scholarly journals The concept of criminal procedural legal relations: definition of concept

2019 ◽  
pp. 185-196
Author(s):  
V. Vinnychenko
Keyword(s):  
Critical Analysis ◽  
Public Law ◽  
Axiomatic Method ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
European Court ◽  
The Face ◽  
The Subject ◽  
Theory Of Law ◽  
Definition Of

The concept of criminal procedural legal relations in the context of modern globalism of criminal proceedings is considered in the article. Scientific approaches to definition of concept of legal relations, subject of criminal procedural law, method of criminal procedural law are investigated. The purpose of the article is to define the concept of criminal procedural legal relations under modern criminal proceedings. The author is investigated: Approaches to defining the concept of legal relations and Criminal procedural legal relations; Subject of criminal procedural law and method of criminal procedural law. During the research, a critical analysis of the mentioned scientific material is made and its own scientific approach to the definition of the criminal procedural legal relations is developed. During the copyright it is investigated a number of methods of scientific cognition, in particular, how: the method of scientific formalization; Axiomatic method; Hypoolytic-Deduktive method. The concept of the theory of Law on definition of notion and signs of legal relations was investigated, the analysis of these concepts was made and the concept of criminal procedural legal relations was chosen. The concept of criminal procedural legal relations provided by Ukrainian scientists and the critically-critical analysis of these concepts is investigated. It is given that existing approaches are not correct for modern legal reality and cannot be flexible in the face of progressive globalized development of the modern criminal procedural law. Scientific approaches to the subject of criminal procedural law as signs of criminal procedural legal relations are investigated. Scientific approaches to definition of criminal procedural law method as signs of criminal procedural legal relations are investigated. The analysis of the criminal procedural legislation and precedents of the European Court of Human Rights as a source of international public law is carried out. Generalized and scientifically deduction method output the concept of criminal procedural legal relations, which may be applied under the conditions of modern globalized criminal proceedings. The study has an interdisciplinary character. The author conducts research using the scientific base of Globalistics, Furturilogy, international relations.

CONCEPT AND CONTENT OF A RECONCILIATION AGREEMENT IN THE CRIMINAL PROCEEDINGS OF UKRAINE

2017 ◽  
Author(s):  
Mariia Sirotkina ◽  
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Main Attention ◽  
Criminal Offense ◽  
Procedural Law ◽  
Legal Nature ◽  
Criminal Procedure Law ◽  
The Subject ◽  
Definition Of

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".

scholarly journals CONTRADICTIONS BETWEEN SCIENTIFIC TERMINOLOGY AND THE TERMINOLOGY OF THE LEGISLATION ON THE DEFINITION OF SUBJECTS AND PARTICIPANTS IN THE ADMINISTRATIVE PROCESS

2019 ◽  
pp. 70-73
Author(s):  
I. L. Zheltobriukh
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
Public Law ◽  
Administrative Process ◽  
Scientific Terminology ◽  
Procedural Law ◽  
The Subject ◽  
State Of Affairs ◽  
Definition Of ◽  
Enforcement Activity

This paper explores the existing contradictions between the scientific terminology and the terminology of legislation regarding the definition of subjects and participants in the administrative process. It is noted that acquaintance with the scientific and educational- methodological literature shows that even today there is no clear justification of the relation between the terms “subject of administrative process” and “participant of administrative process”. The main reason for this state of affairs is due to differences in the laws of development of national administrative procedural legislation and the laws of development of science of administrative procedural law. It is concluded that there is a long-standing need to offer the scientific community and practitioners such a concept of relation between the terms “subject of administrative process” and “participant in administrative process”, which would reconcile the contradictions of the otological and epistemological terminology used in the CAS. The necessity to use in the science of administrative law and process justifies the concept according to which the administrative process should be considered as law enforcement activity of administrative courts related to the consideration and resolution of public law disputes. In such a case, the administrative court will always be the subject of the administrative court, whereas the parties, third parties, representatives, assistant judge, court secretary, court administrator, witness, expert, law expert, translator, specialist are only participants in the administrative process that is, persons involved in the enforcement of administrative law.

scholarly journals TYPES OF DISPOSITION OF CRIMINAL JUDICIARY OF UKRAINE

2020 ◽  
Vol 1 (4(106)) ◽  
pp. 215-221
Author(s):  
М. М. Почтовий
Keyword(s):  
Scientific Article ◽  
Criminal Proceedings ◽  
General Group ◽  
Procedural Law ◽  
Legal Provisions ◽  
The Subject ◽  
Definition Of ◽  
The Right ◽  
Different Order

The scientific article considers the issue of modern understanding of the essence of the principle of dispositiveness in the criminal proceedings of Ukraine, as well as its classification in scientific sources. At the beginning, the author emphasizes the importance of the existence of the principle of dispositiveness in criminal proceedings and its impact on the implementation of the rights and freedoms of participants in criminal proceedings. On the basis of the defined criteria the classification of dispositiveness in criminal proceedings is carried out: 1) on the maintenance - social, material and formal (procedural); 2) according to the methods of connection of elements in the structure of dispositiveness - horizontal (equal-order) and vertical (different-order); 3) by enshrining dispositive norms in the substantive or procedural law - substantive and procedural; 4) on the generality of powers used by the subjects of dispositive rights - general, group and exclusive powers (the right to the last word of the defendant); 5) on the subordination of rights and freedoms (legal provisions) of the subjects of dispositiveness - the main provisions, provisions that ensure the implementation of the basic; 6) depending on the scope of powers granted to participants in criminal proceedings, for a certain period of time - static and dynamic; 7) depending on how many participants in the criminal proceedings are endowed with dispositiveness in a particular criminal proceeding - unilateral and bilateral; 8) depending on the mechanism of realization of dispositive rights - constitutive and situational; 9) for the subject of dispositive rights - suspect, defense counsel, accused, legal representatives, victim, civil plaintiff, civil defendant, witnesses, etc. The author of the study formulates the definition of dispositiveness in the criminal proceedings of Ukraine - it is a conscious need for active and purposeful activities of entities endowed with dispositive rights, the implementation of which affects the emergence, change or termination of criminal procedural relations and aims to defend their own or representative interests.

scholarly journals TO THE QUESTION OF ACCESSORIES OF JUDICIAL EXAMINATION TO INVESTIGATIVE ACTIONS

2019 ◽  
pp. 58-68
Author(s):  
I. Pyrih
Keyword(s):  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Forensic Examination ◽  
Preparatory Stage ◽  
The Subject ◽  
Characteristic Features ◽  
Definition Of ◽  
Selection Of

The article deals with problematic issues related to the norms of criminal procedure legislation, considering the involvement of an expert as an investigative action. Among criminal scientists and proceduralists there is no consensus on the procedural definition of forensic examination. Most of them include forensics to investigative actions. By the definition of a forensic examination, it is clear that an integral feature of a procedural action is to conduct it exclusively by officials of state bodies authorized by law to conduct criminal proceedings. These include: employees of the operational units, an investigator, a prosecutor, a judge. The subject of the examination is an expert – a person not authorized by law to conduct investigative actions. That is why, in our opinion, it is impossible to refer an examination to investigative actions. Proponents of referring a forensic examination to investigative actions most often mean it as «the appointment and conduct of a forensic examination». It is argued that actions regarding the appointment and conduct of the examination are different in nature and subjects of conduct. If we consider the stage of appointment of the examination, and for the current Criminal Procedure Code of Ukraine – the involvement of an expert, then its subject is the investigator. The subject of the examination is an expert. Considering the characteristic features of the investigative action, it can be concluded that the stage of appointment of the examination or the involvement of an expert, which scientists consider as preparatory to the examination, has all the signs inherent in an independent investigative action. It is governed by the rules of procedural law, carried out in the framework of criminal proceedings, authorized by the person. When an expert is involved, the investigator conducts certain actions, the result of which is reflected in the ruling of the investigating judge. The purpose of the examination is to obtain, research and verify evidence. Considering the involvement of an expert as a separate investigative action, we define its content, divided into generally accepted stages: preparatory, working and final. To the preparatory stage, we include such actions: the decision to conduct an examination; selection of an expert institution or a private expert; determination of the type of examination and subject of study; determining the order of appointment of examinations in relation to the same objects; timing of appointment examination. The following should be attributed to the working stage: selection of objects for examination; receipt of the decision of the investigating judge for the examination. The final stage consists of the following stages: determining the circle of persons who may be present during the examination; referrals and necessary materials to the expert institution. Key words: investigative (search) action, forensic examination, appointment of expertise, involvement of an expert.

scholarly journals Reasonable Time in Criminal Proceedings of Ukraine in the Context of the European Court of Human Rights Case Law

2021 ◽  
Vol 11 (2) ◽  
pp. 701-715
Author(s):  
Bohdan Derdiuk ◽  
Serhii Kovalchuk ◽  
Snizhana Koropetska ◽  
Vasyl Savchenko ◽  
Oleksandra Smushak
Keyword(s):  
Human Rights ◽  
Practical Implication ◽  
Case Law ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Time Period ◽  
The Subject ◽  
Definition Of

The purpose of the paper is an analysis of the notion of reasonable time, period which is taken into account in their calculation and criteria for determining a reasonable time for criminal proceedings in Ukrainian criminal procedural legislation in the context of the European Court of Human Rights case law. The subject of the study is an analysis of Ukrainian criminal procedural legislation from the point of view of its conformity to the ECHR’s case law in the designation of a reasonable time, period which is taken into account in calculation of a reasonable time and criteria for its determining for criminal proceedings. The research methodology includes comparative legal, systematic, functional, formal legal and others methods. The results of the study. The period which is taken into account in calculation of a reasonable time and the criteria for its determining is studied comprehensively as a basis for definition of the notion of reasonable time. Practical implication. The range of suggestions for improvements of Ukrainian criminal procedural legislation relating content of reasonable time and mechanism used to their calculate is defined. Value / originality. Based on the results of an analysis the authors’ concept of reasonable time is proposed.

scholarly journals The concept and essence of the principle of inadmissibility of abuse of procedural rights in administrative judiciary

2021 ◽  
Vol 66 ◽  
pp. 135-141
Author(s):  
Yan Bernazyuk
Keyword(s):  
Case Law ◽  
Fair Use ◽  
Public Interests ◽  
Procedural Law ◽  
European Court ◽  
The Supreme Court ◽  
Legal Legitimacy ◽  
Definition Of ◽  
Administrative Proceedings ◽  
Procedural Rights

The article is devoted to the definition of the peculiarities of observance in administrative proceedings of the principle of inadmissibility of abuse of procedural rights. The concept and essence of abuse of procedural rights in administrative proceedings are clarified, the meaning of the principle of inadmissibility of abuse of procedural rights is established. The legal basis of the principle of inadmissibility of abuse of procedural rights in administrative proceedings is investigated. Based on the analysis of the case law of the Supreme Court, the European Court of Human Rights established the content of the principle of inadmissibility of abuse of procedural rights. The opinion that the abuse of procedural rights is opposed to the conscientious abuse of procedural rights by the parties is substantiated. The author argues that the abuse of procedural rights may be recognized as actions or omissions of a party to the case, which are characterized by a sign of apparent legal legitimacy, but are used for the opposite or inconsistent with the pursuit of the relevant procedural right or obligation. Based on the analysis of the Constitution of Ukraine, international acts, laws of Ukraine and case law, it is proved that the main purpose of the principle of inadmissibility of abuse of procedural rights is to guarantee the fair use of their procedural rights. The author discloses the content of the fair use of the parties' procedural rights, which includes the use of the relevant rights for the purpose for which these rights are granted, and in the manner prescribed by procedural law, as well as conscientious performance of duties specified by law or court. The study made it possible to state that the introduction of the principle of inadmissibility of abuse of procedural rights is important for improving the effectiveness of administrative courts to protect the rights and interests of individuals, public interests and the interests of the state.

THE NOTION OF THE SYSTEM OF CIVIL PROCEDURAL LAW

2021 ◽  
Vol 11 (4) ◽  
pp. 13-26
Author(s):  
V.M. SHERSTYUK
Keyword(s):  
Internal Structure ◽  
Legal Regulation ◽  
Point Of View ◽  
Entire System ◽  
Procedural Law ◽  
The Subject ◽  
Definition Of ◽  
Constituent Elements

The study puts forward the thesis that the basis for the allocation of structural subdivisions of civil procedural law is mainly the subject of legal regulation. The complex internal structure of the system of this branch of law is due primarily to the diversity of civil procedural relations that constitute the subject of regulation of this branch of law. The work reveals the essential features of the concept of “system of civil procedural law”, defines the grounds for its structural subdivisions and their composition, gives the definition of this category. In particular, the author has formulated the idea that the system of civil procedural law is an internally coordinated set of civil procedural rules, institutions and other relatively independent structural subdivisions of this branch of law, naturally interconnected into a single whole due to the unity of civil procedural relations. Also in this study the point of view is expressed that each level of the system, as well as the entire system of civil procedural law as a whole, is characterized not only by typical features of its constituent elements, but also by their typical, regular relationships that constitute its structure.

scholarly journals Diskussion/Discussion. Zur Abgrenzung van Recht und Moral

1981 ◽  
Vol 3 (2) ◽  
Author(s):  
Lotbar Kuhlen
Keyword(s):  
Moral Norms ◽  
The Face ◽  
Recognition Theory ◽  
Theory Of Law ◽  
Definition Of

AbstractLüderssen’s definition of legal and moral norms according to the varying degree of consent given to them is rejected. The definition proposed is not only imprecise, but also inadequate in substance as it is in contradiction with central and plausible aspects of our conception of morals. On the face of it the definition put forward is convincing only in the context of a “recognition-theory” of law. It is argued that this theory is not convincing either and moreover can manage without this definition.

scholarly journals Doctrinal approaches to the definition of civil procedural law

2021 ◽  
pp. 82-90
Author(s):  
Olena Shtefan
Keyword(s):  
Public Relations ◽  
International Law ◽  
The State ◽  
Legal Norms ◽  
Civil Process ◽  
Procedural Law ◽  
Civil Proceedings ◽  
The Subject ◽  
The Russian Federation ◽  
Definition Of

Keywords: civil procedural law, civil process, civil proceedings, subject of civil procedurallaw The process of reforming procedural legislation, its harmonization, harmonization with theprinciples and standards of international law, as well as other processes taking place insociety and the state are the factors that affect the need to revise the doctrinal definitions of civil procedural law. One of the most developed issues in the theory of civil procedurallaw is its definition. In turn, the development of science is impossible without reviewingeven established doctrinal approaches and provisions.An analysis of the special literature, mostly educational, led to the conclusion thatscholars use approaches to the definition of the term "civil procedural law", which weredeveloped and included in the theory of civil procedural law in the 50s-60s of the twentiethcentury. Modern definitions of civil procedural law are based on the provisions of theold invalid legislation, or on the provisions of the legislation of other countries (for example,the Russian Federation). Therefore, the purpose of this study was to review the existingdefinitions in the theory of civil procedural law and their harmonization with theprovisions of current legislation of Ukraine.In the process of researching doctrinal approaches to the definition of civil procedurallaw, it was found that researchers invest in the definition of the subject, purpose of thisbranch of law, as well as additional characteristics of civil procedural law (participants,sectoral affiliation, stage, etc.).The lack of a single doctrinal approach to the definition of the subject of civil procedurallaw, which is part of the definition of civil procedural law, prompted to study thesubject of civil procedural law and propose its author's definition.Based on the provisions of current legislation, the article presents the author's definitionof civil procedural law as a branch of law, set and system of legal norms, the subjectof which are public relations arising in civil proceedings on the basis of fair, impartialand timely consideration and resolution of civil cases in order to effectively protect violated,unrecognized or disputed rights, freedoms or interests of individuals, rights and interestsof legal entities, the interests of the state.

scholarly journals ДЕЯКІ ПРОБЛЕМИ ТИМЧАСОВОГО ВИЛУЧЕННЯ ТА АРЕШТУ МАЙНА ЯК ЗАХОДІВ ЗАБЕЗПЕЧЕННЯ КРИМІНАЛЬНОГО ПРОВАДЖЕННЯ

2019 ◽  
Vol 13 ◽  
pp. 520-528
Author(s):  
І. В. Гловюк
Keyword(s):  
Criminal Procedure ◽  
Point Of View ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
The Subject ◽  
Definition Of

Стаття присвячена дослідженню проблемних питань застосування тимчасового вилу­чення майна та арешту майна як заходів забезпечення кримінального провадження із урахуванням наявної судової практики. Указано та обґрунтовано некоректність норма­тивного визначення тимчасового вилучення майна. Відмічено прогальність нормативного визначення арешту майна в аспекті об'єктів, на які може бути накладено арешт. Сфор­мульовано пропозиції щодо внесення змін та доповнень до ч. 1 ст. 167 КПК щодо ви­значення поняття «тимчасове вилучення майна» та ч. 1 ст. 170 КПК щодо осіб, на майно яких може бути накладено арешт.   The article is dedicated to the research of problematic issues of exercise of temporary seizure of property and arrest of property as means for ensuring criminal proceedings considering relevant judicial practices. Author mentioned and justified his point of view regarding incorrectness of the normative definition of seizure. Author also indicated whitespaces of the regulatory definition of arrest of property in the aspect of objects that may be the subject for the arrest. Proposals for amendments and additions to the part 1 of the Art. 167 of the Criminal Procedure Code regarding the definition of «temporary seizure of property» and part 1 of the Art. 170 of the Criminal Procedure Code regarding the scope of persons whose property may be arrested have been made.

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