scholarly journals Arrest of Property in Bankruptcy Cases

2019 ◽  
pp. 93-102
Author(s):  
Oleksandr Biryukov
Keyword(s):  
Legal Status ◽  
Bankruptcy Law ◽  
Security Measures ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Legal Remedy ◽  
Procedural Code ◽  
Court Proceedings ◽  
The Right ◽  
Court Practice

This article focuses on the analysis of certain aspects of the application of security measures in liquidation procedure governed by Bankruptcy Law. Arrest of property (according to Ukrainian legislation terminology — a seizure of property) as a temporary tool of enforcing future court decisions is a fairly popular legal tool to protect the parties’ property interests in money disputes. In modern court practice application of this legal remedy creates some difficulties, particularly, in bankruptcy cases. When administering these cases, the judges sometimes consider petitions regarding imposing arrests of property or freeing restrictions over the property imposed in civil, administrative and criminal cases. In such situations, there is a need to answer a question whether the commercial court in a bankruptcy case has a power to free arrests or other restrictions on using the property imposed by other courts. Current legislation i.e. both procedural law and bankruptcy law does not contain clear rules on how the judges should aсt in such situations. Different approaches to the application of bankruptcy proceedings regarding arrest of property influence the court practice in general. Some economic courts establish that the release of the debtor’s assets from bans and arrests during the bankruptcy proceeding is totally in accordance with the current law, other courts rule that commercial procedural code does not allow to free property from arrest imposed, for example, in civil cases as this arrest is done by civil procedural law. Arrests attached in the criminal proceedings have different nature and purpose. It is known that in most cases in the criminal law property arrest serves as means to ensure possible future confiscation of property that may have been obtained in an illegal way. During such court proceedings a special review is conducted in order to discover whether property in acquired legally. Therefore, in order to cancel arrest of the property the procedure should be exercised in accordance with the rules of the criminal proceedings. However, while imposing new arrests of property in criminal proceedings it should be taken into account that the legal status of a person who was declared bankrupt has changed, i.e. he is deprived of the right to dispose the property which becomes a subject for sale at public tenders. The main conclusion of this article is that existence of certain different approaches to application of security measures in different court proceedings can be explained by the fact that during the development of procedural laws the nature of insolvency relations and the peculiarities of the legal mechanisms used in bankruptcy cases were not fully taken into account.

scholarly journals Methods of Physical Evidence Verification in the Criminal Proceedings of Ukraine

2019 ◽  
Vol 85 (2) ◽  
pp. 105-111
Author(s):  
B. V. Shabarovskyi
Keyword(s):  
Criminal Proceedings ◽  
Physical Evidence ◽  
Procedural Code ◽  
Technological Processing ◽  
Court Proceedings ◽  
First Time ◽  
Court Practice

Taking into account the fact that evidence verification remains a poorly researched criminal and procedural phenomenon, and physical evidence is an important mean of establishing the circumstances of criminal proceedings, the purpose of the study was to determine and characterize the methods of verifying physical evidence in the criminal proceedings of Ukraine. To achieve this purpose, the author has set the following tasks: to analyze the provisions of the Criminal Procedural Code of Ukraine in order to identify the methods of verifying physical evidence; to determine the peculiarities of physical evidence verification. As a result of the study, the author, for the first time, has provided all the means of verifying physical evidence available to the subjects of evidence in Ukraine. The Criminal Procedural Code of Ukraine adopted on April 13, 2012, as well as the court practice have been analyzed. The author has determined the following methods of physical evidence verification in the criminal proceedings of Ukraine: comparison of physical evidence with the minutes of examination of physical evidence and its annexes (photo, video materials); verification of compliance with the provisions of the Criminal Procedural Code of Ukraine and the Resolution of the Cabinet of Ministers of Ukraine “On the Implementation of Certain Provisions of the Criminal Procedural Code of Ukraine” dated from November 19, 2012 No. 1104, which approved the Procedure for the storage of physical evidence by the prosecution, their implementation, technological processing, destruction, implementation of costs related to their storage and transfer, the safekeeping of temporarily confiscated property during criminal proceedings concerning its storage, with regard to the storage of physical evidence; examination of physical evidence by the court, familiarization with the physical evidence of the participants in the court proceedings and, if necessary, other participants in the criminal proceedings, focusing the attention of the court on those or other circumstances related to the item and its examination, which is carried out by the persons, who are subjects for the examination of physical evidence; putting questions about physical evidence to witnesses, experts, specialists who inspected the item and responding these questions; comparison of physical evidence with other evidence in order to ascertain their admissibility and credibility.

scholarly journals Certain Aspects of Arrest of Property in Light of the Case Law of the Appeal Chamber of the High Anti-Corruption Court

2021 ◽  
Vol 7 ◽  
pp. 14-19
Author(s):  
Denys Bykov
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
General Rule ◽  
Case Law ◽  
Appeal Chamber ◽  
Material Objects ◽  
Criminal Proceedings ◽  
Suggested Approach ◽  
Procedural Law ◽  
Procedural Code

The article explores the problems of a temporary seizure and arrest of property in the course of pre-trial investigation in light of the case law of the Appellate Chamber of the High Anti-Corruption Court and the European Court of Human Rights. It is outlined that investigators face particular problems with differentiation of material objects that are subject to seizure upon the decision of an investigator or a prosecutor and may be used for the purposes of the criminal proceedings and those which fall into the category of temporarily seized property, and the legality of their seizure is subject to control by an investigating judge. Investigating judges face the same difficulties which result in decisions on arrest imposed on biological, biometric traces, cigarette butts and other material objects that are not subject to arrest for they do not belong to the category of property. The author analyses whether documents, personal notes, and other items of the kind may be regarded as property and the criteria to categorize them as such. It is concluded that if these items are used as evidence in the criminal proceedings but have no characteristics of property, are not objects of civil rights, have no historical, artistic, scientific, literary, economic, or any other significant value in general or for a certain individual, they are not subject to judicial control and arrest and should be attached to the criminal proceedings in accordance with the rules prescribed by the Criminal Procedural Code of Ukraine.The author pays particular attention to the unfortunate wording of Part 7 of Article 236 of the Criminal Procedural Code of Ukraine, which prescribes that seized objects and documents not included in the list of items to be found in the course of a search, contained in the decision of the investigating judge onpermission to conduct a search, are considered temporarily seized property. This legal norm makes the issue of whether certain items belong to the category of property dependent upon their inclusion in thelist or absence in the list, contained in the decision of the investigating judge. Such an approach contradicts the basic principles of the property law. Therefore, the norm should be excluded from Part 7 of Article 236 of the Code. The author also suggests to change the wording of Part 7 of Article 237 of the Code and to clearly outline that documents, as a general rule, are seized and items that fall into the category of property are temporarily seized.The suggested approach will lead to harmonization of the norms of criminal procedural law with those of civil law, setting clear and understandable criteria for defining the legal status of items seized or temporarily seized in the course of examination or search and fulfilling the tasks of effective and impartial pre-trial investigation.

scholarly journals APPROPRIATE PROCEDURE FOR OBTAINING EVIDENCE IN THE CRIMINAL PROCESS OF UKRAINE THROUGH THE PRISM OF COURT DECISIONS

2021 ◽  
Vol 13 (3) ◽  
pp. 134-140
Author(s):  
Anna-Mariia Anheleniuk ◽  
Keyword(s):  
Legal Status ◽  
Correct Choice ◽  
Court Decisions ◽  
Criminal Proceedings ◽  
Criminal Process ◽  
Systematic Analysis ◽  
Voluntary Consent ◽  
Procedural Code ◽  
The Right ◽  
Evaluation Of Evidence

Recently in Ukraine, the methods of obtaining evidence during the pre-trial investigation have to to be improved, both in terms of their normative consolidation and the practice of application. Ways to improve criminal procedural activity should be planned taking into consideration the analysis of judicial practice, in particular the analysis of the evaluation of evidence in court for their relevance and admissibility. The purpose of the work is to improve the receipt of evidence in the criminal process of Ukraine in an appropriate manner, which will be a guarantee of their admissibility in court. The following methods were used: comparative – legal – to compare normative – legal regulations and court decisions relating to the recognition of evidence as appropriate and admissible in a particular criminal proceeding; formal-legal – to determine the decisions of the court concerning the evaluation of evidence in criminal proceedings; methods of logical and systematic analysis – to develop an effective proposal to improve the methods of obtaining evidence during the pre-trial investigation in Ukraine. Results. It is proposed to apply rapid tests to determine the drug substance during the detention of a person. In addition, it is proposed to ammend to Part 1 of Art. 233 of the Criminal Procedural Code of Ukraine, which regulates the right to break into the house or other property of a person with the voluntary consent of the person who owns them. It is proposed to consolidate the legal status of such a consent in order to avoid ambiguity of interpretation of the concept of voluntariness in court, in particular voluntary consent should be written in the form of a statement by the person himself with the obligatory indication of the relevant object of penetration. Conclusions. The appropriate method of obtaining evidence involves compliance with the procedural order of investigative (interrogative) or procedural actions. An indication of the proper way to obtain evidence is the correct choice of a specific action or a set of actions necessary for a quality investigation of criminal proceedings.

scholarly journals Electronic segment in criminal procedural legislation of Armenia

2020 ◽  
Vol 1 (1) ◽  
pp. 205-210
Author(s):  
Inha Kalancha
Keyword(s):  
Electronic Communication ◽  
Video Recording ◽  
Reasonable Assumption ◽  
Electronic Format ◽  
Criminal Proceedings ◽  
Person Identification ◽  
Procedural Law ◽  
Procedural Code ◽  
Electronic Recording ◽  
The Right

The article deals with the study of electronic segment in the criminal procedural law in Armenia. It proves the use of specialized electronic tools and information systems within the framework of criminal process in Armenia. Among them: a special computer system for recording, archiving data and protecting the system; technical means for controlling and intercepting telephone and other types of communications. The author identifies a number of non-specialized electronic tools applied in criminal proceedings, in particular: audio-visual, video recording, electronic or telegraph technical means; electronic media; means of communication; computer; phone; technical means, etc. The paper also presents the requirements for electronic recording of individual investigative ac-tions carried out by means of photographic work, audio-recording, video-recording, filming. Criminal-Procedural Code of Armenia separately specifies the requirements for electronic recording of interrogation, examination, exhumation, witnessing, person identification by a photograph, submitting a corpse for identi-fication, search, mail monitoring, telegrams and other means of communication, inspection and withdrawal of correspondence, wiretapping of telephone conversations, investigatory experiment, obtaining samples for carrying out expert research. The study focuses on the right of the suspect immediately after his / her deten-tion to notify of his / her whereabouts and the reasons for his / her detention using phone or other means of communication. However, it is possible to delay the effectuation of this right for up to 12 hours, if there is a reasonable assumption that immediate exercise of this right may obstruct crime prevention or will result in destroying or damaging the evidence. Moreover, petition for permission to apply measures of procedural coercion may be sent to the court and supervising prosecutor in electronic format. Procedural actions within criminal proceedings in Armenia are recorded in electronic format through the prism of the procedural action protocol. The hearing is accompanied by electronic recording of its progress and results. Electronic communication is also employed in terms of international cooperation.

scholarly journals Executive Criminal Law / Izvršno krivično pravo

2014 ◽  
Vol 4 (4) ◽  
pp. 132
Author(s):  
Marina Simović ◽  
Dragan Jovašević
Keyword(s):  
Criminal Law ◽  
Legal Theory ◽  
Criminal Proceedings ◽  
Criminal Sanctions ◽  
The Third ◽  
Procedural Law ◽  
Legal Nature ◽  
Penal Law ◽  
Court Proceedings ◽  
The Right

Executive criminal law or the right of execution of criminal sanctions is the third constituent part of the criminal proceedings which logically follows after the substantive criminal law and formal criminal procedural law. Only the proceedings of execution of types and measures of criminal sanctions prescribed by the law and pronounced in court proceedings give the purpose to its prescription, and that is suppression and prevention of criminality. Since this is a new branch of positive criminal (penal) law, the authors, on the basis of domestic and foreign legal theory, have analyzedat this paper the concept, subject, title, function, sources, characteristics, legal nature and location of this branch of criminal law.

scholarly journals The Issue of Necessity of Determining the Category of Advenal Participants of the Russian Criminal Proceedings: Criminal Procedural Law and Criminalistic Aspects

Lex Russica ◽  
2019 ◽  
pp. 66-73
Author(s):  
I. G. Smirnova ◽  
E. I. Foigel
Keyword(s):  
Russian Federation ◽  
Personal Characteristics ◽  
Russian Population ◽  
National Language ◽  
Criminal Proceedings ◽  
Naturalized Citizens ◽  
Procedural Law ◽  
The Russian Federation ◽  
Court Proceedings ◽  
The Right

A multinational character of our state (currently more than 204 nationalities live on the territory of the Russian Federation), a considerable representation of migrants and naturalized foreign citizens among the Russian population, a large number of foreign citizens who are in Russia illegally adversely affect criminality in the country and entail difficulties for the investigation of relevant criminal cases. At the moment, we can argue that a new element has emerged in the structure of the Russian population, namely: naturalized citizens of Russia and foreign citizens who differ in their ethnicity from the titular ethnic group and the peoples of the Russian Federation having national territorial formations on the basis of their national language, culture, traditions, mentality and values. The authors of the article believe that such persons form an independent group of advenals. Difficulties with the implementation of such principles as respect for the honor and dignity of such individuals, language of court proceedings, the right to freedom of religion considered in the paper result in drawing a conclusion about the necessity of development of methods of investigation of advenal crimes. They include a set of scientific premises and practical recommendations developed on the basis of such premises used to organize and implement identification, investigation, disclosure and prevention of crimes committed by advenal persons against advenal persons or crimes perceived by advenal persons whose personal characteristics, as reflected in their activities, determine the course of conduct of investigators collecting, examining and evaluating evidence in a case.

scholarly journals USE OF SPECIAL KNOWLEDGE DURING THE EXAMINATION OF THE SCENE OF A CRIME IN THE ORDER OF PART 3 ART. 214 OF THE CRIMINAL PROCEDURE CODE OF UKRAINE

2021 ◽  
Vol 74 (1) ◽  
pp. 153-160
Author(s):  
Andrіy Shulha ◽  
◽  
Tetyana Khailova ◽  
Keyword(s):  
Legal Status ◽  
Criminal Liability ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Knowledge And Skills ◽  
Procedural Law ◽  
Procedure Code ◽  
Criminal Procedure Law ◽  
Special Knowledge ◽  
The Law

The article deals with the problem of specialist’s participation in the scene examination, which is carried out before entering information into the Unified Register of the pre-trial investigations. The essence of the problem is that the current criminal procedural law of Ukraine recognizes the specialist’s participation only in the pre-trial investigation, the litigation and the proceedings in the case of the commission of an unlawful act under the law of Ukraine on criminal liability. Part 1 of Article 71 of the Criminal Procedure Code of Ukraine states that a specialist in criminal proceedings is a person who has special knowledge and skills and can provide advice and conclusions during the pre-trial investigation and trial on issues that require appropriate special knowledge and skills. In other cases, the specialist has no procedural status. In addition, Part 1 of Article 237 of the CPC of Ukraine «Examination» states that the examination is conducted to identify and record information on the circumstances of the offense commitment. It is an act provided by the law of Ukraine on criminal liability. However, there are the cases in the investigation, when a report is received, for example, about a person's death, other events with formal signs of the offense, which must first be checked for signs of a crime, and only then the act can be considered as offense. In this case, a specialist takes part in the scene examination. However, the current criminal procedure law in accordance with Part 1, Article 71 of the Criminal Procedure Code of Ukraine determines the legal status of a specialist only as the participant in criminal proceedings. The paragraph 10, part 1 of Article 3 of the Criminal Procedure Code of Ukraine defines the criminal proceedings as pre-trial investigation and court proceedings or procedural actions in the case of the commission of an unlawful act. Therefore, when the inspection of the scene is based on the uncertain status of the event (there is no clear information that the event contains signs of an offense), the specialist’s participation is not regulated by law. The authors propose to consider the specialists as «experienced persons» in cases mentioned above and to include their advices to the protocol of the scene examination, as the advices of other scene examination participants.

scholarly journals HISTORICAL DEVELOPMENT STAGES OF CRIMINAL PROCEDURE IN ANCIENT ROME

2016 ◽  
pp. 0-0
Author(s):  
Нодиржон Хайриев ◽  
Nodirzhon Khayriev
Keyword(s):  
Historical Development ◽  
Legal Status ◽  
Criminal Procedure ◽  
Legal Aspects ◽  
Ancient Rome ◽  
Development Stages ◽  
Procedural Law ◽  
History Of ◽  
Court Proceedings ◽  
Evaluation Of Evidence

This article studies historical-legal aspects of such issues as organization and development of criminal procedure in Ancient Rome, types of criminal procedure in this state, peculiarities of criminal procedure organization on the basis of the Laws of the twelve tables, legal status of officials, reviewing cases, as well as issues of guaranteeing fairness of the courts, specific to the ancient roman legal and institutional framework. Based on the historical development of the state and law, the author presents a different classification of the development stages of Ancient Rome and history of the Roman (Civil) Law. The author pays special attention to studying procedural law aspects, in particular, to the issues of particular characteristics of criminal procedure and judicial examination, evidence law, procedure of instituting court proceedings, hearings of cases in courts and adoption of relevant court decisions. The author conducts thorough analysis of the main stages of a criminal process, which, as the author assumes, consist of two parts — bringing of a suit, evaluation of evidence and documents, checking the accuser’s requirements, as well as reviewing claims under the lawsuit and submitted evidence, judicial examination.

scholarly journals ILLEGAL AND UNCONTROLLED AMBER'S EXTRACTION AND MEASURES TO COMBAT IT

2020 ◽  
pp. 62-70
Author(s):  
O. Kuchynska ◽  
V. Nesterovskyi ◽  
O. Starenkyi ◽  
Y. Tsyganyuk
Keyword(s):  
Prevention And Control ◽  
Mineral Resources ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
Procedural Code ◽  
And Control ◽  
Practical Recommendations

SignificantincreaseinthedemandforamberintheworldgaverisetoamultitudeofcomplexproblemsinUkraine, related not only togeology and mineral resources use, but also economy, legislation and other aspects of life.The prevention and control of crimes related to illegal amber's extraction are provided through various activities and methods. One of them is the implementation of the laws of Art. 240 of the Criminal Code of Ukraine through criminal prosecution. It is implemented by applying rules of criminal procedural law: individuals' actions qualification during adding data to the Unified Register of pre-trial investigations, enforcement of criminal proceedings, evidence providing in cases involving illegal amber's extraction, etc. Thus, as a consequence, there is a necessity to conduct theoretical and legal analysis, to develop practical recommendations to ensure the effective application of combatting measures against illegal amber's extraction during the implementation of evidence in criminal proceedings. In particular, the authors emphasize among these measures specific unspoken investigative actions, as they can provide appropriate, valid and credible evidence against illegal extraction of amber; individuals' actions qualification with the availability of actual grounds, which indicate commiting of moderate gravity crime, provided for by part 2, part 3 of Article 240 of the Criminal Code of Ukraine and Part 4 of Article 240 of the Criminal Code of Ukraine is defined as unjustified. In order to avoid issues mentioned above, it has been proposed to assume the possibility of conducting unspoken investigative activities in the current Criminal Procedural Code of Ukraine not only in relation to grave crimes or felonies, but also in relation to crimes of moderate gravity.

scholarly journals SYNCHRONIZATION OF PROCEDURAL AND FINANCIAL (BANKING) FUSE OF THE IMMUNITY OF PROPERTY RIGHTS

2021 ◽  
Vol 2 (37) ◽  
pp. 503-509
Author(s):  
V. Kantsir ◽  
V. Kushpit ◽  
A. Palyukh ◽  
I. Tsylyuryk ◽  
I. Kantsir
Keyword(s):  
Property Rights ◽  
Social Reproduction ◽  
Legal Status ◽  
Legal Regulation ◽  
Jel Classification ◽  
Criminal Proceedings ◽  
Legal Context ◽  
The Status ◽  
The Right ◽  
Judicial Protection

Abstract. The article is devoted to analysis of the effectiveness of the main procedural legal and financial (banking) mechanisms designed to ensure the protection of property rights’ immunity. The legally regulated procedures of such protection are analyzed on platforms — both procedural and legal as well as financial and economic. There is no doubt that only in a state where the immunity of property is declared and guaranteed to the person can be provided the development of economic, intellectual, socially oriented activities. The effect of the principle of immunity of property rights is not absolute, but its restrictions are possible only on the grounds and in the manner prescribed by law. The topicality of the inviolability of property rights is due to the role of law as a platform for citizens’ property independence and their participation in the processes of social reproduction. The guarantee of property independence is the right of ownership of property and non-property rights, which is realized by giving a person the right to freely, unimpededly, and fully exercise the rights of the owner of personal property. The compliance of the inviolability of property rights during criminal proceedings is not properly ensured in the current CPC (The Criminal Procedure Code) of Ukraine; in particular, the movement of confiscated property is not regulated, which questions the novelty of inviolability. To improve the procedure for the protection of property rights, this is necessary to regulate at the legislative level the mechanism of protection and restoration of property rights of persons victimized by criminal offenses. The etymology of «inviolability» guarantees by law the protection of the status of the person from any encroachment. Inviolability in the economic and legal context is mainly understood as a person’s legal status, which is an unalterable guarantee against unauthorized restrictions by the state institutions — law enforcement, financial, court, and individuals and legal entities. An attempt is made to accumulate most of the latest achievements (both legislative, theoretically investigative and applied) on the issues of legal regulation of the studied financial and legal relations, based on which scientific views are substantiated, and proposals are developed to improve regulations in this area. The main vectors of economic and legal mechanisms for the protection of the inviolability of property rights, which would correlate with generally accepted European and world standards, have been identified. Keywords: the inviolability of property rights, property rights, principles of proceedings, judicial protection, seizure of property, financial guarantee, financial risks. JEL Classification G28; К14 Formulas: 0; fig.: 0; tabl.: 0; bibl.: 12.

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