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.

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".

NEW CLASSIFICATION OF PRINCIPLES OF CIVIL PROCEDURE

2021 ◽  
Author(s):  
Тимур Султанович Габазов ◽  
Амир Ахметович Мужахаев ◽  
Аминат Аслановна Солтамурадова
Keyword(s):  
Civil Procedure ◽  
New Classification ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Key Factor ◽  
The Subject ◽  
The Right

В представленной статье кратко раскрывается смысл понятия такого явления, как принцип гражданского процессуального права, а также дана классификация принципов, уже существующих и утвердившихся в теории гражданского процесса. Авторы работы предприняли попытку разработать новую классификацию принципов гражданского судопроизводства, отличную от общепринятой, в которой ключевым фактором выступает субъект, которому эти принципы адресованы по своему содержанию. По результатам проведенного исследования выделены субъекты, которым адресованы действия этих принципов: адресованные только суду; адресованные только лицам, участвующим в деле; - адресованные всем субъектам гражданского судопроизводства в целом (общие). Можно вполне обосновано сказать, что новая классификация принципов гражданского процесса, в зависимости от субъекта имеет право на существование. The presented article briefly reveals the meaning of the concept of such a phenomenon as the principle of civil procedural law, and also gives a classification of the principles that already exist and are established in the theory of civil procedure. The authors of the work attempted to develop a new classification of the principles of civil proceedings, different from the generally accepted one, in which the key factor is the subject to whom these principles are addressed in their content. According to the results of the study, the subjects to whom the actions of these principles are addressed: addressed only to the court; addressed only to persons participating in the case; - addressed to all subjects of civil proceedings in general (general). It can be reasonably said that the new classification of the principles of civil procedure, depending on the subject, has the right to exist.

Intersectional relations between executive law and civil law of Ukraine

2021 ◽  
pp. 169-175
Author(s):  
N. Sergiienko
Keyword(s):  
Legal Status ◽  
Mutual Influence ◽  
Civil Law ◽  
Scientific Research ◽  
Civil Code ◽  
Scientific Article ◽  
Executive Process ◽  
The Subject ◽  
Definition Of

The scientific article is devoted to analyze the intersectional relations between executive law of Ukraine and civil law of Ukraine. The classification of forms of intersectional relations, offered by M.Yu Chelyshev, was taken as the ground of theoretical and methodological base of scientific research the intersectional relations between executive law of Ukraine and civil law of Ukraine. Even though this scientist-lawyer researched the intersectional relations of civil law, grounding on the subject of his scientific researches, his classification is stated as universal and grounded enough and can be used for different legal researches. In the scientific article the intersectional relations between executive law of and civil law of Ukraine are discovered though direction as follows: 1) intersectional interaction between executive law of Ukraine and civil law of Ukraine (it represents by using in executive law definitions and constructions of civil law. As an example of definitions and constructions of civil law, that are used in executive law, can be stated the definition of agreement); 2) intersectional influence between executive law and civil law (it represents by mutual influence of compositions of executive law and civil law, especially norms and institutions. The bright example of that mutual influence is the legal status of some kinds of property on the context of forfeiture the property – some kinds of property are out of forfeiture in the executive process, despite that property are out of turnover restrictions); 4) intersectional legal and collision regulation (it represents by direct and indirect mutual renvois between civil legislation and executive legislation. As an example can be used the direct renvoi to art. 28 of The Civil Code of Ukraine from subpar. 5 par. 2 sec. III of The Instruction of Compulsory Execution Organization, approved by The Ministry of Justice of Ukraine from 02.04.2012 under № 512/5).

scholarly journals The criminal responsibility for defamation of knowingly innocent

2021 ◽  
Vol 10 (44) ◽  
pp. 241-251
Author(s):  
Vira Navrotska ◽  
Oksana Bronevytska ◽  
Galyna Yaremko ◽  
Roman Maksymovych ◽  
Vita Matolych
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Scientific Article ◽  
Criminal Prosecution ◽  
Innocent Person ◽  
Criminal Proceedings ◽  
Self Disclosure ◽  
Procedural Law ◽  
The Right

The scientific article analyzes the acute discussion in law enforcement practice and procedural science of the problem of the possibility of criminal prosecution of a suspect, accused of defaming a knowingly innocent person in the commission of a crime. The theoretical basis of the article are scientific works on criminal law and criminal procedural law (both domestic researchers and foreign experts). A set of general scientific, special scientific and philosophical methods of scientific knowledge has been used while preparing the scientific article, in particular dialectical, historical, comparative, dogmatic (formal-logical), system-structural analysis, modeling. It is substantiated in the article that the behavior of the suspect, accused, which is manifested in slandering of a knowingly innocent person, does not constitute the right to freedom from self-disclosure. It is also proved that both freedom from self-disclosure and the right to defense in criminal proceedings must have certain limits, in particular, it is rights and interests of other subjects protected by criminal law. We stated that the suspect or accused should be liable for misleading the court and pre-trial investigation bodies even if such deception was used to protect against the suspicion (or accusation), to avoid criminal liability.

scholarly journals Application of preventive measures in the criminal process: current issues

2020 ◽  
pp. 122-126
Author(s):  
V.S. Suslova ◽  
O.I. Tyshchenko
Keyword(s):  
Preventive Measures ◽  
Preventive Measure ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Legal Provisions ◽  
Procedure Code ◽  
Wide Range ◽  
Definition Of ◽  
The Right ◽  
Criminal Matters

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

scholarly journals INFORMATION AS THE BASIS FOR THE DIFFERENTIATION OF THE SUBJECT AND OBJECTS OF FORENSIC EXAMINATIONS

2017 ◽  
Vol 17 ◽  
pp. 139-146
Author(s):  
M. G. Shcherbakovskiy
Keyword(s):  
Direct Object ◽  
Legal Information ◽  
Procedural Law ◽  
Forensic Examination ◽  
The Subject ◽  
Definition Of ◽  
Relationship Of ◽  
The Relationship ◽  
Expert Study

The subject offorensic examination as a practical activity is one of the most important categories offorensic examinations theory. The subject offorensic examination is used to classify forensic examinations. The definition of the subject offorensic examinations through the prism of information theory categories is the most productive. Information is a part of the data about the investigated object which is used to solve a particular task. Legal information is used during investigation of crimes. The author proposes a classification of legal information. Information is divided into criminally relevant and neutral, depending on the relationship of the data to the event of the crime. Information is procedural or nonprocedural, depending on the method of receipt in accordance with the procedural law. Information is evidentiary if it presents the content of evidence by itself. Information is orienting when it’s used for organizational or tactical purposes. Information is criminalistic, expert or operative-search, depending on the methods and subjects of its receipt. Information, received by the expert during the investigation, is criminally relevant or neutral, procedural, expert, evidentiary or orienting. The data that are received by an expert, become useful information if they help to resolve issues put to a forensic expert. A special object of forensic examination (information field) is the totality of homogeneous properties of the subsumer. The direct object of an expert research is a part of a special object that is subjected to research during a specific expert study. The subject of forensic examination kind is evidentiary and orienting information that can be obtained at the contemporary stage of forensic examination development by researching a special object that is a part of the object properties offorensic examination kind. The subject ofparticular forensic examination is evidentiary or orienting information, which must be obtained by an investigation of a direct object that is the part of the properties of the particular material carrier submitted for examination.

scholarly journals THE PROBLEMS OF THE REFORM OF CRIMINAL JUSTICE

2019 ◽  
pp. 207-213 ◽  
Author(s):  
V. M. Tertyshnyk
Keyword(s):  
Criminal Prosecution ◽  
Conceptual System ◽  
Legal Assistance ◽  
Criminal Proceedings ◽  
Applicable Law ◽  
Procedural Law ◽  
Criminal Procedure Law ◽  
Third Person ◽  
Definition Of ◽  
The Right

The article covers the problem of optimization of regulatory and criminal proceedings in terms of the implementation of the principle of the adversarial parties. Analysis of the positive stories and shortcomings of the current CPC of Ukraine. Disclosed the problem to run the investigation and legal assistance and protection. The submitted proposals concerning improvement of the norms of the criminal procedure law. The principle of admissibility of intervention in human rights and the application of coercive measures in establishing the objective truths only in case of extreme urgency has become a basic principle of the criminal process. According to the applicable law of Ukraine “on advocacy and its activities” (p. 7 article 20) advocate in their activities has the right to “remove things, documents, copy them”. That is, it can only go about getting published, and not about “deleting”, without the consent of the holder of the document or thing. “Extract” is commonly understood as forced extraction, and side protection, by definition, its function may not to have establishing the authority. Finally, to protect enough of getting copies of documents, not delete documents, especially the absence of a duty to Act laid them in the proper way to store and share the Court. At first glance, insignificant legislative inaccuracy may only have character problem definitions, but in reality these “trivia” smear Vaseline give opportunity not so much for a parallel legal investigation, how, in practice, for the active counteraction to the inquest by hiding or destroying evidence. In today’s criminal counsel may participate in criminal proceedings in three different status: 1) as a defender of the suspect, accused, convicted, justified; 2) as a representative of the victim of physical persons; a legal entity that is affected civil plaintiff, civil respondent; third person; 3) as legal assistant to the witness. Prescription of the Constitution that exceptionally lawyer carries out representation of another person in court, as well as protection from criminal prosecution does not mean establishing the monopoly of lawyers to perform the function of protection. Wise will introduce a new conceptual system of legal assistance and protection: 1. Protection of the suspect can make as lawyers and other professionals in the field of law, for which there is no reason for removal. 2. Defendant and defendant in court should carry only a lawyer who offered to appoint judicial agent. 3. Legal assistance to victims, civil plaintiffs, civil and for third parties (art. 63 of the CPC of Ukraine) can make as lawyers and other specialists in the field of law, which can act in the procedural status of the representatives of the respective parties. 4. Legal assistance to witnesses, applicants to other participants of the process can make as lawyers and other professionals in the field of law. Implementation of the constitutional principles of legal assistance and protection in criminal proceedings requires a clear definition of the procedural status of the Defender, therepresentative and law agent, development and adoption of the law on the independent Institute the investigation, which has become an independent institution of the criminal procedural law.

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.

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 THE CONCEPT OF EFFICIENCY OF DETENTION OF A PERSON IN CRIMINAL PROCEEDINGS

2021 ◽  
Vol 76 (3) ◽  
pp. 158-168
Author(s):  
Myroslav Pototskyi ◽  
Keyword(s):  
Information Support ◽  
Clear Understanding ◽  
Criminal Proceedings ◽  
Short Term ◽  
Law Enforcement Agencies ◽  
Procedural Law ◽  
Starting Point ◽  
Definition Of ◽  
The Individual ◽  
The Right

The article focuses on the study of the concept of the effectiveness of detention of a person in criminal proceedings. It is emphasized that criminal procedural detention is an important tool of the criminal procedural activity of the prosecution. Not enough attention has been paid to the definition of the effectiveness of criminal procedural detention in the scientific literature. When posing the problem statement, it is noted that the study of the concept of the effectiveness of detention is the starting point in the study of ways to improve the effectiveness of such coercive measures. The relevance of the study of the concept of the effectiveness of criminal procedural detention is also enhanced by the fact that achieving a clear understanding of the effectiveness of detention can serve as a reliable basis for developing and improving the effectiveness of criminal procedural detention. The effectiveness of criminal procedural detention takes into account the balance of interests of the state and the individual, the balance of legal capabilities of law enforcement agencies and effective mechanisms for protection against arbitrariness. There are three signs of the effectiveness of criminal procedural detention: prompt achievement of the goal; legality on the basis of a qualitative law; short-term restriction of the right to liberty. During the presentation of the main material the procedural characteristic of each of them is given. We do not consider the selected criteria of efficiency of criminal procedural detention to be exclusive. The effectiveness of any criminal procedure institution is not a static phenomenon. It is dynamic and depends on the specific circumstances of the criminal proceedings. Based on the study of the above features, the concept of the effectiveness of criminal procedural detention is formulated. The effectiveness of criminal procedural detention is the ability to detain in a legal manner, regulated by a quality criminal procedural law, by short-term restriction of the right to freedom to promptly achieve the goal of ensuring proper conduct of the suspect and the information support of the initial stage of pre-trial criminal proceedings.

Sign in / Sign up

Export Citation Format

Share Document