De verdeling van de nationale en regionale bevoegdheden

Res Publica ◽  
1984 ◽  
Vol 26 (3) ◽  
pp. 363-373
Author(s):  
Leo Neels

The distribution of competences between the national state, the communities and the regions is subject to criticism. The state reform laws f 1980 have admittedly led to many confiicts, due to a lack of clearnessof the terms of the law and to the incomplete character of the reform.A clear option is to be made between a federal regime as such, a regionalised state and separatism; so far this option has only been postponed, which leaves the actual state structure rather confused and hardly workable.A series of conditions both of a politica! and a legal nature have to be fulfilled in order to clear the situations.

Legal Ukraine ◽  
2020 ◽  
pp. 30-41
Author(s):  
Volodymyr Klochkov

Each legal concept has not only content (content), but also a form. The form requires compliance with the rules for the definition and construction of concepts. Improving legal terminology is impossible without deep development and observance of the rules of analysis and the precise construction of the conceptual apparatus. Gaps in legislation and regulations are derived from inaccuracy, lack of clarity and simplicity of conceptual constructions. The inconsistency of certain legal norms found in various laws and regulatory legal acts, the inconsistency of norms with the prevailing realities of legal life in the state and society impede the fulfillment by state authorities, including law enforcement, of their functional responsibilities. Mistakes made in the preparation of draft laws and regulations, methodological recommendations mainly boil down to the violation of the requirements of the unified laws of logic: the law of identity, the law of contradiction, the law of the excluded third and the law of sufficient reason. The use of inappropriate terminology causes complications in the application of legal norms. The Constitution of Ukraine assigns to the prosecutor the function of representing the interests of a citizen or state in court in cases specified by law. The term representation is not exactly chosen. The word "representation" means: the performance of the duties of a representative; an institution representing the interests of someone; elections, as well as the law, the procedure for the election of representatives to any bodies; representation is a legal relationship in which one party (representative) is obligated or entitled to make a transaction on behalf of the other party that it represents; representation means activity on behalf of someone, on behalf of a person. By its legal nature, a representative can only be authorized for transactions that the person he represents is entitled to carry out. The representation of the prosecutor's office in court is specific, since this body does not need instructions, contracts or other documents. The prosecutor or his deputy should act not on behalf of someone, but on behalf of the state in favor of the person and citizen, state or society, within the limits established by law. In the legislation there is a conflict (conflict) in the law regarding the term «representation». To eliminate such a conflict, it is necessary to amend the Law of Ukraine «On the Prosecutor's Office». Key words: definition of concepts, laws and regulations, accuracy, clarity, brevity of terms.


The Rohingya ◽  
2020 ◽  
pp. 110-134
Author(s):  
Nasir Uddin

Chapter 5 focuses on the vulnerable conditions of stateless people because the state regulates their everyday lives in various forms, committing severe injustices and producing various inequalities by yielding illegibility in the state structure. The modern nation-state has produced the concept of citizenship rendering some stateless. Since the state of statelessness sanctions that some people do not belong to any state, they cannot claim any rights from any state and therefore easily become subject to injustice, inequality, and discrimination and are even subjected to death. The treatment of stateless people as illegal human bodies and as animals can be termed as ‘bare life’, as Agamben would argue. A life is ‘bare’ because it can be taken by anyone without any legal intercession, as this life does not exist ‘before the law’. This chapter depicts a vivid picture of the Rohingyas, where the state intervenes in their everyday lives amid the reproduction of vulnerabilities in order to reconfirm their statelessness.


Author(s):  
Dragan Jovašević

In 2008, the Republic of Serbia adopted a special Law on Liability of Legal Persons for Criminal Offenses. In doing so, on the basis of the international standards contained in the relevant international documents, it joined a large number of countries that introduced criminal liability of legal persons for crimes committed in addition to their responsible persons at the end of the 20th century. For legal persons, the law prescribed a disparate system of criminal sanctions in response to the state-society’s response to such unlawful and punishable conduct. The system of criminal sanctions in the law of the Republic of Serbia includes: penalties, probation and security measures. The law defined the concept, character, legal nature, manner, procedure, pronouncement and execution of criminal sanctions, whose characteristics this particular work speaks of.


Author(s):  
M. Pleskach

The article is devoted to the issue on balancing the important interests of a person, a society and the state in cyber space by means of administrative law. The purpose of this article is to determine the legal nature and the role of the correspondence of the important interests of a person, a society and the state in cyber space in the context of administrative and legal provision of cyber security. The paper also deals with a proper balance between the law-enforcement interests of the state and the respect for fundamental human rights. The method of analysis has revealed in clarifying some features of concepts "interest", "need", "right". The method of synthesis has been used to define common concepts, for example "person's interest in cyberspace". Comparative legal method has been used in the process of comparison of the legislation of Ukraine and the international legislation that governs the issue on balancing the important interests of a person, a society and the state in cyber space. The author of this research presents the possible structure of person's cyber security through a set of important person's rights and interests in cyberspace, for example, the right to access to the Internet; the right to protect personal data in cyberspace; the right to be protected from aggressive marketing technologies in cyberspace, the prohibition of monitoring, including through cookies, HTTP, HTML5 markers or other technologies; the right to education, the right to access knowledge through the use of cyberspace etc. Conclusions and proposals of this research can be used for further research and for improving the administrative and information legislation of Ukraine, including the Law of Ukraine "On the Fundamental Principles of Cyber Security of Ukraine". Keywords: the balance of interests of the person, society and state, cyber space usage, public interest, private interest.


Author(s):  
Nataliia Iakymchuk

The article examines the theoretical and practical issues of application of the Law of Ukraine «On Sanctions» of August 14, 2014 and analyzes the existing views on the legal nature of such «legal phenomenon» as sanctions - special economic, financial and other restrictive measures (sanctions) provided by this Law. The article specifies the main issues facing the researchers of the Institute of Sanctions. The purpose of the article is coverage of the state of legal regulation and legal nature of such a phenomenon as sanctions (economic, financial) in the right to Ukraine. In order to achieve this goal, the author used a set of general and special methods that are characteristic of legal science. The article covers the issue of Ukraine's sovereign right to protection, in particular through the application of economic and other restrictive measures (sanctions) «to protect national interests, national security, sovereignty and territorial integrity of Ukraine, counter terrorist activity, as well as prevention of violations, restoration of violated rights and freedoms and legitimate interests of citizens of Ukraine, society and the state». The range of subjects against which sanctions can be applied has been studied, namely: a) foreign states; b) foreign legal entities; c) legal entities under the control of a foreign legal entity or a non-resident individual, foreigners, stateless persons; d) entities engaged in terrorist activities. Sanctions are defined as legal measures to respond immediately to violations of various rights, from encroachment on state sovereignty to the commission of a crime of an international nature, which are temporary, which are applied primarily through coercive measures, which are implemented using constitutional, financial, administrative, economic, criminal procedural, executive, economic procedural and other branches of law. The issues of the grounds for application of sanctions, their types and criteria for their delimitation, the term of application of sanctions, as well as the range of authorized entities in the field of their application are covered. The main approaches of scholars to the characterization of sanctions as measures of influence are investigated. It is noted that sanctions are measures of influence different from measures of legal responsibility, which may have a "non-criminal" nature. It is stated that sanctions are measures of influence that are applied, albeit in parallel, but in a systematic connection with the criminal prosecution imposed by the state or executed by it as a subject of international cooperation in the fight against crime. Their application is, firstly, due to the decision at the international or regional level on the application of international economic (financial) sanctions, personal sanctions in the course of criminal prosecution for acts of an international crime. However, Ukraine is obliged to adhere to international standards of the legal mechanism for the application of sanctions at the domestic level, to improve the procedural principles of their application, appeal procedures and amendments to the decision. We consider the participation of the Commissioner for Human Rights in the process of reviewing the decision on the application of sanctions and appealing the decisions necessary. Amendments to the Law of Ukraine "On Sanctions" are proposed in order to establish among the necessary grounds for the application of sanctions to individuals the opening of criminal proceedings against them, and for legal entities - the opening of criminal proceedings against related persons, as well as amendments to the Criminal Procedure Code of Ukraine, as it does not contain provisions on such preliminary measures (securing and stopping) as "sanctions". In addition, in general, the sanctions procedure requires greater transparency, and it is concluded that sanctions can be applied to Ukrainian citizens only if they are suspected of involvement in terrorist activities.


Author(s):  
N. I. Koloskova ◽  
E. А. Аlentsov ◽  
E. А. Nedostup ◽  
O. S. Ostapovich

The article is devoted to the Constitution of Brazil of 1824, the first in the history of this country. The political structure of the Brazilian Empire described in the article was based on this Constitution, which was in force from its adoption until the proclamation of the First Brazilian Republic (1889). The article analyzes the tasks that stood at the creation of the Constitution and the main changes made to the state structure of Brazil after the law was initiated. It is emphasized that, although the Imperial Constitution did not solve all the problems in Brazilian society, it was the first to identify the issues to be resolved, and that the monarchy lasted longer in Brazil than successive Republican and dictatorial regimes, including thanks to the basic law of the country in the edition of 1824.


Teisė ◽  
2018 ◽  
Vol 108 ◽  
pp. 127-134
Author(s):  
Нanna Shafalovich

[only abstract in English; full article, abstract in Russian] The movement towards the formation of the state and the law of the innovative type poses new challenges, for an adequate response to which the entire system of legal regulation needs to be updated. The change of priorities in the legal regulation gives rise to perspectives, which generally point to a greater balance of the law of the innovative type.  Unlike other types of states, a state with a strategically innovative function (an innovative state) takes on the task of promising legal regulation of the public relations. For the legal regulation ‘‘on the lead’’ (perspective) will require a change in the entire system of the legal regulation. In particular, it will require among other measures the legalization and the expansion of the range of sources of law, its addition to auxiliary sources of law of a new type, close to legal doctrine. These include general legal principles, the understanding of law, the tendencies of the law development, the legal facts theory. In conditions of formation of the law of innovative type the following the legal regulation meets the following challenges: First, innovation development is confronted with a contradiction in the concept of a free market and central planning; Secondly, the innovative state should achieve an outstripping effect from the legal regulation (especially the innovation sphere); Thirdly, states that are receptive to innovation are characterized by the inevitable complication of legal ties; Fourthly, the requirement of constant renewal of the law exacerbates the problem of balancing the ever-increasing dynamism and the stability of legal regulation; Fifth, legal regulation in innovative states will require modernization and democratization. The adoption of measures to adapt the legal regulation system to the requirements of an innovative type of law makes it possible to single out the following perspectives: 1) “Denationalization”, the transition from the actual state monopoly to the sources of the law to “private-state partnership”, i.e. alignment and mutual influence of the sources created by the state and authorized by it; 2) Legalization of the entire system of sources of law (including the Republic of Belarus) through legislative consolidation and recognition of basic and auxiliary sources of law de jure, and not de facto, as it is now; 3) The balance of individual and normative types of legal regulation, eliminating the disproportion between the law-making and law-realizing (law-enforcement) stages of the legal regulation mechanism; 4) Increasing the role of dispositive norms that involve the use of more flexible sources of law alternative to direct legal establishment; 5) Redistribution of the main burden in legal regulation from the state to non-state entities (supranational and “sub-state”) by changing the ratio of governance and self-government, centralization and decentralization.


Author(s):  
Artem Viktorovich Vorob’ev

We consider the importance of advocateship in the process of protecting human rights and freedoms, the interests of organizations, society and the state. We indicate the grounds and circumstances of the provision by lawyers of qualified legal assistance to certain categories of citizens, including on a non-refundable basis. We reveal the importance of the professional and business qualities of a lawyer, as a representative of the lawyer community, in providing legal assistance. We pay attention to the high moral, ethical and legal nature of the lawyers activities, in particular, the moral requirements for the lawyer personality; activity in defending the interests of the grantor (client); legal guarantees for the independence of a lawyer and others. Advocateship, as an institution that does not belong to state power, but to civil society, which has such characteristics as autonomy, independence, cor-poratism, self-government, has a significant role in the law enforcement ac-tivity of the state. Envisage to increase the role of the lawyer community in advocacy, to increase the qualifications of lawyer personnel, expand the rights of lawyers in providing legal assistance, and significantly improve the information and technical base. A number of legislative transformations to increase the effective functioning of the lawyer community, enhancing the professional advocateship independence of the Russian Federation, can be-come productive only when the state ensures the trust of citizens on the part of the lawyer community, it is also necessary to end impunity in the advocacy sphere, and increase the level of legal order and legality, to strengthen the supervision quality of the rights and freedoms of man and citizen observance institution.


Author(s):  
Yuriy Kozar ◽  
◽  
Yaroslav Popenko ◽  

The main factor in the criminalization of economic activity in the modern world in general and in Ukraine in particular, has been globalization - uncontrolled, without any rules, without the possibility of establishing fair competition. Thus, the issue of creating a separate law enforcement body to combat economic offenses has been on the agenda for many years and ended with the adoption of the Law of Ukraine “On the Bureau of Economic Security of Ukraine” on January 28, 2021. The article is devoted to the disclosure of the legal nature of a special law enforcement agency in the field of combating economic offenses, i.e. the Bureau of Economic Security of Ukraine. It is noted that the creation of a new civil service under the Ministry of Finance to replace the tax police and consolidate all powers to combat financial crimes against the state in one agency, while avoiding duplication of functions, is a priority requirement of the International Monetary Fund, which provides loans to the Ukrainian government for the development of the country's economy under the condition of successful reforms. The preconditions for the establishment of the Bureau of Economic Security in Ukraine are studied. Based on the analysis of the Law of Ukraine “On the Bureau of Economic Security”, the purpose, objectives, structure, principles of the Bureau of Economic Security of Ukraine are revealed. Attention is paid to the organizational and managerial aspects of the activities and powers of the Bureau of Economic Security of Ukraine. It is emphasized that the establishment of the Bureau of Economic Security of Ukraine will lead to more effective law enforcement activity in the formation and use of financial resources of the state and its economic security, and as a consequence, reduce shadow business in Ukraine and increase taxes and fees, optimize the structure of law enforcement, material and technical base and reduction of the total number of employees who fight crime in the field of finance.


Author(s):  
T. Panfilova

Problem setting. In different epochs, the state-building processes in Ukraine had characteristic features that should be taken into account today. The achievements of the Central Rada, the Hetmanate, the Directory, and the Soviet government in Ukraine reveal the complex external and internal circumstances of state-building. Political leaders of this period pursued their own principles of governance, often ignoring the lessons of the past. Under each government, there were different views among the political electorate on this issue, which did not always reflect the interests of the people of Ukraine, and important decisions were generally made to please Western Europe.Recent research and publications analysis. Historical events of the early XXth century in Eastern Galicia are interesting for researchers of various specialities. In particular, V. Velykochyi, L. Volosianko, Yu. Zaitsev, S. Kobuta, O. Krasivskyi, M. Lytvyn, K. Mytsan, I. Pater, H. Poslavska, O. Rublov, O. Reient, Yu. Slyvka, V. Soldatenko, I. Soliar and others.Highlighting previously unsettled parts of the general problem.  Modern problems of state-building in Ukraine and the participation of representatives of national minorities in them need a thorough scientific substantiation. In this regard, the direction of previously unresolved issues concerning the current state-building practices of the past years is singled out.Taking into account the lessons of national history, identifying the relationship between historical experience and modern problems, ensuring certain heredity, combining Ukrainian achievements with the achievements of world practice of state-building determines the topicality of the problem.Paper main body. Meaningful experience of state-building must be taken into account when reforming modern state structures and, in particular, regarding the definition of powers, tasks, cooperation of various branches of government. Nevertheless, the events of 1917 – 1920ies haven’t been studied enough, because the understanding of the achievements and miscalculations of Ukrainian state-building of the revolutionary era would help to outline the strategic understanding of Ukraine’s tasks at the present stage.In October 1918 after the collapse of the Austro-Hungarian Empire, the Ukrainians of Western Ukraine began preparations to create their own independent state. In the western Ukrainian lands, although the state revival took place under the significant influence of the events in the Dnieper region, in almost all aspects the desire of Western Ukrainians to gain state independence was radically different from the attempts of Eastern Ukrainians.In a short time, the West Ukrainian People's Republic managed to create a fairly effective system of public administration, based on the constitutional practice of Austria.Already in the first months in Western Ukraine, central and local public administration bodies were formed: the Ukrainian National Council, the State Secretariat, State Secretaries, County National Councils, County Commissioners, Public and City Councils, and Public and City Commissioners.The courts were independent of other branches of government, according to the law of November 21, 1918, and the Highest State Court in Lviv, following the Austrian model, was the Supreme court institution.The West Ukrainian People's Republic managed to ensure stability and order on its territory, despite the war, and it was even passed the Law on Land (April 14, 1919) and introduced its own currency – hryvnia and karbovantsi. Prompt and effective creation of public administration is a unique achievement in the whole of Eastern Europe. It was an ideal model of a modern European democratic state governed by the rule of law – the result of the propensity of Galicians to social organization, which developed significantly in the pre-war decade.The Act of Unity became a powerful manifestation of the will of Ukrainians to ethnic and territorial consolidation, evidence of their dynamic self-identification, and the formation of a political nation.Conclusions of the research and prospects for further studies. The experience of Ukrainian state-building is important for today, as it makes it possible to anticipate similar situations and avoid mistakes. The West Ukrainian People's Republic has left a noticeable mark in the development of Ukrainian national statehood. For the first time since the Galician-Volyn era, Western Ukrainians gained national independence. Important reforms have been carried out in many spheres of public life. An effective system of central and local authorities and administration, health care, education, publishing, and a capable Ukrainian Galician Army was created.The main achievement of the events of 1917 – 1920 was the revival of the idea of Ukrainian statehood and national-state consciousness of the population of Ukraine, and a new generation of Ukrainian intellectuals picked up the concept of the national-state building.


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