Law and Safety

Stabilisation measures on the de-occupied territories: conceptual interpretation, classification, and application features

K. L. Buhaichuk — Fri, 29 Mar 2024 00:00:00 +0200

The publication provides a scientific analysis of the “stabilisation measures” concept which has recently been used to determine the specifics of public authorities and law enforcement agencies' activities on the de-occupied territories of our country. It has been proved that the concept of “stabilisation measures” arose in the course of NATO peacekeeping operations in the Balkans and is primarily associated with law enforcement activities of specially authorised military units capable of performing police functions. According to NATO’s Joint Doctrine (AJP-3.22), stabilisation measures are defined as special activities aimed at strengthening or providing temporary replacement for local police forces to help restore and/or maintain public order and security, the rule of law and the protection of human rights.

It is emphasised that the understanding of the content of stabilisation measures in national and foreign practice is different. Foreign researchers mainly associate stabilisation measures with law enforcement actions: ensuring public order and security, combating crime, protecting civilians, etc. In our country, a broader interpretation of the term has been formed, which, in addition to purely police measures, includes social, humanitarian, informational, and economic measures that cover the comprehensive restoration and development of the de-occupied territories.

It is proposed to divide stabilisation measures into general and special ones. The first type is related to the restoration of state power on the de-occupied territory, as well as to ensuring the vital activity of its civilian population. Special stabilisation measures are carried out to prevent sabotage and reconnaissance groups and illegal armed groups from entering the de-occupied territory and committing terrorist acts on infrastructure and communications facilities, ensuring public safety and order, preventing and suppressing crimes and other offences, eliminating the consequences of emergencies, and searching for persons who have committed crimes against the foundations of national security, war crimes and other offences during the occupation of the territory.

The number of conceptual provisions on the interpretation of the definition, purpose, principles, types and peculiarities of application of stabilisation measures in Ukraine have been formulated.

Some aspects of the abuse of rights in civil and economic proceedings

K. M. Hurtova — Fri, 29 Mar 2024 00:00:00 +0200

The article is devoted to the analysis of abuse of procedural rights in civil and economic proceedings. The views and approaches to the problem of abuse of rights available in the legal literature are considered.

Based on the review of scientific literature, the conclusion has been made that there are two general theoretical constructs for understanding the concept of “abuse of procedural rights” within the framework of two approaches. The first approach involves the definition of abuse of procedural rights as misuse of procedural rights, and the second approach – as a type of procedural offence. The article analyses the national legislation on the subject matter of the study.

It is argued that the abuse of procedural rights is a certain situation which participants to court proceedings find themselves in, whose rights are violated and are directly related to the rights of the person who abuses them. The exercise of procedural rights is carried out by one party to the dispute within certain limits, as long as it does not contradict the interests of the other party. Violation of these limits leads to the emergence and existence of such a legal phenomenon as abuse of rights.

It is established that abuse of procedural rights means that one of the parties to a dispute, which formally has certain rights, unlawfully exercises them, violating the extent and type of behaviour defined by the procedural law, while taking advantage of the fact that these rights cannot be objectively clearly defined by means of direct prohibitions. In other words, when exercising their rights, the parties to the dispute do not take into account all the actual circumstances and do not take into account the possible harm to each other’s interests.

Attention is drawn to the fact that the diversity of procedural rights in civil and commercial proceedings gives rise to a corresponding number of types of their abuse by the parties to a case. Due to the absence of a clear list in current legislation of the types of abuse of procedural rights and the existence of certain judicial practice in resolving this category of cases, it should be noted that there are various classifications by scholars.

Administrative and legal regulation of licensing for medical practice

О. V. Batryn — Fri, 29 Mar 2024 00:00:00 +0200

The article is devoted to the peculiarities of legal regulation of licensing for medical practice. The provisions of laws and regulations governing the procedure for obtaining a licence to practice medicine are studied. The scientific works of scholars in the fields of law, medicine, and public administration who have studied legal relations in the field of healthcare and licensing are studied. Recommendations for amending the legislation are formulated.

The author proposes a definition of licensing for medical practice as a means of state regulation of medical care and medical assistance compliance with the established licensing conditions with a view to protecting the life and health of patients and ensuring the provision of quality medical services.

The article establishes that there are certain peculiarities of licensing for medical practice in comparison with other types of economic activity. A specially created licensing commission of the Ministry of Health of Ukraine reviews documents for obtaining a licence. The licensing regulations set out specific personnel, technological and organisational requirements that the founders of healthcare facilities must meet before submitting documents for a licence. A special package of documents is prepared to be attached to the licence application and provides for the description of the material and technical base and personnel of the healthcare facility. The activities of the entire healthcare facility, rather than individual healthcare professionals, are subject to licensing.

A number of proposals for amendments to the legislation are proposed, namely: 1) to consolidate the concept of medical service as a separate, specific type of medical procedure, diagnosis of a particular disease, rehabilitation, cosmetic care, health massage, paid examination; 2) to define in the licensing conditions more detailed technological requirements for the area of certain premises of a healthcare facility and medical equipment necessary for the treatment of certain diseases; 3) the author supports the position that it is expedient to develop and adopt the Medical Code of Ukraine as a comprehensive legislative act which would regulate legal relations in the field of healthcare.

Problems of abuse of law when applying to the European Court of Human Rights

V. V. Lazariev, I. A. Lohvynenko — Fri, 29 Mar 2024 00:00:00 +0200

The article focuses on the fact that abuse of law is not only an urgent problem of modern legal science, but also one of the most complex and important issues to be addressed. This phenomenon is becoming aggressive and global, negatively affecting the processes of democratisation and consolidation of statehood. The prevalence of cases of abuse of law can slow down the development of society, violating the acquired norms and values. It is important to understand that achieving stability in social relations and their further development is impossible without taking into account the specifics of this legal phenomenon. Abuse of law not only violates the basic principles of law, but also poses a significant threat to the development of the rule of law and the determination of its future course.

The particularities of the use of the term “abuse” in international law are determined. It is noted that the European Court of Human Rights considers that this concept should be understood in its ordinary meaning, namely, as the fact of exercise of a right by a subject of law outside its intended purpose in a manner which causes prejudicial damage. The author identifies the approaches to understanding the abuse of law which are used by the European Court of Human Rights in its work.

It is noted that in addition to the Convention for the Protection of Human Rights and Fundamental Freedoms, the provisions defining the basis for preventing abuse of law at the international (supranational) level are also contained in the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the Charter of Fundamental Rights of the European Union.

The author examines a number of judgments of the European Court of Human Rights in which cases of abuse of law occurred. The author defines the role of the state in cases of abuse of law. The main features inherent in the abuse of law are outlined. Attention is paid to the fact that in addition to the positive components of preventing abuse of law, this activity also has negative consequences.

The importance of preventing abuse of law is emphasised, subject to the obligatory observance of the principles of fairness, transparency and consideration of individual rights and freedoms of subjects. Ensuring a balance between the protection of rights and prevention of their abuse is an important task for the effective work of the European Court of Human Rights.

Criminal procedural consequences of the court’s return of an indictment to the prosecutor

O. M. Drozdov, N. V. Glynska, I. V. Basysta — Fri, 29 Mar 2024 00:00:00 +0200

The article analyses the criminal procedural consequences which will occur under the current Criminal Procedure Code of Ukraine if the court returns an indictment to the prosecutor. Based on a comparison of the provisions of the Criminal Procedure Code of Ukraine of 1960 and the current Criminal Procedure Code of Ukraine, it has been established that the current consequences of returning an indictment by a court are different from those which existed when a case was returned for additional investigation under Article 246 of the Criminal Procedure Code of Ukraine of 1960 by a judge's decision. It has been argued that no practical attempts should be made, contrary to the provisions of the current Criminal Procedure Code of Ukraine, to impose on the existing (albeit not perfect) procedural procedure for the prosecutor to eliminate the deficiencies of the indictment, the features of additional investigation which are not inherent to it.

It has been determined that the return to the prosecutor of an indictment or a petition for the application of compulsory medical or educational measures due to the fact that they do not meet the requirements of paragraph 3 of Part 3 of Article 314 of the Criminal Procedure Code of Ukraine does not resume the pre-trial investigation, nor does it restore the course of its term. It has been proved that after returning the said procedural documents to the prosecutor, the prosecution should act without unreasonable delays and should not conduct new investigative (search) actions or other actions related to the collection of evidence. Such a return does not exclude the possibility of the prosecutor performing certain procedural actions which are of an organisational nature or are necessary to ensure the execution of a court order and to correct the deficiencies of an indictment, or a request for the application of compulsory medical or educational measures. It has been argued that a prosecutor may not, by abusing his/her rights (powers), i.e. contrary to the scope and procedure for exercising his/her discretionary powers, use the return of the above documents to actually continue the pre-trial investigation and eliminate its shortcomings. It has been concluded that in case of the opposite development of events, due to the commission of a criminal procedural offence by the prosecutor, there will be grounds for criminal procedural consequences, for example, the court's declaring the evidence inadmissible or those provided for in paragraph 10 of Part 1 of Article 284 of the Criminal Procedure Code of Ukraine.

Activities of the Minister of Internal Affairs of the Ukrainian SSR Pavlo Yakovlevych Meshyk (1953)

V. A. Grechenko — Fri, 29 Mar 2024 00:00:00 +0200

The article examines the insufficiently studied in historical and legal science issue of the activities of such a controversial political figure of the first post-Stalin months of 1953 as Pavlo Yakovlevych Meshyk. It is emphasised that he, having a university degree (which was rare for NKVD personnel in those years) and significant organisational skills, made a successful career in the central apparatus of the People’s Commissariat in the late 1930s. This was also due to the patronage of P. Meshyk by L. Beria. P. Meshyk was directly involved in Stalin’s repressions. In 1941, at the age of 30, he first became People’s Commissar for State Security of the Ukrainian SSR. In 1943, he was promoted to the rank of Lieutenant General. From 1945 until March 1953, he worked on the implementation of the Soviet nuclear project. He was awarded the Order of Lenin (1949) for his active participation in the implementation of the nuclear programme, and later even received the Stalin Prize in Science and Technology (1951). In March 1953, he was appointed Minister of Internal Affairs of the Republic, where he pursued a policy of strengthening the rule of law in the activities of the state security agencies and purging them of the most odious and incompetent employees. At the same time, a policy was implemented to rid the state security agencies of their dependence on the influence of the Communist Party. At the same time, P. Meshyk came into conflict with some party officials, including the then leader of the republic, the first secretary of the Central Committee of the CP(B)U, L. Melnikov. As a result, L. Melnikov was dismissed. P. Meshyk also took some measures to “root” the leadership of the Ministry of Internal Affairs, translated the ministry’s office work into Ukrainian, eased some of the Soviet government’s repressive policies towards the Ukrainian national liberation movement, actually restored the normal operation of Lviv State University, and improved contacts with Western Ukrainian intellectuals. These were positive aspects of the minister’s activities that can be assessed as attempts at reform. However, P. Meshyk stayed in the post of Minister of the Interior for only three months. In June 1953, he was arrested and later convicted on charges of treason and conspiracy to seize power, and in December of the same year, Meshyk was shot dead. He was partially rehabilitated in 2000.

Tracking illegal activities using video surveillance systems: a review of the current state of research

D. O. Zhadan, M. V. Mordvyntsev, D. V. Pashniev — Fri, 29 Mar 2024 00:00:00 +0200

The current state of research on the use of the neural networks under martial law to identify offenders committing illegal acts, prevent acts of terrorism, combat sabotage groups in cities, track weapons and control traffic is considered. The methods of detecting illegal actions, weapons, face recognition and traffic violations using video surveillance cameras are analysed. It is proposed to introduce the studied methods into the work of “smart” video surveillance systems in Ukrainian settlements.

The most effective means of reducing the number of offences is the inevitability of legal liability for offences, so many efforts in law enforcement are aimed at preventing offences. Along with public order policing by patrol police, video surveillance is an effective way to prevent illegal activities in society. Increasing the coverage area of cameras and their number helps to ensure public safety in the area where they are used. However, an increase in the number of cameras creates another problem which is the large amount of video data that needs to be processed. To solve the problem of video data processing, various methods are used, the most modern of which is the use of artificial intelligence to filter a large amount of data from video cameras and the application of various video processing algorithms. The ability to simultaneously process video data from many CCTV cameras without human intervention not only contributes to public safety, but also improves the work of patrol police. The introduction of smart video surveillance systems allows monitoring the situation in public places around the clock, even if there is no police presence in the area.

In the reviewed studies of video surveillance systems, neural networks, in particular MobileNet V2, YOLO, mYOLOv4-tiny, are used to track illegal actions, criminals and weapons, which are trained on large amounts of video and photo data. It has been found that although neural networks used to require a lot of computing power, they can now be used in IoT systems and smartphones, and this contributes to the fact that more video surveillance devices can be used to monitor the situation.

Legal liability: seven doctrinal approaches to understanding its essence

V. H. Zhornokui — Fri, 29 Mar 2024 00:00:00 +0200

The article provides a critical analysis of the civil law doctrine of understanding the “legal liability” category. Seven main approaches to the interpretation of the category under study are identified and their advantages and disadvantages are highlighted. The author concludes that neither current legislation nor legal doctrine is consistent on the issue under study.

The author emphasises that the doctrine of legal theory distinguishes two types of legal liability: positive (relating to an offence not yet committed) and negative (relating to an offence already committed). The critical analysis of this approach is that such different legal phenomena as proper performance of duties and liability for their violation cannot be covered by the same legal concept – “liability”. As a result, the author makes a reservation that positive responsibility can be spoken of as a type of social liability, but not legal one. Thus, in the context of civil relations, legal liability should be referred to as negative liability. Positive liability is rather a moral phenomenon, which consists in the subject's conscientious (responsible) fulfilment of all legal principles.

Based on the analysis of the doctrinal approaches to understanding the category of “legal liability” and their critical assessment in the legal literature, it has been noted that it is inappropriate to formulate a universal (generally accepted) definition of the concept under study today. This assertion is based on the fact that in many cases, experts seek to combine numerous and diverse features of legal liability into a definition which leaves out specific manifestations of various aspects of its phenomenon.

It has been proved that the current doctrinal approaches to the understanding of legal liability can be reduced to two main areas: its study as a form of state coercion/influence or as a protective legal relationship.

The definition of the state value in terms of functional quintessence

S. G. Pevko — Fri, 29 Mar 2024 00:00:00 +0200

The article examines the issue of the quintessence of the State's axiology in terms of functional definition. For the purpose of the study, the scientific issue is divided into components which are the substantive elements of the scientific problem. First of all, the issue of the essence of the State as a legal phenomenon is revealed, which is the main basis for the emergence of the scientific problem. The relevant views of scholars on the definition of the State are also considered. It has been concluded that the State is a sovereign, political and territorial organisation of society, on the territory of which there are authorities, legal system and taxation system, as well as other additional elements. The author further provides the features inherent in the State which constitute its ontology.

Based on a comprehensive analysis of the essence of the concept of “state”, the article presents some theories of the origin of the state which reflect the purpose of its emergence and existence. The most common theories of the origin of the State include: patriarchal, contractual, violence, organic, and psychological. After analysing some of the theories, the author concludes that the purpose of the State’s emergence and existence is to unite society, resolve disputes and develop it.

The quintessence and diversity of the functions of the State are analysed. As a result, it has been concluded that the functions of the State are a set of activities and processes whose impact is directed at society. Differentiation of functions also has different manifestations. Some scholars distinguish between basic and additional functions, some – internal and external. Internal functions include, for example, regulatory, defence, etc., while external functions include diplomatic and economic (in the context of foreign activities). Based on the analysis of the functions of the State which reflect the directions of its influence on society and which are regulatory in nature (and the very essence of the State is organisational in nature), the article concludes that the axiology of the State in terms of the functional definition is to organise society with the help of its inherent properties and to regulate social relations on the basis of its existing functions with a view to social development.

Appointment of forensic examinations in the course of investigation of criminal offences related to raiding

S. A. Tiulieniev — Fri, 29 Mar 2024 00:00:00 +0200

Establishment and development of the economic security of the state requires taking effective measures to counteract and minimise the negative impact of criminal offences that encroach on public relations in the areas of economic activity, legal activities of business entities, professional activities of public administration entities, etc. Among such criminal offences, much attention is paid to those with signs of raiding, i.e. those related to the unlawful takeover and seizure of property, assets of enterprises, institutions, organisations, corporate rights to them and other resources, encroachment on the rights of owners or authorised persons of business entities of various forms of ownership, etc. An important role in proving and clarifying the circumstances to be proved in these criminal offences is played by expert opinions. Given the insufficient elaboration of the issues related to the appointment of forensic examinations in the course of investigation of criminal offences related to raiding, the purpose of the article is to define the range of forensic examinations which are appointed during the pre-trial investigation of the latter, and to clarify the specifics of their appointment. To achieve this goal, the article uses a range of general scientific methods, as well as some philosophical and special research methods, in particular, analysis, synthesis, systemic and structural method, forecasting method and dialectical method.

Based on the results of the analysis of the investigative and judicial practice of investigating criminal offences related to raiding, it has been found that the typical expert examinations which are appointed during their investigation are forensic technical examination of a document, forensic economic examination, and forensic handwriting examination. It has been generalised that they are appointed in every second criminal proceeding of the type under study.

The author identifies the factors which should be taken into account when deciding on the necessity and expediency of appointing a forensic examination during a pre-trial investigation. The article also identifies the mistakes made by the prosecution when appointing the specified types of qualified specialised investigations. Given the nature of raiders’ actions, the processes taking place in society and in the professional activities of individual participants in social relations, the author outlines the prospects for further scientific research.

Formation and development of special police units: a retrospective analysis

K. O. Chyshko, R. S. Pinchuk — Fri, 29 Mar 2024 00:00:00 +0200

The article analyses historical facts, requirements of laws and by-laws which regulated the activities of special police units in different periods through the prism of modern realities. It has been concluded that these units have gone through a rather long historical path of their formation and development, which we propose to divide into six stages. Stage I (1709–1917) – formation of the land militia, which can be considered the first example of the existence of modern special police units; Stage II (1917–1941) – characterised by the creation of Ukrainian voluntary militia and military formations; Stage III (1941–1978) – a period of stagnation in the history of the formation of special police units due to the events of the First and Second World Wars; Stage IV (1978–1991) – creation of the first special unit in the system of the Ministry of Internal Affairs of the USSR at the official level – a special police detachment; Stage V (1991–2014) – associated with Ukraine’s independence and the creation of Berkut special police unit, Titan special police unit, Sokil rapid response unit; Stage VI (2014 – present) – formation of special police units that actively participate in armed conflicts; this stage was influenced by three key events: 1) the anti-terrorist operation in eastern Ukraine, which was later called the “Joint Forces Operation”, which led to the creation of a number of volunteer special units of the Ministry of Internal Affairs of Ukraine; 2) the creation of the National Police of Ukraine and the formation of special units within its structure (the Rapid Action Corps, the Special Police Patrol Service and the Tactical Response Unit); 3) Russia’s full-scale invasion of Ukraine, which led to the creation of a militarised special police unit, the “Luty” Joint Assault Brigade of the National Police of Ukraine and the “Safari” assault regiment of the National Police.

Regulation of education implementation in Kutai Kartanegara based on education policy

H. Hairan, A. Aini, B. Susilo — Fri, 29 Mar 2024 00:00:00 +0200

This study examines the legal and regulatory framework that governs the implementation of education in Kutai Kartanegara through education policy. The regency of Kutai Kartanegara, in this case the Regional Government, has implemented various policies in the field of education in Kutai Kartanegara. The research method used in this study is an empirical juridical legal methodology, namely a research method that uses legislative provisions related to research and field research on education implementation policy in Kutai Kartanegara Regency. The results of the study show that the implementation of education policy in the Kutai Kartanegara Regency is carried out in accordance with the powers granted by Law No. 23 of 2014 on Regional Governance. The provision of education is carried out as a mandatory concurrent matter and basic service. This is based on Article 12 paragraph (1) letter a, Law Number 23 of 2014 concerning Regional Government. The implementation of education requires a budget that is used for activities in the context of increasing Human Resources, in line with the mandate set out in Article 31, paragraph (4) of the 1945 Constitution, which states that the State shall give priority to the education budget of not less than twenty per cent of the State revenue and expenditure budget, as well as regional revenue and expenditure budgets, to meet the needs of national education. The Education Policy in Kutai Kartanegara, in this case, is based on the Kutai Kartanegara Regency Government’s commitment to increasing human resources through education, especially formal education, which seeks to determine the education budget allocation of 20 % of the Regional Revenue and Expenditure Budget (APBD).

Acceptance of international criminal justice in Bosnia and Herzegovina

G. Šimić — Fri, 29 Mar 2024 00:00:00 +0200

When the XIV Winter Olympic Games took place in Sarajevo in 1984, nobody expected that war would begin only seven years later and kill hundreds of thousands of people living in the former Yugoslavia. That millions of them would be ethnically cleansed and displaced, most of them for good. That hundreds of mass graves would be scattered around, and that war crimes unseen in Europe since the Second World War would be repeated. That severe crimes like systematic rape, torture, and massive destruction of cultural heritage and property would finally culminate with genocide. Consequently, Bosnia and Herzegovina (and the countries of the former Yugoslavia) triggered an immense boost in international criminal law and international criminal justice. That experience, during and after the war that took place from 1992 to 1995, can offer lots of valuable input. Not everything that had been done was good or perfect, but it was of great importance for the further development of international criminal law and international criminal justice in a world that is still searching for appropriate responses to the grave war crimes that occur every day, and for the development of mechanisms and practices that will ensure justice for victims and society and be perceived as such. The atrocities of the Bosnian War served as a wake-up call for the international community, highlighting the urgent need for mechanisms to hold perpetrators of such heinous crimes accountable. The establishment of the International Criminal Tribunal for the former Yugoslavia marked a significant milestone in this regard, pioneering the prosecution of individuals responsible for genocide, war crimes, and crimes against humanity committed during the conflict. However, challenges persist in ensuring access to justice for all victims and addressing the root causes of conflict to prevent future atrocities. The lessons learned in Bosnia and Herzegovina remain crucial in shaping efforts to achieve lasting peace and accountability worldwide.

Countering hostile sabotage and reconnaissance groups by the National Police of Ukraine units in the context of martial law

M. O. Borovyk — Fri, 29 Mar 2024 00:00:00 +0200

The article is devoted to the study of ways to improve the tactical and special readiness of police officers to counteract sabotage and reconnaissance groups in the border areas and in the areas of active hostilities. The author identifies additional powers of the police under the martial law regime, including the following: conducting joint operations against sabotage and reconnaissance forces of the aggressor (enemy) and paramilitary or armed groups which are not regulated by the laws of Ukraine.

To address the objectives of the study, the analysis of the sources of international and national law providing for the use of sabotage and reconnaissance groups by the parties to the conflict is carried out, the essence and hierarchical structure of these groups are revealed, and the objects against which the use of sabotage measures is prohibited are identified. The article also provides a list of objects of the warring parties which, according to international humanitarian law, may be subject to damage.

The organisational features of the basics for defensive combat by the units of the ground forces of certain countries, in particular, the Federal Republic of Germany and the United States of America, are considered. According to the military doctrine of these countries, the purpose of defence is to disrupt the enemy’s offensive actions, inflict maximum losses in manpower and equipment, and gain time to concentrate forces in the chosen direction for the offensive.

The article describes the signs that can be used to identify members of Russian sabotage and reconnaissance groups. These signs are the following: the execution of certain actions, including conducting intelligence activities, destabilising the situation by committing criminal offences (explosions, murders, assaults, robberies) under the guise of domestic crimes, spreading false information and discrediting the authorities during direct communication with the local population.

The tactical methods of combating sabotage and reconnaissance groups in the territory of the controlled border area are highlighted. The experience of counter-sabotage measures by the security and defence forces of Ukraine, one of the elements of which is an ambush, is studied.

A model of sabotage protection and its use in the educational process of higher education institutions of the Ministry of Internal Affairs of Ukraine is proposed, which provides for a comprehensive combination of command and staff exercises with tactical and special exercises in two stages and involvement of cadets in ensuring public safety and order in border settlements.

Transfer pricing reforms in the context of BEPS: challenges remain

S. S. Pyroha — Fri, 29 Mar 2024 00:00:00 +0200

The presence of affiliated entities in different countries and the independence of tax systems make it easy to shift profits from jurisdictions with high corporate tax rates to jurisdictions with low rates. Transfer prices and the arm's length principle are used to prevent profit shifting. The article identifies the peculiarities of transfer pricing reform in the context of the BEPS plan, analyses changes to Ukrainian legislation and opportunities for its improvement.

The article analyses the amendments to the Tax Code of Ukraine aimed at ensuring the implementation of the BEPS plan. The shortcomings of these amendments are outlined and amendments are proposed to improve the legislation. The author also examines the compliance with the BEPS guiding principle, which provides for the taxation of profits where profit-generating economic activities are carried out and where value is created. It is established that the amendments to the Tax Code of Ukraine do not ensure the implementation of this principle.

In addition to the problems of practical implementation of the provisions of legislation, the article identifies conceptual shortcomings of the proposed improvements to the transfer pricing methods, which practically do not ensure the achievement of the set goals. An alternative method of pricing based on the market assessment of value added, which is determined by the sum of the firm’s factor income, wages and profits, is substantiated. Instead of the concept of “transfer price”, the concept of “fair market price” is introduced, which is determined by the sum of value added, depreciation and expenses, representing the added value of all previous stages of the production and/or distribution cycles. The proposed approach excludes the concepts of “affiliated entities”, “transfer prices” and “arm’s length principle”. The existence of a unified system of value added tax in the European Union allows for the unification of the tax system in terms of direct and indirect taxes as a result of the introduction of fair market prices.

Amendments to the legislation have been proposed to allow for automatic solution of the following tasks.

Controversial aspects of the modern national doctrine of property law

S. O. Serbenyuk — Fri, 29 Mar 2024 00:00:00 +0200

The article examines the basic controversial aspects of modern property law in the context of an overview of the Ukrainian legislation and highlights the main ideas of national civil law scholars on certain controversial issues. They consist in identifying the debatable components in the spectrum of research in the field of national property law, assessing further effective areas of scientific research and reviewing the main provisions of civil law on property rights. The author presents the main scientific views and contradictions, as well as the legislator’s views on the concept and features of real rights; reviews the points of view of understanding the grounds for the emergence of real rights and their generalisation and systematisation in the context of current legislation; demonstrates the problems of classification of objects of real rights; considers the problem of classification of real rights; reviews the content of basic legal categories related to the term “protection of real rights” and briefly highlights the approaches to classification of methods and forms of protection of real rights.

It is noted that in general, the issues of property law of Ukraine are well studied, and only some issues need to be investigated in the context of detailing already known studies or solving specific practical legal problems, in particular, legal conflicts and selection of effective methods and forms of property rights protection in a particular case under a particular set of factors or parameters. The main core of the discussions on property law is whether the notion of “thing” belongs to a particular concept and whether a wide range of property relations exists in modern social, economic and legal relations. Therefore, first of all, there are discussions about the need to enshrine in the legislation a clear definition of the content of the category “real right”, to create a detailed classification of both real rights and their objects, as well as to select an effective remedy for violated rights in accordance with the existing parameters (components) of the legal situation, etc.

Specific features of obtaining and using electronic evidence in criminal proceedings

I. O. Teslenko — Fri, 29 Mar 2024 00:00:00 +0200

The relevance and importance of this research is due to the fact that scientific and technological progress and rapid development of information technology in all spheres of public life have significantly influenced the emergence of new types of criminal offences. Criminals are using computer systems and other portable devices to commit unlawful acts with increasing frequency. Today, many criminal offences are being committed with the help of information technology around the world, ranging from simple online fraud to the threat of a territorial act. Therefore, one of the ways to record (document) such illegal activities effectively is to obtain (collect) electronic evidence by law enforcement agencies in criminal proceedings. In this regard, the key role is played by evidence, which helps to form an evidence base that makes it possible to notify a person of suspicion, send an indictment to the court and make a final court decision on the guilt (innocence) of a person in committing a particular criminal offence. Achievement of this objective undoubtedly necessitates a specific legal procedure for seizure of electronic evidence in criminal proceedings, which is not yet clearly defined in terms of its collection, leading to numerous cases of courts declaring such evidence inadmissible.

In the course of the scientific research, the author of the article analyses the views of scholars on the interpretation of the concept of electronic evidence; provides the legislative interpretation of this term (unlike the CPC of Ukraine, other procedural codes enshrine the concept of electronic evidence); studies the case law on the issue of electronic evidence being admissible/inadmissible; and identifies the main features of electronic evidence, etc.

Given the fact that the Russian Federation commits war crimes on the territory of Ukraine on a daily basis, the author states the need to collect and record evidence of such crimes from open sources, which will further ensure the prosecution of the perpetrators.

In the course of studying the specific features of obtaining and using electronic evidence in criminal proceedings, the author applied general scientific and special scientific methods, in particular, dialectical, formal and logical, and comparative legal methods. The interrelated use of these methods allowed for a comprehensive study, where each of these methods was used at a certain stage of the examination of the specific features of obtaining and using electronic evidence in criminal proceedings.

The mechanism of the social state and the place of the pension system in it: theoretical and legal aspects

S. S. Polesov — Fri, 29 Mar 2024 00:00:00 +0200

The article is devoted to the theoretical and legal study of the role and place of the pension system in the mechanism of the social state on the example of the modern Ukrainian legal experience. Based on the analysis of legislation, doctrinal positions and practice of the Constitutional Court of Ukraine, the author has formulated the own vision of the substantive and ontological core of pension provision. It is demonstrated that pension provision as a set of legal relations and a real legal phenomenon in the substantive and ontological dimension cannot be identified either with the process of providing an individual with a set of certain social and material services (procedural approach), or with a set of measures taken by the State to meet the needs of an individual for adequate material security upon reaching retirement age or due to adverse social circumstances which exclude their opportunities for active participation in economic and social life. According to the human-centred paradigm, the substantive and ontological essence of pension provision is not only the right (legal possibility) to demand from the state a certain level of pension payments in accordance with certain objective criteria, but also the real possibility to receive such payments in the amount that allows a person to maintain a decent existence, to ensure their key needs in life and social environment, avoiding poverty and social isolation.

The importance of the State’s guarantee of the right to pension as a component of the constitutional right to social protection is substantiated. It has been revealed that the social state implements such a social policy which guarantees not only pension payments, but also their amount, frequency of receipt and indexation in accordance with the established procedure, which ensure that every person entitled to a pension has an adequate standard of living, the stability of the established standards of pension provision, the guarantee of this provision, the predictability of the legislative policy of pension provision (in accordance with the concept of legitimate expectations), and the appropriate law enforcement policy of pension provision. It has been proved that in the context of the social state concept, the problem of legislative fixation of the optimal model of pension provision (which would take into account the issues of determining the amount of pension provision, their ranking in various, including special, laws, methods and pace of pension indexation, etc.), taking into account the economic situation of the State and the compliance of such provision with the task of realisation of basic human needs for decent living conditions, requires careful consideration (in accordance with the concept of “space for consideration”). The article emphasises that compliance with the constitutional principles of the social state requires legislative regulation of pension provision on the basis of equity and proportionality, taking into account the State’s obligation to ensure decent living conditions for every citizen of Ukraine.