scholarly journals PROBLEMIC ASPECTS OF THE PARTICIPATION OF THE FORENSIC EXPERT IN THE ECONOMIC COURT PROCEEDINGS

2021 ◽  
pp. 10-20
Author(s):  
T.A. Revyakina ◽  
Keyword(s):  
Structural Method ◽  
State Register ◽  
Legal Method ◽  
Variable Nature ◽  
Economic Process ◽  
The Status ◽  
Procedural Code ◽  
Special Knowledge ◽  
Forensic Expert ◽  
Court Proceedings

The purpose of the article is to study the problematic aspects of the participation of a forensic expert in the economic proceedings of Ukraine. The reliability of the results and conclusions obtained is provided by a combination of research methods at the general scientific and special levels. In particular, from the standpoint of the systemic-structural method, the authors clarified the specifics of the change in the status of an expert as one of the other participants in the trial after the reform of the economic procedural legislation. Using the formal-logical method, the author identifies the forms of expert participation in the business process and the mechanism for their implementation. Using the comparative legal method on examples of judicial practice, the content and correlation of the legal and procedural status of an expert in economic proceedings are revealed. It is argued that the connection, interdependence and mutual transitions of the subject link of economic proceedings of the form: expert—judicial examiner—expert-professional correspond to the categories general—special—single. The provision on the variable and periodic nature of acquiring the economic procedural status of an expert has been substantiated, the nature of the grounds for its acquisition has been classified into types of imperative, imperative blanket, dispositive, dispositive-blanket and forms of expert participation in the economic process according to the criteria of territoriality, the content of expert and procedural activities. It has been established that, in accordance with the Economic Procedural Code of Ukraine, an expert can be appointed by the court or attracted by a participant in the case, that is, act as a subject who can be entrusted with the direct examination, such persons should be considered as: a state forensic expert; private forensic expert; professional expert. It is proposed to consider it a general requirement for them to possess the special knowledge necessary to provide a reasoned and objective written opinion on the questions posed. A special requirement for forensic experts is their inclusion in the state Register of certified forensic experts. The provision on the variable nature of the acquisition of the procedural status of an expert on the initiative of other persons, which this person receives periodically and does not possess permanently—at the time of assignment (appointment or involvement) to him, to conduct and formalize the results of expert proceedings at the stages of pretrial investigation and judicial consideration of a specific economic case, has been substantiated. The article proves the provision on the dynamism of the requirements for the number of experts and the quality (class, experience, industry) of their special knowledge, which mainly depend on the type (primary, additional, repeated, commission, complex) and complexity of the examination of the case. It has been established that the mechanism for implementing the forms of participation of an expert in the economic process is of a binding nature, in which the expert acts as an obliged person regarding arrival at the court upon his summons on the basis of his own initiative or at the request of the participants in the case.

scholarly journals REVIEW OF THE CONCLUSION OF A COURT EXPERT AND THE WRITTEN EXPLANATION OF THE SPECIALIST: SIMILARITY AND DIFFERENCE

2020 ◽  
pp. 52-63
Author(s):  
M. Shcherbakovskyi
Keyword(s):  
Expert Opinion ◽  
Validity And Reliability ◽  
Scientific Validity ◽  
Procedural Law ◽  
The Status ◽  
Expert’S Opinion ◽  
Special Knowledge ◽  
Court Proceedings ◽  
Similarity And Difference ◽  
Court Expert

Reviewing the conclusions of forensic experts is regulated by the procedure developed by the Ministry of Justice of Ukraine. The immediate purpose of the review is to establish the conformity of the study to the approved expert methods, to draw up an expert opinion on the procedural and departmental requirements. The ultimate goal of reviewing is to determine whether the conclusion form complies with the requirements of the law, the scientific validity of the expert opinion as a source of evidence, and the competence of a forensic expert. External reviewing is carried out in accordance with the plans of the Ministry of Justice for experts preparing to receive or confirm their qualifications. Internal peer review is carried out in expert institutions as ongoing quality control of examinations. Gross violations in expert studies have been identified, and organizational and procedural consequences are being drawn, which include sending a court notification about the inaccuracy of the examination. The use of reviews of expert conclusions in court proceedings as a source of evidence is unacceptable, since this document is not provided for by the procedural law, there are no guarantees of the independence and disinterest of the reviewer, reviews do not contain data on the actual circumstances of the dispute or offense. The purpose of providing reviews that are not compiled by the staff of expert institutions is to discredit the authority and professional reputation of forensic experts, leveling their conclusions. At the same time, there is an objective desire of the court to involve knowledgeable persons in the assessment of expert research. This is due to the fact that the parties and the court do not have special knowledge, which make it possible to assess the validity and reliability of the expert’s opinion. The procedural form for establishing these circumstances is to use the help of knowledgeable persons who may be involved as specialists to provide clarifications on issues within their competence. The specialist research the scientific and methodological side of expert examination. A written explanation of a specialist is a procedural document that is prescribed by law, but it does not have the status of a source of evidence. If the specialist provides an explanation that contains a negative response to the expert’s opinion, the judge must invite the expert and expert for interrogation to provide explanations. After hearing a specialist and expert, the court may come to the conclusion that the forensic examination was carried out correctly or, conversely, there are doubts about the reliability of the study and the grounds for appointing a new or repeated examination.

scholarly journals Compensation to the Bona Fide Homeowner for the Loss of Residential Premises2

2020 ◽  
Vol 15 (7) ◽  
pp. 49-59
Author(s):  
D. V. Lorents
Keyword(s):  
Civil Rights ◽  
Point Of View ◽  
Constitutional Court ◽  
Real Property ◽  
State Register ◽  
The Status ◽  
Legal Model ◽  
Bona Fide ◽  
Court Proceedings ◽  
Legal Mechanism

New rules for compensation to the bona fide houseowner (physical entity) for the loss of residential premises were adopted were adopted on 1 January 2020. Such compensation is not tortious in nature. It is comparable to the real damage or cadastral value of a vindicated apartment. The amount of compensation is now not limited to 1 million rubles, and the period of impossibility of enforcement proceedings against perpetrators has been reduced to 6 months. At the same time, the date of entry into legal force of the court decision concerning the residential premises vindication and the date of the claim of a bona fide citizen for compensation in relation to 1 January 2020 affect the conditions of compensation, the amount of payment, the status of the respondent and the amount of budgetary funds. Taking into account the standing of the Constitutional Court of the Russian Federation in A. N. Dubovets case, it would be fair to assign risks of imperfection of the Unified State Register of Immovable Property (EGRN) to a public legal establishment and provide individuals with absolute protection from public vindication or, at least, envisage the possibility of compensation immediately after vindication without additional court proceedings. However, from the point of view of the economic efficiency of law, the law-maker expressed a preference for a legal model of protection of the original owner in order to discourage commission of offenses in the field of civil turnover of real property. The development of a fair system of compensatory measures for property vindication becomes a general trend in the legal mechanism of protection of civil rights in Russia.

scholarly journals ABOUT FORENSIC EXPERT PARTICIPATION IN CASES OF ADMINISTRATIVE OFFENSES

2018 ◽  
Vol 18 ◽  
pp. 194-202
Author(s):  
O. P. Uhrovetskyi ◽  
O. O. Sviderskyi
Keyword(s):  
Legal Status ◽  
Actual Data ◽  
Forensic Research ◽  
Forensic Examination ◽  
Special Knowledge ◽  
Forensic Expert ◽  
Research Decision ◽  
Structure Complexity ◽  
Administrative Proceedings ◽  
Procedural Rights

The authors allocate in administrative proceedings in cases of administrative offenses among other participants to a forensic expert who takes a special place in this process and give a description of legal status of forensic expert in cases on administrative offenses taking into account the peculiarities of expert involving stage in administrative proceedings. The authors emphasize that at various stages of administrative proceedings a forensic expert performs one function: performing examination. At the central stage of administrative proceedings, namely consideration of the case on an administrative offense and adoption of the resolution therein by authorized authority to consider an administrative offense. If there is a need to use of special knowledge, forensic examination is assigned and opportunity is provided to expert to exercise procedural rights and obligations and submit examination conclusion as a result of expert research. Decision on forensic examination assignment in cases of administrative offenses in the jurisdiction is usually performed in resolutions of the authorized authority (official) that is in charge of proceedings administrative offense. Expert conclusion is an independent means of proof in administrative proceedings. Structure complexity of expert conclusion as a procedural document lies in the fact that it derives from the structure of a special forensic research, since it reflects its features. Expert conclusion is subject to investigation and verification by the court and actual data contained therein are judged by general rules, since they are actual data about certain circumstances of objective reality. It is concluded that participation of expert in proceedings on administrative offenses at the present stage is as fully possible realized at the second central stage of proceedings in consideration of case on administrative offense.

scholarly journals Systemic approach to the choice of optical methods of forensic examination of micro-objects

2021 ◽  
Vol 39 (69) ◽  
pp. 564-580
Author(s):  
Liudmyla Havryliuk ◽  
Valentyna Drozd ◽  
Olena Nenia ◽  
Anatolii Kyslyi ◽  
Andrii Niebytov
Keyword(s):  
Systematic Approach ◽  
Systemic Approach ◽  
Optical Methods ◽  
Structural Method ◽  
Systematic Analysis ◽  
Holistic View ◽  
Legal Method ◽  
Logical Method ◽  
Examination Methods ◽  
Definition Of

The aim of the article is to analyze theoretical and methodological provisions related to the definition of directions and principles of implementation of a systematic approach to the use of optical research methods, in particular micro-objects. Subject of research is substantiation and formulation of the classification characteristics of such systematic approach, considering the requirements of forensic techniques. Methodology: The study applies such methods of scientific knowledge as dialectical method, system and structural method, logic and legal method, methods of systematic analysis, logical method. Research results: The article studies the problematic issues of a systematic approach to the choice of scientific and technical methods and means for micro-object examination. Practical consequences: The authors argue that optical methods of the micro-object examination require classifying and systematizing to provide a holistic view of their potentials, as well as the nature of the information that can be obtained about the object being examined. Value / originality: The analysis of clarified classification characteristics and requirements for examination methods in forensic science enables to propose the algorithm of the systemic approach to the creation of the open system classification of methods of micro-object examination and to make justified conclusions.

scholarly journals MEANS OF COUNTERACTING THE PROVISION OF AN INTENTIONALLY MISLEADING CONCLUSION BY AN EXPERT

2016 ◽  
Vol 15 ◽  
pp. 180-188
Author(s):  
M. V. Shepitko
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Legal Proceedings ◽  
Forensic Examination ◽  
Special Knowledge ◽  
Psychological Influence ◽  
Forensic Expert ◽  
The Law ◽  
Misleading Conclusion

The article deals with the problems of counteracting the provision of an intentionally misleading conclusion by an expert. It analyzes the rights, obligations and liabilities of an expert. The research focuses on the fact that a forensic expert differs from other participants to criminal legal proceedings - he/she has special knowledge. According to his/her legal status an expert is engaged in this activity on a permanent basis using the powers given by the Law of Ukraine «On forensic examination» and procedural laws. The article pays particular attention to the forms of obligations undertaken by an expert in the course of a pretrial investigation and trial - warning of criminal liability, the oath by an expert. With this regard the article specifies common and distinctive traits of the abovementioned oaths showing different purposes that the lawmaker had in mind while drafting them. It is important to point out to the conclusion that the mechanism of counteracting the provision of an intentionally misleading conclusion by an expert is a means of psychological influence. This episode may indicate a possibility of excessive intimidation of this participant of the criminal legal proceedings.

scholarly journals Protection of the subsoil of the continental shelf of Ukraine by international and national instrumentalities

2021 ◽  
pp. 186-190
Author(s):  
V. V. Chumak ◽  
O. O. Khan ◽  
I. V. Bryhadyr ◽  
K. V. Kysylova
Keyword(s):  
Continental Shelf ◽  
Legal Regulation ◽  
Criminal Code ◽  
The State ◽  
Structural Method ◽  
Legal Norms ◽  
Foreign Companies ◽  
Legal Method ◽  
Legislative Changes ◽  
State Protection

Purpose. Identification of international and national mechanisms for protection of the subsoil of the continental shelf of Ukraine and provision of scientifically sound recommendations for improving the legal regulation of their application. Methodology. During the study, the dialectical method was used to learn the essence of such a phenomenon as the protection of the subsoil of the continental shelf; the system-structural method when analyzing objective and subjective features of the crime under Part 2 of Art. 244 of the Criminal Code of Ukraine; the comparative-and-legal method in the study on the sanction of Part 2 of Art. 244 of the Criminal Code of Ukraine; the logical and dogmatic method when developing recommendations for improving legal norms. Findings. As a result of the study, mechanisms of protection of the continental shelf of Ukraine were determined. The necessity of improvement of the legislative base regulating the order of their realization is proved. Originality. The international legal and national mechanisms of state protection of the continental shelf of Ukraine are determined. In order to improve the state protection of the continental shelf, legislative changes to Part 1 of Art. 26 of the Subsoil Code of Ukraine, Part 2 of Art. 244 of the Criminal Code of Ukraine and Part 2 of Art. 216 of the Criminal Procedure Code of Ukraine are suggested. Practical value. Proposals to improve the current legislation of Ukraine are presented aimed at improving the efficiency of the State Service of Geology and Subsoil of Ukraine, the National Police, the Security Service of Ukraine and the judiciary to protect the subsoil of the continental shelf of Ukraine from illegal use by foreign companies.

scholarly journals Modern Directions of Forensic Experts Primary Training

2020 ◽  
pp. 1662-1670
Author(s):  
Oksana G. D'iakonova
Keyword(s):  
Initial Training ◽  
Legal Proceedings ◽  
Advantages And Disadvantages ◽  
Eurasian Economic Union ◽  
Foreign Countries ◽  
Effective Form ◽  
Special Knowledge ◽  
Forensic Expert ◽  
Level Of Training ◽  
And Training

No type of legal proceedings is complete without the involvement of experts for the production of expert research or specialists for consultation. In this regard, the question of determining the competence of these subjects by persons conducting the process who do not have special knowledge in the field in which the knowledgeable person specializes is very acute. The author determines the competence of the forensic expert and enumerates other requirements to the expert as a participant in the proceedings. The formation of competence is primarily influenced by the level of training, education of an expert or specialist. The main attention focuses on the disclosure of the main ways of initial training and retraining of forensic experts at the present stage: the traditional way of experts training; specialization in the specialty “Forensic examination”; master’s degree in programs of expert specialties. The existing types of training and retraining of forensic experts in Russia and some foreign countries, including the member States of the Eurasian economic Union (EEU), are analyzed. The traditional way of training of forensic experts and training under the program of specialization are revealed proceeding from historical conditionality and necessity of training of specialists for implementation of forensic activity. The positive and negative features of the training areas are highlighted, taking into account their impact on the formation of the competence of the forensic expert. The author emphasizes the need to develop existing forms of initial training of forensic experts, taking into account the advantages and disadvantages of each of them. The study concludes that it is necessary to apply the subjective criterion in order to determine the effective form of training of forensic experts

scholarly journals Renascence of the administrative jurisdiction in Hungary

2019 ◽  
Vol 3 (1) ◽  
pp. 92-102
Author(s):  
Edit Horváth
Keyword(s):  
Public Administration ◽  
Scientific Community ◽  
Constitutional Court ◽  
Legal Analysis ◽  
National Assembly ◽  
The Status ◽  
Procedural Code ◽  
Legal Security ◽  
Administrative Jurisdiction ◽  
Law Making

The administrative jurisdiction is one of the guarantees of the civil legal security. However, a state has to „grow up” to this as to every legal guaranties. Administrative jurisdiction, and within it the creation of an independent administrative procedural order has been cause for much excitement in the law-making community basically from the early 1990 s, when control over administrative rulings became genuinely possible again. It was thus unsurprising that the codification of the Act on the procedural code of public administration was followed with interest, and the professional and scientific community gave regular updates on the status of the codification. Therefore, the fact that the president did not sign the Act passed by the National Assembly, but sent it to the Constitutional Court for evaluation instead caused a major stir. Based on the decision 1/2017. (I. 17.) of the Constitutional Court, the National Assembly eventually modified a number of provisions in the Act on the administrative procedural code and passed the Act again, which was then promulgated on March 1, 2017 as Act I/2017 on the administrative procedural code, and became effective, as per initial plans, on January 1, 2018. The article is not an ode to the Hungarian administrative jurisdiction or to the new independent administrative procedural code, but a historical and mainly legal analysis.

scholarly journals Nepotism, favoritism and cronyism as a source of conflict of interest: corruption or not?

2020 ◽  
Vol 9 (29) ◽  
pp. 163-169
Author(s):  
Anna Tytko ◽  
Mykhailo Smokovych ◽  
Yuliia Dorokhina ◽  
Olena Chernezhenko ◽  
Serhii Stremenovskyi
Keyword(s):  
Conflict Of Interest ◽  
Conflicts Of Interest ◽  
Business Environment ◽  
Structural Method ◽  
Systematic Analysis ◽  
Family Ties ◽  
Logical Connection ◽  
Legal Method ◽  
Logical Method ◽  
Pros And Cons

The purpose of the article is to analyze the concepts of “nepotism”, “favoritism” and “cronyism” as the forms of conflict of interest, as well as to identify the relationship between the dissemination of these phenomena in the context of conflict of interest and the determinants of the latter. Methodology. Taking into account the purpose of the article, the links between the corruption and nepotism, cronyism, favoritism as forms of conflict of interest have been defined based on the method of a systematic analysis. The logical method, as well as comparative and legal method helped to analyze the concepts of “nepotism”, “сronуіsm”, “favoritism” and “clientelism”. The method of induction and deduction enabled to distinguish the key features of favoritism, cronyism, and nepotism. The method of hermeneutics allowed to interpret the above concepts through the prism of the features of corruption. The system and structural method made it possible to make a logical connection between the conflict of interest and the manifestation of favoritism, nepotism and cronyism. The legal modeling method was helpful in drawing conclusions of the research. The results of the study. The pros and cons of using family ties and friendly relations, depending on the scope of nepotism, favoritism and cronyism have been identified as a result of a study. The connection between these phenomena and the spread of conflicts of interest in the public service has been examined. Practical implications. An attempt to identify favoritism, nepotism and cronyism as the form of conflict of interest has been made, as well as some recommendations to amend the relevant legal acts have been provided. Value / originality. For the first time, the authors examined the possibility of having positive results from using nepotism, cronyism and favoritism in forming business environment.

Binding non-signatories to arbitration agreements—who are persons ‘claiming through or under’ a party?

2019 ◽  
Vol 35 (3) ◽  
pp. 375-386
Author(s):  
Vicky Priskich
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
International Arbitration ◽  
Appellate Courts ◽  
High Court ◽  
Appeal Court ◽  
The Status ◽  
Court Proceedings ◽  
The Uk ◽  
High Court Of Australia

Abstract The International Arbitration Acts of the UK, Australia, Singapore, and Hong Kong recognize that third persons who are non-signatories to an arbitration agreement but who are ‘claiming through or under’ a party to the arbitration agreement have the status of a party.1 In the UK and Singapore that status means not only that court proceedings involving such non-signatories may be stayed in favour of arbitration but it also binds them to an award. In Hong Kong that status binds non-signatories to an award. In Australia, that status affects whether court proceedings involving non-signatories are stayed in favour of arbitration. A recent judgment by a majority of Australia’s highest appeal court, the High Court of Australia, in Rinehart v Hancock Prospecting Pty Ltd2 has taken a different approach to that prevailing in England as to the range of persons who are capable of ‘claiming through or under’ a party to the arbitration agreement, thereby significantly expanding the range of disputes involving non-signatories that must be referred to arbitration.3 The issue has not arisen for determination before appellate courts in Singapore or Hong Kong. Rinehart therefore represents an important development in common law jurisdictions, compelling arbitration between a signatory and non-signatory to an arbitration agreement.

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