setting and real-ization of judicial examinations. Together with that the usage of any form of the special knowl-edge envisages application of certain methods of

research. One of them that cause interest of sci-entists, a modeling method is. It is necessary to notice that for today complex researches of appli-cation of modeling method in criminalistics and theory of judicial examination are absent. Mainly in the special scientific literature the questions of structure of models for a study and verification of certain properties and signs of certain object are investigated. In particular, it is not enough inves-tigational are problems of modeling of personal-ity of unknown criminal during judicial-psycho-logical researches.

54


The article of Halyna Mykolaivna Hetman “Modeling of personality of unknown criminal during judicial-psychological researches” is de-voted to the pressing questions of construction of modeling personality of unknown criminal dur-ing judicial-psychological researches.

In the article possibilities of modeling person-ality of unknown criminal within the limits of noncontact psychodiagnostics of personality of unknown criminal from bringing in of specialist-psychologist are considered, and also possibility of modeling personality of unknown criminal during realization of judicial-psychological ex-amination.

Certainly, that modeling of personality of un-known criminal during judicial-psychological re-searches is a construction of model by a specialist-psychologist or by a judicial expert-psychologist, that exposes psychological features and psycho-logical processes, namely: reasons, necessities, motives, feeling, emotions, presentations, percep-tions, orientations, intellectual capabilities, and others like that; essence of behavior of certain person explains; exposes such descriptions that express attitude of personality of unknown crimi-nal toward producible by it actions (inactivity), to surroundings and itself under time, and also to the commission of crime and after its committing.

STRUCTURAL ELEMENTS OF MECHANISM FORENSIC ExPERT ACTIVITY

Hryndei L.M.,PhD, Associate Professor,

Associate Professor of Criminal LawFaculty of Law and Criminology,

Chernivtsi National University named after Yuriy Fedkovych

Forensic expert activity is one of the most critical aspects of modern and adequate assess-ment of baseline data from which fundamentally depends on the result of pre-trial and trial, and ultimately, the fate of many interested people in the trial. Review of the forensic expert activity (SMED) as a complex of organized activities, its content, object, structure of subjective structure, communication with law enforcement, is impos-sible without exogenous approach. Identifying patterns of constructing forensic expert activity, the optimal value of its structure and function re-quires a broad and in-depth application of mod-ern cognitive tools.

Review of the forensic expert activity (SMED) as a complex of organized activities, its content, object, structure of subjective structure, com-munication with law enforcement, is impossible without exogenous approach. Therefore, the con-cept of forensic expert activities should be de-signed based on the concepts of holistic (system) objects that are defined in the so -called general

systems theory and which find their basis in fun-damental scientific positions of dialectical logic, dialectical materialism, the philosophy of hu-manitarian and technical knowledge at the basis of scientific methods of research as systematic, systemic and structural, functional, and structural and systemic-functional analysis.

With the concept of the mechanism of foren-sic activities, especially closely related and it in-cluded the concept of forensic expert system as holistic entities forensic expert activity (forensic experts, forensic expert institutions, managers), including results of their activities, the distribu-tion of the territories, departments, process in-dustries and interconnected ratio of subordina-tion and coordination.

Analyzing all the above said, we came to the conclusion that trying to highlight features forensic expert activities, decades will allow to implement these activities in the processes of integration and differentiation of scientific knowledge.

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THE PURPOSE OF CRIMINAL PROCEEDINGS IN UKRAINE: THE THEORETICAL PROBLEM OF CONTENT

Zhurba A.I.,Candidate of Law, Associate Professor of department of criminal procedure,

Donetsk Law Institute of Ministry of internal affairs of Ukraine

The article considers the nature of the forma-tion of the purpose of criminal proceedings. The aim of the work is to determine the existence of the purpose of criminal proceedings in accordance with the system taking into account the emergent nature of its results. Considered modern scientific point of view, the subject of which is the purpose of criminal proceedings. Concludes that the pur-pose of the criminal process in this area of law is devoid of subjective evidence that excludes its existence. At the end stated that the purpose of a criminal proceeding should remember when it comes to activities of a particular participant in

the proceeding, which is inherent in modeling of future results, but it cannot be regarded as general purpose of criminal proceedings. Given the emer-gent properties of the final result of his attempt to prove the absence of a common goal of the crimi-nal process and instead determined that there pur-pose of criminal proceedings, as an external fac-tor, which determines the content and structure of the relevant activities and the legal field. Recom-mendations regarding further research in which it is advisable to consider the appointment of the internal contents of the criminal proceedings, its types and factors of influence on him.

SOME ASPECTS OF DETECTIVE AND SEARCH CHARACTERISTICS OF LEGALIZATION THE ILLEGALLY OBTAINED PROFITS

Zablotska O.Yu.,Candidate of Law,

Senior Scientific Associate, Senior Research Officer, National Research Institute of Ministry of Interior of Ukraine

Legalization (Laundering) of “dirty” money – one of the most negative factors affecting the efficiency and intensity of social reform eco-nomic relations. This phenomenon has become very prominent in the world. Estimates today are piled illegally obtained profits and rotate “dirty” money is the equivalent of more than $500 bil-lion. United States, because this writing is ex-tremely important, the article revealed aspects of the operational characteristics of legalization of proceeds from crime.

Huge amounts of illegal income accumulated in the field of organized crime and the informal economy, constantly in need of legalization. The basic ways of committing crimes related to legalization (laundering) Obtaining a crimi-

nal way. In terms of today there are a variety of forms, methods and tools launder illegally acquired funds, the number unquantifiable. Their diversity is certainly complicates the fight against legalizing this kind of income. Howev-er, knowledge of the main ways of committing this type of crime provides an opportunity to unite the whole array of information on money laundering and identify means efficiency gains counteracting. The method of shadow money capital includes such valuable information that even the most problematic situations effec-tively performs a search function, allowing you to compile and use meaningful information to prove the circumstances relevant to the case, set the perpetrators.

56


wORK OF THE COURT, PROSECUTOR AND INVESTIGATOR OF PROVING A CIVIL CLAIM IN THE CRIMINAL PROCEEDINGS

Kravchenko N.S., Postgraduate student in Department of Criminal Process,

National Academy of Internal Affairs

Article celebrated scientific novelty; concep-tualize issues raised in it and the author’s own position on defined research question.

It’s devoted to the spirit and content of the ac-tivities of the court, the prosecutor and investigator for proving a civil action in criminal proceedings under the action of the Criminal Procedure Code, which entered into force on 20 November 2012.

The article analysis compared the activities of the court, prosecutor and investigator of proving a civil claim in the criminal proceedings, both in terms of force of the Criminal Procedural Code of Ukraine (1960), and the conditions of validity of the Criminal Procedural Code of Ukraine (2012).

Also in the article are the author’s own clas-sification of subjects of criminal proceedings, examined the close relationship activity of the court, prosecutor and investigator of proving a civil action under preliminary investigation of criminal offenses and in proceedings.

The results of his study the author emphasizes that the prosecution evidence is inextricably linked to the type and amount of evidence of harm caused to the victim. Therefore, the burden of proof and property damage, which is refundable for a civil claim relies on the investigator and prosecutor. The work of the court at the trial stage of the pro-ceedings is aimed at providing a civil action.

STAGES OF HISTORICAL DEVELOPMENT THE PROCEDURE OF INTERNATIONAL wANTED OF PERSONS

Lіashuk O.M.,Assistant of the Department of Criminal Law,

Criminal Procedure and CriminalisticsNational University of State Tax Service of Ukraine

Procedure of international wanted persons has a long history. Although the international wanted of persons has an ancient practice, is very few historical documents that would indicate the presence of both the investigative function in activities of state structures and the existence of international cooperation in this area.

In every historical period, international co-operation in tracing individuals had specific fea-tures of the socio- economic structure. During slavery interstate relations in this area were limit-ed to conclude treaties on extradition of refugees. In this context, we can isolate the first stage of the procedure of international wanted of persons, which is the conclusion of treaties between states on extradition.

However, the international wanted of persons

is not mentioned in the documents, which were preserved in the literature. The reason for this is that by the beginning of XIX century there was no single public service with specialized func-tions which were aimed at maintaining public order. Therefore, we can identify the second pe-riod in the development of international wanted of persons – creation of specialized bodies at the national level, the main function of which was international wanted of persons.

The third period in the development of inter-national wanted of persons includes the estab-lishment and activities of international organiza-tions. This period was created to unite the efforts of in search of persons. That’s why in 1923 the International Criminal Police Organization was created -Interpol today.

57


THE CONSTITUTIONAL PRINCIPLE OF THE RIGHT TO PROTECTION AND ISSUES OF LEGAL STATUS OF THE DEFENDER

Melnyk O.V.,Candidate of Law, Assistant Professor of criminal procedure,

National Academy of Internal AffairsTrop O.V.,

cadet of Training and Research Institute attraining specialist forensic units,

National Academy of Internal Affairs

This article focuses on current issues relating to the constitutional principle of the right to the protection of individual and controversial issue of the legal status of counsel, based on the analy-sis of existing legislation.

The Constitution of Ukraine proclaimed dem-ocratic, legal and social state (Article 1). The meaning of the rule of law is revealed in art. 3 of the Constitution: “A man’s life and health, honor and dignity, inviolability and security are recog-nized in Ukraine as the highest social value. The rights and freedoms and their guarantees deter-mine the essence and orientation of the state. The state is responsible to the people for their activi-ties. The promotion and protection of rights and freedoms is the duty of the State”. Right to pro-tection is not only guarantee a person’s interests,

but also to guarantee the interests of justice, it is a social value. Extending the right to defense is not an obstacle solve crimes without causing avoid-ance of criminal liability, but rather contributes to the objectives of the criminal justice system, pre-vent investigative and judicial errors. Ensuring the rights of defense are the constitutional prin-ciple of criminal procedure and one of the basic principles of justice. Unfortunately, the Constitu-tion of Ukraine does not specify what is meant by the right to protection. The current Code of Ukraine the right to protection is reduced to pro-vide explanations about the suspicion or accusa-tion, which according to the CPC of Ukraine are not sources of evidence, and the right to gather evidence, to personally take in the process and to have the assistance.

ACTUAL QUESTIONS OF THE CRIMINAL PROCESS OF UKRAINE

Trofymenko V., Candidate of Law,

Senior Lecturer, Department of Criminal Process, National Law University named after Yaroslav the Wise

A number of theoretical approaches to under-stand the system of criminal process according to the new CPC (Criminal Procedure Code) is analyzed in the article. Based on the research of the scientific positions of the law theoreticians we have extracted some components that form the content of the processual proceeding and the stages as the parts of the system of the criminal process. The author’s definition of the ‘criminal processual proceeding’ is determined.

The analysis of the essential features of the

criminal processual proceeding allowed to sepa-rate it from other similar concepts, the stages of the criminal process in particular. By their con-tent and volume a proceeding and a stage are complex and polystructural and that shows that they have common features. We make a conclu-sion that by comparing the features of the pro-cessual proceeding and the stage of the criminal process such of them as a presence of focused specifics of legal relations, peculiarities of order and ways of realizing of processual acts, final

58


processual act are usual for both shown structural components of criminal proceeding. Meanwhile, unlike the stage, a processual proceeding is char-acterized by a certain level of autonomy in the system of criminal process, what is concluded in the absence of its imperative connection with other processual proceedings. Furthermore by its volume and structure a processual proceeding is a more wide concept, because all the above men-tioned elements of the system of the criminal pro-cess are parts of its structure. These are stages, phases of stages, processual acts and elementary processual acts.

It’s pointed out that the system of criminal proceeding consists of processual proceedings which structure is created from certain stages. It’s concluded that the primary system formation in the structure of the criminal process is a polys-tructural proceeding that includes five stages – getting information about a criminal violation, a prejudicial inquiry, a preliminary procedure, a

judicial inquiry and an execution of judgments. All the shown stages of this proceeding have a functional-temporal connection with each other and they are directed to completing the tasks of the criminal proceeding. They are fixed in section 2 of CPC of Ukraine.

Besides it’s pointed out that together with the primary proceeding to the system of the crimi-nal process separate proceedings concerning the review of judgments also affiliate – appeal and cassational proceedings, a proceeding in newly discovered circumstances as well as a proceeding in the Supreme Court of Ukraine.

At the same time it’s pointed out that the char-acteristics of the system of the criminal process is not limited by availability of main proceedings in it. Some separate proceedings are also included in it. Basically there are legal relations that have another trend and they are not connected with those that appear in conjunction with committing a criminal violation.

FEATURES GROUNDS OF PREVENTIVE MEASURE

IN CRIMINAL PROCEEDINGS

Shylo O.H., Doctor of Law, Head of Department

criminal process and operational, National Law University named after Yaroslav the Wise

Certain problems of using the CPC of Ukraine (Criminal Procedure Code) in part of the law regulation of grounds and order of choosing of advanced measures in the criminal proceeding.

It’s pointed out that the CPC has essentially renewed the system of advanced measures by adding to it house imprisonment, personal charge as well as by involving its specific advanced measures to certain categories of individuals ac-cording to the CPC.

It’s cleared up that the order of using of ad-vanced measures created by the CPC of Ukraine provides conditions for saving processual con-cussion connected with incarceration of an indi-vidual. It’s determined by the high value of rights and freedoms of an individual, what causes the necessity of implementation of a special proce-

dure that contains guarantees which make impos-sible their unproven restriction during realizing the criminal proceeding. Exactly this procedure creates the content of a separate juridical proce-dure in ensuring legalness of restricting of con-stitutional rights and freedoms of an individual by court during a prejudicial inquiry. On grounds of all above mentioned, making a decission to choosing of advanced measures and a prolonga-tion of terms of their duration is related to the exclusive jurisdiction of the investigating magis-trate (during the prejudicial inquiry) or the court (in the juridical procedure). At the same time this order requires improvement for the purpose of its optimisation and protection of the rights and freedoms of the participants of the criminal pro-ceeding.

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It’s pointed out that the guarantee of safe-guards for the rights of an individual by apply-ing of advanced measures is a legal requirement of foundation of a prayer of a detective, a prose-cutor, what causes settling of this subject as well as a determination of the investigating magis-trate, the court concerning their applyment or a

prolongation of terms of their duration. Only a grounded probability that is based on the evi-dences given to the court secures that standard of averment which can be admitted as enough for applying of an advanced measure and a rec-triction of a constitutional right of an individual because of it.

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PROBLEMATIC ISSUES OF THE DEFINITION OF «LAwYER CONFIDENTIALITY»

Zaborovsky V.V., Doctor of Law,

Associate Professor of Civil Law DepartmentSHEE “Uzhhorod National University”

Hеchkа K.V.,Faculty of Law

SHEE “Uzhhorod National University”

Section 10Judicature; public proSecution and advocacy

The article focuses on the main aspects of the concept of confidentiality, its content and scope, sources and subjects. The paper addresses the problem of concept formation “of confidential-ity” as a legal category, as well as the institution of law. It analyzes the main research portfolio to determine the scope and content of the concept of confidentiality.

The author of the article raised the question of criteria for classifying information to one that can defend law secret and highly controversial ques-tion of keeping secret the person who asked the lawyer, whether the principal is or a third party.

The problem of assigning subjects to the pro-tection of confidentiality of legal advisers, the au-thor analyzes the feasibility of foreign experience to address this controversial issue.

Also the author of the article discusses the

possibility of disclosure of confidentiality, de-pending on the quality of the information – posi-tive or negative with respect to the client.

Was determined the main sources and entities, and proposed own vision of classification of sub-jects of confidentiality.

In particular, the author made the issue of the need to change the classification of the subjects of confidentiality, proposed his own classification of individuals and the necessity of making such changes.

The author tries to derive the most general and universal concepts of confidentiality, which will cover all the features of this institute. The author considered the beginning of the protection of confi-dentiality. The article was actually proposed defini-tion of “lawyer confidentiality” which embraces the all the most important features of such a concept.

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ESSENTIAL AND FUNCTIONAL CHARACTERISTICS OF LEGAL IDEOLOGY

Lutskyi A.I.,PhD (Law), Assistant Professor, Vice-Rector,

Ivano-Frankivsk University of Law named after King Danylo Galytskyy

Section 11philoSophy of law

Philosophical and legal analysis of the concept of legal ideology in the framework of analytical and legal as well as functional research methods is conducted in the article.

From the analytical and legal points of view legal ideology is considered to be a set of ideas, theories, notions and concepts reflecting legal relations which exist in the society and direct-ing their further development. On the basis of this definition, by means of its technical anal-ysis some elements of legal ideology are de-fined: legal ideas, legal concepts, legal notions etc. The functional research method is founded on the basic indicators and primary statements, in other words, the concept of legal ideology is based on the function, analysis and use of its potential.

In the framework of the abovementioned the author proves that legal ideology is a phenom-enon which reflects demands, wishes and legal expectations of the society forming it.

In the scientific article legal ideology is ana-lyzed in reference to legal psychology and legal

conduct which are the main components of legal ideology.

Concerning functional characteristics of legal ideology, the reflection of the legal sphere of so-cial life and development of social relationships, in the author’s opinion, is one of its basic func-tions. Legal ideology provides evaluation results of legal life, basing on proper legal terms and le-gal theories. They are the very elements which are included into the system of legal conscious-ness – evaluation criteria of legality (perceptive and evaluative content).

The author of the article proves that legal ide-ology has a great impact on all legal and social spheres of the life of society and state. Due to the accurate definition and perception of legal ideol-ogy the citizens of our country were able to prove this empirically: observe transformation of law making and enforcement processes during the first decades of the Ukrainian independence. Our society has transformed from the dependent state into the independent participant of global politi-cal relations.

Scientific edition

SCIENTIFIC HERALD OF UZHHOROD NATIONAL UNIVERSITY

Series JURISPRUDENCE

Edition 25

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Desktop publishing • Nataliya Kovalchuk

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