THE JUSTIFICATION OF CONSTITUTIONAL PRINCIPLES

This paper deals with the study of the justification of constitutional principles as a fundamental category of constitutional law. Legal principles are an important conception in the legal doctrine and the legal practice of democratic countries. Ukrainian legal doctrine studies legal principles in the two paradigms, namely fundamental principles and general principles. However, this approach does not result in the understanding of principles in constitutional law. That is why principles in constitutional law are an actual topic. The article aims to examine the fundamental concepts to find the justifications of constitutional principles. Hence, the author pays attention to the content of constitutional law and constitutionalism as principles-based categories. First, constitutional law is a fundamental part of the law in the legal system, and all the parts of the law are dependent on constitutional law. Second, the universal constitutional principles are the same for all legal systems. After all, constitutionalism doctrine consists of the limitation of power, and nowadays, this is expressed through the constitution and different constitution principles. The author uses comparative legal, phenomenological, and system-structural analysis as a valid methodology for this research. Finally, the research investigation contains the following conclusions that enable the author to prove the motivation of the science paper to study the outlined topic. First, constitutional law is the basis of the legal system, which embodies constitutional principles; constitutional law has the same effect on public law and private law. Second, constitutionalism is a source for finding constitutional principles. Third, the system of constitutional principles includes the following characteristics: universality and specificity. The system of constitutional principles is open and depends on the interpretation of constitutions. The paper aims to contribute to the growing research highlighting the current issues of constitutional principles. Keywords: principles, constitutional principles, constitutional law, constitutionalism, the system of constitutional principles.

RESTRICTIONS ON COPYRIGHT IN UKRAINE AND THE UNITED STATES: A COMPARATIVE LEGAL ASPECT

The article compares the American copyright system (from its inception, borrowing the basics of the English system to the establishment of the principle of "fair use") and the Ukrainian system, which provides a specific list of cases allowed as a restriction of copyright (enumerated system) by establishing in national legal acts of the three-stage test provided by the Berne Convention. The article examines not only the legislation of Ukraine and the United States in this area, such as: the Federal Copyright Act of 1790, the second Federal Copyright Act of 1909, the Copyright Act of 1976, the Civil Code of Ukraine, the Law of Ukraine "On Copyright law and related rights" but also the case law of the United States, which is a key element in regulating disputes in the area under discussion. The author analyzes a number of cases through the prism of changing approaches in the US system of property rights restrictions, namely Philpot v. Media Research Center Inc. No. 1: 17-cv-822 dated January 8, 2018; Peteski Productions, Inc. v. Leah Rothman No. 5: 17-CV-00122 dated August 30, 2017; Rosen v. eBay, Inc., No. 2: 13-cv-06801-MWF-E of 16 January 2015 and Corbello v. DeVito No. 2: 08-cv-00867-RCJ-PAL June 14, 2017. As a result of the research, the author determines that the national legislation establishes an exhaustive list of works that are its objects, at the same time, the ways of using the work depend on the type of particular work. Therefore, an exhaustive list of all possible ways to use the works is not provided. U.S. law provides for an exhaustive list of copyrighted works and an exhaustive list of ways to use such works. And the doctrine of "fair use" in the United States provides that in determining whether the use of work in any particular case is fair, there are at least 4 factors to consider. Keywords: the principle of "enumerated system", the system of "numerus clausus", the concept of "exceptions and limitations", US copyright law, the doctrine of fair use, the Agreement on guidelines for copying in non-profit educational institutions, free use of works, three-stage test.

SCIENCE OF INTELLECTUAL PROPERTY LAW: CONCEPTS, FEATURES AND DIRECTIONS FOR THE DEVELOPMENT

The article explores the concepts, features and directions for the development of intellectual property science at the present stage. The basic scientific schools of intellectual property law are analysed, the specifics of their formation and genesis are considered. The article emphasizes that the science of intellectual property law is a system of knowledge and theoretical ideas about the laws of legal regulation of relations in the field of protection of intellectual and creative activities, interpretation of legal norms and the results of analysis and generalization of their application. As intellectual property right, the science of intellectual property law is a relatively young field in the legal system; however, it already has a long history of development, well-known representatives and scientific schools, including those pertaining to Taras Shevchenko National University of Kyiv. The development of intellectual property science in Ukraine is based on several scientific schools in Kyiv, Odessa, Lviv and Kharkiv, which are represented by powerful research centres and educational institutions. The Kyiv School of Intellectual Property is formed by two research centres: the Department of Intellectual Property and Information Law of Taras Shevchenko National University of Kyiv and the Research Institute of Intellectual Property of the National Academy of Sciences of Ukraine. The origin and development of the science of intellectual property law in Taras Shevchenko National University of Kyiv is associated with the figure of the famous domestic scientist O.A. Hills. Since 2013, the Department of Intellectual Property and Information Law has been operating at the Faculty of Law of Taras Shevchenko National University of Kyiv. At the current stage, the Department of Intellectual Property and Information Law jointly with the Scientific and Educational Centre for Intellectual Property of Taras Shevchenko National University of Kyiv make a powerful centre of the development of intellectual property law science in Ukraine. Keywords: intellectual property, science, methodology, legal category, scientific school, scientist.

THE INSTITUTE OF COUNSELOR IN THE DOMESTIC SYSTEM OF PUBLIC SERVICE: THE STATE AND PROBLEMS OF LEGAL FIXING

The article is devoted to understanding the specifics of the social mission and the state of legal consolidation of the administrative legal personality of councilors in public authorities and local governments. It is emphasized that the problem of selection of candidates for the positions of advisers to the heads of public authorities is the subject of lively discussion, as a rather controversial collective image of the adviser has formed in the public consciousness. This is due to his belonging to officials who hold a particularly responsible position and perform official duties in the presence of a high level of corruption risks. It is established that the commitment of candidates for advisers is carried out in the context of providing scientific support for the formation and implementation of public policy, implementation of best management practices, finding optimal management and legal algorithms for resolving conflicts, improving the quality of management decisions. The urgent need to improve the domestic service legislation by adopting a special law on patronage service in order to unify the legal framework for the organization and operation of patronage services. First of all, it is necessary to normatively enshrine the right of specific public authorities to establish a patronage service, to provide an exhaustive list of patronage service positions for each of these bodies, to provide the right of equal access to patronage service, to introduce a single mechanism for selection and appointment of patronage service employees. professional achievements and personal business qualities, to differentiate their powers depending on the specifics of public authority of individual officials, which create patronage services. There is also a need to specify the functions, main tasks and powers of advisers to heads of public authorities, articulation of basic qualification requirements for candidates for advisers, clear definition of legal bases of interaction of advisers with career civil servants and communication with civil society institutions, articulation of moral and ethical imperatives. official activity of advisers. Keywords: public service, patronage service, adviser in state authorities and local self-government bodies, staff adviser, advisor on a voluntary basis.

MEDICAL WORKERS' LIABILITY FOR CRIMES IN THE FIELD OF TRAFFICKING OF NARCOTIC PRODUCTS UNDER ARTICLE 320 OF THE CRIMINAL CODE OF UKRAINE

The article considers the peculiarities of criminal liability of employees of health care institutions for violation of the provisions of Art. 320 of the Criminal Code of Ukraine, which consists of two parts, which differ in the ways (forms) of committing criminal offenses and limits of liability. The methodological basis of the study includes logical-semantic method, by which the types of methods (forms) of committing criminal offenses under Art. 320 of the Criminal Code of Ukraine are studied; a systematic approach, on the basis of which the author analyses the sequence of actions of employees of investigative bodies in the investigation of crimes on the grounds of criminal activity provided for in the provisions of this article. It is established that Art. 320 of the Criminal Code of Ukraine consists of two parts and provides for a wide range of criminal offenses, in particular the cultivation of sleeping poppy or hemp; violation of the rules of production, manufacture, storage, accounting, release, distribution, trade, transportation, shipment or use of narcotic drugs, psychotropic substances, their analogues or precursors intended for the production or manufacture of these drugs or substances; theft, misappropriation, extortion of narcotic drugs, psychotropic substances, their analogues or precursors, or their acquisition by fraud or abuse of office by an official, etc. It is shown that the disposition of Art. 320 of the Criminal Code of Ukraine has a blanket nature, which requires specification of its provisions in other regulations, including orders, instructions, rules. It is emphasized that employees of medical institutions and health care institutions must clearly know the content of the resolution of the Cabinet of Ministers № 770 "On approval of the list of narcotic drugs, psychotropic substances and precursors" from 06.06.2000, the order of the Ministry of Health № 188 "On approval of tables of small, large and especially large amounts of narcotic drugs, psychotropic substances and precursors that are in illicit traffic" from 01.08.2000, which will significantly help them to avoid offenses related to drug trafficking. Special attention should by paid to compliance with the rules of storage, transfer, accounting, release, distribution, trade, transportation, as well as the introduction of drug logs. The article also shows the sequence of actions of employees of investigative bodies during crime investigation on grounds of the criminal activity provided by Art. 320 of the Criminal Code of Ukraine.

COURT SETTLEMENT AND OUT-OF-COURT SETTLEMENT OF DISPUTES, ARISING FROM THE RELATIONS OF HARM BY MEDICAL SPECIALIST

The article analyzes various forms of protection of the rights of individuals to compensation for harm caused by a medical specialist, which are used in different countries around the world. In particular, special attention is paid to those approaches to pre-trial and out-of-court dispute resolution arising from patient harm relationships used in the United States. Among the most common ways of resolving such disputes are seeking help from a separate body or unit of a medical institution (risk management), mediation and negotiations in medical disputes, pre-trial inspections ("screening panels"), which allow to find a more compromise way to protect individual rights, affected by the actions of medical specialist. Accordingly, the first part of the article carries out a terminological analysis of the category "relationship of harm to a health worker" and the search for the closest term ("medical malpractice"), which allows for research in English-language scientific sources. The second part of the article is devoted to the analysis and generalization of the methods used in the practice of other countries to compensate for damage caused by a medical specialist (medical malpractice). The last part of the article analyzes the Ukrainian legislation and practice of national courts, which showed that in cases of compensation for damage caused by a medical specialist, there are no common approaches and single law approaches. In particular, attention is paid to the procedure for assessing the quality of medical services provided in 2016 by clinical expert commissions of the Ministry of Health of Ukraine. The study provided an opportunity to justify in the conclusions the need and feasibility of introducing additional out-of-court methods of resolving disputes arising from the relationship of harm to medical workers.

THE "HAGUE" MODIFICATION OF THE INTERNATIONAL CRIME CONCEPT

The article analyses the development of the concept of international crime in the "Hague" period, which covers the last decades of the last century and is closely related to the establishment of ad hoc international tribunals in the former Yugoslavia and Rwanda. The article reveals the legal grounds for the establishment of these tribunals, the features of their activities, jurisdiction and principles of responsibility of persons who committed crimes in the former Yugoslavia and Rwanda. The establishment of international justice bodies by UN Security Council decisions has provoked a number of debates about their legitimacy, but it is undeniable that the activities of ad hoc international tribunals have contributed to the initiation of a new stage in the development of international criminal justice, further development of international criminal law, in particular in the development of the Rome Statute and the Rules of Procedure and Evidence of the International Criminal Court. All types of tribunal jurisdictions are disclosed, but special attention is paid to the substantive and personal jurisdictions of tribunals, which became the basis for the theoretical justification of the "Hague" modification of international crime, as well as the practical implementation of this concept in tribunal decisions. It is shown that the categories of international crimes that constitute the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia (serious violations of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity) and the categories of crimes defined in the Statute of the International Tribunal for Rwanda against humanity and violations of the Geneva Conventions) in the documents of the tribunals have been developed in comparison with the Nuremberg and post-Nuremberg periods. ~ 74 ~ ВІСНИК Київського національного університету імені Тараса Шевченка ISSN 1728-3817 It is shown that the substantive jurisdiction of the ICTY and the ICC does not coincide with the provisions of the Nuremberg and Tokyo tribunals. The differences relate to the list of categories of crimes; parallel jurisdiction of international ad hoc tribunals and national courts; extending the competence of ad hoc tribunals to cases of crimes committed both during wars between states and during internal armed conflict, etc. The content of the categories of crimes, their composition, the subjects of responsibility have been clarified. In particular, the characteristic features of the crime of genocide and crimes against humanity are identified; the conditions, elements and subjects for the recognition of their qualifications are indicated. The author pays attention to the principles of personal jurisdiction, shows that in the decisions of international tribunals ad hoc has developed the principle of individual responsibility for international crimes that constitute substantive jurisdiction. The application of the principle of universal jurisdiction in the activity of tribunals is revealed. The author concludes that the establishment of ad hoc international criminal tribunals and their activities has contributed to the development of the concept of international crime and the separation of a special "Hague" modification. Keywords: international crime, tribunal, "Hague" modification, international justice, jurisdiction, criminal liability

EUROPEANIZATION AND RECODIFICATION. USUFRUCT

The article examines the features of usufruct in the European countries of Romano-Germanic law, determines the terms for the implementation in the Law of Ukraine of the best practice of usufruct in terms of Europeanization and Recodification. The peculiarities of usufruct in some countries of Romano-Germanic law, particularly in Germany, France, Poland, the Netherlands, Switzerland, Georgia, Moldova and Russia are studied. Usufruct, which is a flexible and universally recognized in the legal systems of Western Europe property right of personal possession for use, which is treated as an independent property right to another's property in the countries of Roman legal family or a kind of easement in the countries of German legal family, remains unknown to most countries – republics of the former Soviet Union. The law of Ukraine also does not provide for the institution of usufruct and regulates the relationship of long-term use of someone else's real estate through a number of limited property rights (emphyteusis, superficies, the right to economic management, the right to operational management) and obligational legal structures (usually land lease and property management). The authors came to the conclusion that it is necessary to introduce the institute of usufruct into the Ukrainian law by supplementing the Civil Code of Ukraine with a new chapter "Uzufruct", the framework provisions of which are proposed in this paper. In the law of Ukraine it is expedient to recognize usufruct as an independent, different from easement, real right of personal possession for use, which serves as a general provision on emphyteusis (the right to use someone else's land for agricultural purposes). In this regard, the provisions of Chapter 32 of the Civil Code of Ukraine on usufruct should be applied to relations under emphyteusis, unless otherwise provided by the provisions of the Central Committee on emphyteusis and does not follow from its essence. According to its purpose, the legal structure of the usufruct can perform any functions of personal possession for the use of another's property, which allows the use of this legal structure in any area of property use, regardless of whether the purpose is income or other socially useful result (charity, etc.). The absence of usufruct in the national law hinders the effective transformation of legal titles on a state and municipal property by waiving the right of economic management and the right of operative management in terms of recodification of the civil legislation, and does not promote formation of the full-fledged land market and its steady development in the terms of cancellation of the moratorium on sale of the agricultural lands, conducting commodity of agricultural production in Ukraine. Regarding the recodification and cancellation of the Commercial Code, usufruct is the most acceptable replacement of the right of economic management and the right of operative management. Along with long-term lease and property management, the usufruct is functionally similar to the right to economic management and the right to operational management. Unlike property management and lease, usufruct provides for paid or gratuitous use of property in the user's own interest (usufructuary), imperatively defined by law, the content of the rights of participants and a list of grounds for their termination under the rules of property rights.

FEATURES OF CODIFICATION OF LEGISLATION IN THE FIELD OF DEFENSE OF UKRAINE: ORGANIZATIONAL AND LEGAL ASPECTS

The article analyzes organizational and legal (theoretical and legal, organizational and technical), comparative and applied and terminological and conceptual aspects of codification of legislation in the field of defense of Ukraine, which has important theoretical, legal, practical and applied significance for the effective operation of national defense forces. Security and defense in a special period of conducting a joint operation and on the way to the Euro-Atlantic integration of our country, interoperability with the armed forces of NATO member states are also within the focus of the paper. In order to determine the system-scientific approach to the implementation of this national-strategic task, the subject of which is the regulation of military-legal social relations in the field of defense forces of the security and defense sector of Ukraine, an attempt was made to explore organizational and legal, defense-institutional national features and capabilities, quality and degree of readiness of separate acts (legal norms) of the current legislation in the field of defense to their codification. The legal nature of codification of legislation is established and substantiated; its general and special concept is clarified taking into account existing problems and features of modern process of defense normative-legal regulation, military law enforcement, improvement of nationaldefense and military-legal relations; proposals for process algorithms codification of legislation in the field of defense of Ukraine are formulated.

THE CONTENT AND STATE OF LEGISLATIVE CONSOLIDATION OF THE LEGAL CATEGORY OF "FINANCIAL RESOURCES" AND ITS ELEMENTS

The purpose of the work is to clarify the content and state of legislative consolidation of the legal category "financial resources" and its elements in Ukraine. To the research methodology belong: general scientific and special methods of cognition, in particular, system-structural, dialectical, formal-logical, and comparative-legal methods. The characteristic of the maintenance and forms of financial resources is given. It was found that the category of "financial resources" is the basic criterion for distinguishing funds from other types of resource funds (property, information, natural, labor, etc.), which achieve a certain goal, and their value is determined in cash (in national or in foreign currency). The paper distinguishes between the concepts of "funds" and "financial resources" as a form to which the relevant legal regime applies, and its substantive, essential content. The main component of financial resources should be recognized as financial assets – funds, securities, debt obligations and the right to claim debts that are not classified as securities. It is emphasized that "funds" is the main type of financial assets, a legal category, the definition of which, gives the differences in interpretation in various laws and needs to be improved. It is emphasized that the concepts of "financial resources" and "financial assets" are related as general and partial, because, firstly, financial assets do not include such resources as bank metals and precious stones, and, secondly, we do not include to financial such resources, the value of which is determined in foreign currency (in cash), which can be assigned by the owner of the property right to the organization formed by him or transferred to the trust management of another authorized entity. As a result of the analysis, it is proposed to include currency values in terms of financial resources, the content and types of which are also missing a single position in the legislation (there is a narrow understanding in the Law of Ukraine. It is noted that in view of the realities of economic relations development it is proposed to include virtual assets. An important trend is that the legal regime of the fund,to which financial resources are mobilized, leads to the consolidation of such financial and legal concepts as "public funds", "budget funds", "public financial resources".