ON COGNITION AND PROVING IN CASES OF NON-CONTENTIOUS JURISDICTION

2021 ◽  
Vol 11 (5) ◽  
pp. 307-348
Author(s):  
V.V. ARGUNOV
Keyword(s):  
General Theory ◽  
Civil Law ◽  
Burden Of Proof ◽  
Original System ◽  
Legal Regulation ◽  
Standard Of Proof ◽  
Advantages And Disadvantages ◽  
Current State ◽  
National Tradition ◽  
Administrative Proceedings

The article analyzes the general theory of judicial knowledge and proof, its capabilities and implementation in the consideration and resolution of cases of special proceedings in civil, arbitration, administrative proceedings. The approaches to cognitive and evidentiary activities in controversial (claim) and indisputable (special) proceedings are compared. The author considers the original system of collecting, presenting and evaluating evidences, created in the field of voluntary jurisdiction in the countries of civil law, its advantages and disadvantages in comparison with the national tradition of the unity of legal regulation of judicial knowledge and proof. An overview of the current state of the doctrine and practice of proving in special proceedings is given, an opinion is expressed about the need to refine the general provisions on proving in special proceedings. The prospects for the normative establishment of the limits of judicial research in terms of the volume of facts and the depth of their knowledge are outlined. It is stated that in cases of special proceedings, the “standard of proof” has always been higher in comparison with cases of claim proceedings. A number of new rules for establishing the circumstances of cases and proving are proposed: the priority of direct personal perception of the judge in the cognition of facts that are important for the case before proving them; freedom of means of evidence – the ability to use information about the circumstances of the case without restrictions on its sources (means of proof); freedom in choosing the rules for extracting information from a source (means of proof); different regulation of the burden of confirmation and the burden of proof.

scholarly journals ADVANTAGES AND DISADVANTAGES OF THE CURRENT STATE OF ADMINISTRATIVE AND LEGAL REGULATION OF RELATIONS IN THE FIELD OF ELECTRICITY IN THE CONDITIONS OF UKRAINE'S EUROPEAN INTEGRATION

2020 ◽  
Vol 2 (4(106)) ◽  
pp. 123-129
Author(s):  
Д. А. Миколаєць
Keyword(s):  
Electricity Market ◽  
Energy Supply ◽  
Renewable Energy Sources ◽  
Legal Regulation ◽  
State Regulation ◽  
Electricity Sector ◽  
Local Networks ◽  
Advantages And Disadvantages ◽  
Current State ◽  
System Operator

The relevance of the article is that today, the use of electricity is an integral part of life and supports the normal implementation of the state social function, the function of protecting independence and territorial integrity. It is extremely important that the administrative and legal regulation of relations in the field of electricity meets modern socio-economic conditions, is independent of political factors and especially outside the legal and corrupt. The study of the current state of administrative and legal regulation of relations in the field of electricity will clarify the level of compliance and ways to improve the effectiveness of such regulation, its relevance. The article states that the distribution of electricity was not separated from the supply of electricity, which later led to the emergence of several energy supply companies in one area through the privatization of uncontrolled local networks, which were on the balance of enterprises in other industries (eg coal and metallurgy) , or through the alienation for debts of networks that were part of the regional energy supply company. In addition, methodological tools have been identified that determine the movement of the system of state regulation of the electricity sector. It is shown that in the conditions of the developed electricity market administrative-command management methods can be applied in fact only to state companies, in particular NEC "Ukrenergo" in terms of allocation of system operator and corporatization of the enterprise, which will transmit electricity through main and interstate networks. It is concluded that the current state of administrative and legal regulation of relations in the field of electricity is unstable, which is caused by the process of its reform. Positive aspects of the current situation include approaching market conditions, increasing proliferation of alternative and renewable energy sources and legislative encouragement of such activities, and the activities of authorized bodies have been improved, especially with regard to the administrative powers and tasks of the Regulator. At the same time, administrative and legal regulation should be aimed at meeting the needs of the population, especially the use of land for electricity, pricing, joint activities of authorized bodies. It should be emphasized that the existing shortcomings of administrative and legal regulation of relations in the field of electricity can be eliminated only comprehensively and consistently.

Recodification of the Civil Code of Ukraine and modernisation of the Civil Code of the Republic of Kazakhstan: A comparative analysis of the main ideas

2021 ◽  
Vol 28 (4) ◽  
pp. 190-199
Author(s):  
Nataliia S. Kuznietsova ◽  
Maidan K. Suleimenov ◽  
Farkhad S. Karagusov
Keyword(s):  
System Analysis ◽  
Civil Law ◽  
Legal Regulation ◽  
Civil Code ◽  
Current State ◽  
Clear Guideline ◽  
The Republic ◽  
Civil Codes ◽  
Historical Comparative ◽  
Main Ideas

Systematic updating of the civil legislation of Ukraine and modernisation of the civil legislation of the Republic of Kazakhstan are time-consuming tasks as evidenced by the analysis of changes that were made to the civil codes of Ukraine and the Republic of Kazakhstan and their law enforcement practice. Work on updating civil legislation requires an assessment of the current state and prospects of socio-economic development of Ukrainian society and the state, in particular the development of such an important component as the national legal system, which is presented in the concept of updating the Civil Code of Ukraine. It is crucial that the main areas of the concept orient the development of civil law in Ukraine, considering the current experience of recodification of civil codes of other states within the continental legal family. Considering that civil legislation is also being modernised in the Republic of Kazakhstan, the purpose of this study is to compare the main ideas of recodification of the Civil Code of Ukraine and modernisation of the Civil Code of the Republic of Kazakhstan to establish a systematic approach and a unified concept for the development of civil law and form a clear guideline for the improvement of civil legislation. The study analyses the areas of updating the civil legislation of Ukraine and the Republic of Kazakhstan based on both general (historical, comparative, system analysis) and special (specific-sociological, formal legal, legal-technical, etc.) methods. One of the most reasonable ways to ensure continuity of legal regulation of civil relations and ensure the modernisation of the legal basis for the development of the sphere of social and legal relations in the long term is the approach that should preserve all the achievements of existing civil codes, considering modern European approaches and the specific features of civil and business turnover

Proof of Causation in Tort Cases

2020 ◽  
Vol 82 ◽  
pp. 149-160
Author(s):  
Bohdan Karnaukh
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Burden Of Proof ◽  
Reasonable Doubt ◽  
Criminal Cases ◽  
Ways Of Coping ◽  
Law System ◽  
Standard Of Proof ◽  
Civil Cases ◽  
Civil Law System

The article addresses the problem of uncertainty over causation in tort cases. It reveals the interconnection between burden of proof and standard of proof. The author provides a comparative overview of approaches to standard of proof in common law and civil law systems. It is argued that while in common law there are two different standards viz: beyond-reasonable-doubt-standard for criminal cases and balanceof-probabilities standard for civil cases in civil law system there is only one standard applicable both to criminal and civil cases. With comparative analysis in the background the article also reveals the peculiarities of Ukrainian law in the respect of the issue raised. The problem is approached in a pragmatic manner: using a hypothetical case the author models practical outcomes entailed by each of the approaches being applied to the case. Eventually the conclusion is made that there are four ways of coping with uncertainty over causation: (1) to reverse the burden of proof; (2) to calibrate the standard of proof for certain cases; (3) to recognize the very creation of the abnormal risk as a compensable damage; and (4) to multiply damage plaintiff sustained by the probability factor indicating the likelihood of the damage being actually caused by the defendant.

scholarly journals VERIFICATION AND ASSESMENT OF AN EXPERT’S CONCLUSION IN CRIMINAL PROCEEDINGS

2021 ◽  
pp. 120-138
Author(s):  
O. Baulin ◽  
O. Izotov
Keyword(s):  
Legal Regulation ◽  
Reasonable Doubt ◽  
Presumption Of Innocence ◽  
Structural Elements ◽  
Criminal Proceedings ◽  
Scientific Validity ◽  
Standard Of Proof ◽  
Current State ◽  
Procedure Code ◽  
The Supreme Court

The article considers the procedural and forensic aspects of the verification and assessment of an expert’s conclusion in criminal proceedings, its regulation under the current legislation of Ukraine. The authors define the assessment of the expert’s conclusion and indicate its structural elements and features, as well as what is its difference from the verifying the expert’s conclusion, since the latter is characterized not only by the operations of mental activity, but also by the conduct of investigative (search) and other procedural actions. It is noted that the verification of the expert’s conclusion in criminal proceedings always precedes its assessment. The assessment of the expert’s conclusion includes the analysis of the follows: – compliance with the procedural rules for the appointment, conduct and execution of the xamination; – competence and adequacy of an expert; – expert’s conclusions on compliance with the tasks assigned to him/her; – completeness and scientific validity of the conclusion; – the data of the conclusion regarding its relevance; – compliance of the expert’s conclusion with other evidence collected in criminal proceedings. The subjects carrying out criminal proceedings pay particular attention to the modern practice of assessing the expert’s conclusion. The approach is perceived critically, according to which only the categorical conclusion of the expert has evidentiary value, and the court cannot base the judgment on the probabilistic conclusion. Based on the provisions of the principle of the presumption of innocence, and on the example of the assessment of the conclusions of the forensic medical examination on the probabilistic cause of the death of the victim, which was made by the Supreme Court, applying the standard of proof beyond reasonable doubt, the authors point to the obligatory use of probabilistic expert conclusions by courts to justify its acquittals. The article draws conclusions about the current state and limits of legal regulation of the assessment of an expert’s conclusion in criminal proceedings, the rules of which, according to the authors, do not need to be fixed in a separate article of the Criminal Procedure Code of Ukraine.

scholarly journals Advantages and disadvantages of the current state of the administrative and legal regulation of tax subsidiaries in Ukraine

Social Law ◽  
2019 ◽  
pp. 125-131
Author(s):  
S. Liskov
Keyword(s):  
Detailed Analysis ◽  
Legal Regulation ◽  
Legal Responsibility ◽  
Executive Power ◽  
Advantages And Disadvantages ◽  
Current State

The article deals with the current state of administrative and legal regulation tax service entities in Ukraine. The aim is to analyze the advantages and disadvantages of such regulation. It gives a detailed analysis of legislation and practice of activity of tax service entities in Ukraine. The problems of administrative and legal regulation are investigated and the main way of their solution. The paper gives valuable information about changes in the Ukrainian legislation on the powers, social guarantees and legal responsibility of tax authorities. Discussed in the article issue can be used as a strategy to improve the administrative and legal regulation of the activities of such state bodies. The article is of great help to legislative and executive power for the development of legal acts.

scholarly journals Certain Aspects of the Analysis of Cryptocurrency Transactions during the Prevention and Investigation of Crimes

2021 ◽  
Vol 80 (1) ◽  
pp. 93-100
Author(s):  
В. В. Носов ◽  
І. А. Манжай
Keyword(s):  
Law Enforcement ◽  
Legal Regulation ◽  
Point Of View ◽  
Law Enforcement Agencies ◽  
Risk Levels ◽  
Advantages And Disadvantages ◽  
Blockchain Technology ◽  
Stage Of Development ◽  
Current State ◽  
Current Stage

The analysis of separate tools for the visualization of movement of cryptocurrency values, and also identification of users who carried out the corresponding transactions has been carried out. The advantages and disadvantages of cryptocurrency from the point of view of offenders and law enforcement agencies have been studied. The main directions of using cryptocurrency in a criminal environment have been determined. The current state and perspectives of normative and legal regulation of cryptocurrency in Ukraine have been analyzed. Theoretical principles of cryptocurrency functioning have been studied. The basic concepts used in this area have been revealed. The properties of cryptocurrency have been described. The mechanism of its issuance of guaranteeing pseudo-anonymity while working with cryptocurrency has been outlined. Some features of blockchain technology and formation of cryptocurrency addresses have been revealed. It has been noted that one of the first and most well-known cryptocurrency is bitcoin. The format of bitcoin address presentation has been described. It has been emphasized that bitcoin wallet software can operate with any number of addresses or each address can be served by a separate wallet. The technology of mixing transactions and the method of increasing the anonymity of CoinJoin have been described. The authors have revealed the possibilities of separate services intended for the analysis of cryptocurrency transactions (Maltego, Bitconeview, Bitiodine, OpReturnTool, Blockchain.info, Anyblockanalytics.com, Chainalysis, Elliptic, Ciphertrace, Blockchain Inspector). The process of risk assessment and construction of visual chains of cryptocurrency transactions has been demonstrated on the example of the “Crystal Expert” service. Different types of bitcoin addresses’ holders and risk levels have been described. The main and additional investigation tools used on the “Crystal Expert” platform have been revealed. Based on the conducted analysis, the authors have defined the main tasks for law enforcement agencies at the current stage of development of cryptocurrency. The basic requirements for tools designed for cryptocurrency analysis have been outlined. The authors have suggested some measures of law enforcement agencies’ respond to threats related to cryptocurrency.

scholarly journals Advantages and disadvantages of social protection of public service employees

Social Law ◽  
2019 ◽  
pp. 42-47
Author(s):  
V. Gavriluk
Keyword(s):  
Public Service ◽  
Social Protection ◽  
Legal Regulation ◽  
Executive Power ◽  
Service Workers ◽  
Service Employees ◽  
Advantages And Disadvantages ◽  
Current State ◽  
The Social ◽  
Service Activities

The article deals with the social protection of public service workers. The aim is to find out advantages and disadvantages of modern legal regulation of social protection of public service workers. Revealed that the social protection of public service workers varies depending on the category of such employees and the direction of public service activities. The paper highlighted the need for improved social protection for public service employees by creating common and uniform rules of law on the principles and criteria for providing such protection. Discussed in the article advantages and disadvantages of the current state of social protection of public service workers can be used as the basis of strategy to improve the work of legislative and executive power in Ukraine.

Advantages and disadvantages of electronic identification using a mobile digital signature (MOBILE ID) in modern civil law

2021 ◽  
pp. 104-111
Author(s):  
Alexander Matsegorin ◽  
Oleksandra Tsaryk
Keyword(s):  
Electronic Commerce ◽  
Digital Signature ◽  
Legal Status ◽  
Civil Law ◽  
Legal Regulation ◽  
Main Body ◽  
Electronic Signatures ◽  
Advantages And Disadvantages ◽  
Commodity Money ◽  
The Law

Problem setting. Due to the rapid impact of information and communication technologies on commodity-money relations, which are in the sphere of civil turnover in Ukraine, the number of contracts concluded in electronic form is significantly increasing. The scope of electronic documents both in contractual civil law relations and in general in the relations of individuals with government agencies, courts and other public law entities has a clear tendency to expand and grow. Thus, in many areas of commodity-money exchange, the interaction of executors and customers (clients) has reached a completely new organizational and legal level and is carried out exclusively online, because the territorial remoteness and implementation of quarantine measures against COVID-19 is not always possible to sign an agreement on paper. These statements determine the relevance of the chosen research topic. The object of the study is the civil legal relationship using a mobile digital signature (Mobile ID). The subject of the research is the advantages and disadvantages of electronic identification with the use of mobile digital signature in civil circulation. The state of research of the problem. Such scientists as M. I. Anokhin, Yu. V. Borodakiy, N. P. Varnovsky, V. M. Glushkov, M. V. Denisova, M. M. Dutov, A.V. Kobets, G.I. Kupriyanova, A. Matvienko, V. A. Onegov, I. A. Semaev, V. A. Shakhverdov, M. N. Tsyvin, V. V. Yashchenko and others. The target of research is to study the features of the legal regulation of electronic digital signature of a person and his legal status with the analysis of issues arising from the use of such a signature in civil turnover, the formulation of proposals for their solution. Article’s main body. The possibility of using mobile digital signatures in the document flow is provided by the relevant regulations. The Law of Ukraine “On Electronic Digital Signature” adopted on May 22, 2003, defines the legal status of an electronic digital signature and regulates the relations that arise when using an electronic digital signature. This Law does not apply to relations arising from the use of other types of electronic signatures, including digitized images of handwritten signatures. At the same time, the provision of Part 3 of Article 207 of the Civil Code of Ukraine on the use of facsimile reproduction of the signature by means of mechanical, electronic or other copying, as well as electronic signature or other analogue of handwritten signature with the written consent of the parties, which must contain samples handwritten signatures. The legislative base on electronic signatures is currently constantly growing, a passport of a citizen of Ukraine in the form of a card with a contactless electronic carrier (and an electronic digital signature) has been introduced into the continuum of indirect electronic reality. The Law of Ukraine "On Electronic Commerce" of September 3, 2015 regulates the legal regulation of the field of electronic commerce in Ukraine, defines the procedure for electronic transactions with the use of information and telecommunications systems. The legal basis for the provision of electronic trust services, including cross-border, the rights and obligations of the subjects of legal relations in the field of electronic trust services are subject to the Law of Ukraine "On electronic trust services" of October 5, 2017. The number of diverse legal material causes some difficulties in the practical application of a mobile digital signature. Differences in national terminology, which are contained in different sources, as well as existing legal gaps determine the relevance of this problem and require appropriate research. Conclusions and prospects for the development. The scientific novelty of the study is a comprehensive consideration of this topic, namely: the pros and cons of using a mobile digital signature, making suggestions for improving existing legislation with concepts and functions related to the use (Mobile ID).

IMPLEMENTATION OF THE CONCEPT OF UNITY OF CIVIL PROCEDURE IN THE MODERN LEGISLATION

2021 ◽  
Vol 11 (1) ◽  
pp. 30-43
Author(s):  
M.A. FOKINA
Keyword(s):  
Comparative Analysis ◽  
Burden Of Proof ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Point Of View ◽  
Methodological Basis ◽  
The Moment ◽  
Administrative Proceedings ◽  
Constituent Elements ◽  
Legal Force

The article provides a comparative analysis of the legal regulation of proof and evidence in civil and arbitration proceedings, administrative proceedings. From the point of view of the unity and differentiation of the civil procedural form, the problems of legal regulation of proof and evidence in three procedural regulations are considered. The author considers the concept of judicial law as a methodological basis for unification in the legal regulation of proof and evidence. Judicial law is considered as a possible basis for the unity of civil procedure, its main concepts are highlighted: the unity of the goals of civil procedure; the unity of the principles of civil procedure; systemic interconnection of its constituent elements. As a result of the study, the author came to the conclusion that there are unjustified discrepancies in the legal regulation of proof and evidence. The author deduces this conclusion from the analysis of the mechanism of proof, enshrined in three procedural rules, the study of the rules for the distribution of the burden of proof, the admissibility of evidence and the exclusion of evidence. Proposals have been made to improve the legal regulation of proof and evidence, aimed at eliminating unjustified discrepancies. Also, the study raises questions about determining the moment from which the evidence presented by the person participating in the case may lose legal force.

scholarly journals Legal Regulation of Environmental Impact Assessment in Ukraine: Current State

2018 ◽  
Vol 5 (2) ◽  
pp. 152-162 ◽  
Author(s):  
Nazar Shparyk
Keyword(s):  
Environmental Impact ◽  
Impact Assessment ◽  
Environmental Impact Assessment ◽  
Legal Regulation ◽  
Assessment Procedure ◽  
Advantages And Disadvantages ◽  
Current State ◽  
The Law

The article analyzes the main provisions of the new Law of Ukraine “On Environmental Impact Assessment”. The terminology, procedure and mechanisms for environmental impact assessment are described. The possible problems that the parties will face in practice undergoing an environmental impact assessment procedure are reflected. The advantages and disadvantages of the new Law are highlighted and possible problems in the implementation of the norms of the Law are analyzed.

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