The procedure of defines the volume of evidence in the court of first instance and the system of their research

The article focuses on the problem of defines the volume of evidence to be research and the system of their researching in the court of first instance including those evidence that arising in connection with changing dated 04.10/2019 in the Criminal procedural Code of Ukraine. The purpose of the article is to analyze the legislation and propose ways to improve current legislation in order to optimize procedures aimed at planning the research of evidence in the court of first instance. The current the Criminal procedural Code of Ukraine assumes that the amount of evidence to be research, the court receives not in the form of protocols, of proprietary evidence or other materials, and with a application speech, which is proclaimed by the parties at the beginning of the court session. Introductory speech is the first information that builds a court views about evidences, through which the parties intend to substantiate the substitution of their legal positions concerning the prosecution, their affiliation, admissibility and sufficiency, order of their research into Court hearings, as well as the content of other legal positions of the parties in this proceeding. During the proclamation of the application speeches, the parties cite the amount of evidence on which their position is built, after which the court must investigate the evidence submitted by them. To construct a structural and logical study of evidence, a necessary plan for such a study and establish the evidence study procedure. Under the concept of 'evidence research ' procedure, it is proposed to understand a certain sequence and order of of actions that will depend on a particular criminal proceeding. In the study of evidence, the court should consider the specifics of the proceeding; Specifics of the evidence submitted by the Parties; Focus how long it takes to study the submitted evidence. If a party raises a question about inadmissibility evidence, such doubt should be in writing decorated with appropriate evidence. A party that opposes such a written application shall refute such a statement by submitting the court its arguments. In the article analyses questions about inadmissibility evidence and making a propose to introduction procedure to recognition evidences how inadmissibility. In the presence of a substantiated position of rejection in the acceptance of evidence, the party may in writing argue about the recognition of such evidence invalid.

Transport telecommunication networks as an information medium for obtaining information relevant to criminal proceedings: problematic issues of legal regulation

Scientific and technological progress, as well as the rapid development of information technologies, the formation of the information society, the introduction of telecommunications systems and networks into all vital processes, the availability of digital communications and information transmission have necessitated the use of new methods of combating crime in the new information (cybernetic) space, this artificially created environment, which is an integral part of transport telecommunications networks (TTN). The extraterritorial nature of transport telecommunication networks and systems, together with the global Internet, greatly complicates their legal regulation, as it is sometimes quite difficult to determine the jurisdiction of which state relates a criminal offense. Thus, when conducting silent investigative actions, a legitimate question arises as to the lawfulness of work in the information environment of the transport telecommunication network for obtaining digital evidence in the interests of criminal proceedings. Purpose of the article: to investigate the problematic issues of legal regulation when working in transport telecommunication networks in order to obtain information relevant to criminal proceedings during the conduct of silent investigative actions. The paper draws attention to the insufficient level of scientific research to cover the problematic issues of studying transport telecommunications networks as an information medium for legal obtaining digital evidence in the interests of criminal justice. The national legislation regulating public relations in this field is analyzed, as well as the case law of the European Court of Human Rights, which reveals some «white spots» in national legislation on ensuring the legitimacy and protection of human rights in the conduct of vague private communication interventions in the information environment of transport telecommunication networks. Taking into account the extraterritorial nature of the information (cyber) space, it is concluded that there is a need for clear legislative regulation of procedural activity in the transport telecommunication networks in order to ensure the security of the individual, society and the state as a whole in this sphere. The article also discusses different approaches to legal disparities in cyber crime investigations. The question of determining the crime scene in the information (cybernetic) space is raised, an attempt is made to define the "crime scene" and provides suggestions for improving legislation.

Standard of proof «sufficient reason» in the criminal procedure of Ukraine

Based on the results of analysis of foreign doctrine, foreign procedural legislation, foreign law enforcement practice, the practice of the European Court of Human Rights. In the article explores problematic issues of the application of the standard of proof “sufficient reason” in the domestic criminal process. The relevance of the article is that the standard of proof “sufficient reason” or “probable cause” in the system of standard of proof in the domestic criminal process has a special place and using to accept most procedural decisions at the pre-trial investigation. The purpose of the article is to substantiation the main direction of using in the criminal proceed of Ukraine standard of proof “sufficient reason” taking into account the legal nature of this standard. In the article proved that “sufficient reason” is the standard of proof in the criminal proceed of Ukraine execution of which is based on “common sense” and in the factual analysis (assessment) of the whole set of facts and circumstance in their integrity, authorized entities with the use of special knowledges and experience on establishing “sufficient reason” for making appropriate procedural decision. Implementation of the standard of proof “sufficient reason” as well as “reasonable suspicion” doesn`t envisage a lack of doubt as guilty of the person. Sufficient is a possible knowledge about committing criminal offence by person with the difference that for the highest standard measures have to be higher. Moreover, within “flexible” standard of proof “sufficient reason” of the level of probability can also vary, depending on how much negatively appropriate procedural decision will affect the rights of the person. Prove that in the current Criminal procedural code of Ukraine the standard of proof “sufficient reason” is used to accept most procedural decisions at the pre-trial investigation stage in criminal proceedings, when the most reasonable suspicion of a committing person criminal offence is insufficient due to significant restrictions on human rights as a result of appropriate decision. At that, the flexible nature of the standard of evidence "sufficient reason", which consists in the required measure conviction the appropriate standard from the circumstances of the specific criminal proceedings, allows you to assert its suitability for Making a wide range of procedural decisions. Standard of proof “sufficient reason” is used for adoption of such procedural decisions: on the application of certain measures to ensure criminal proceedings; in addressing the issue of applying precautionary measures as a variety of measures to ensure criminal proceedings; in addressing the issue of individual investigative (detective) actions; in addressing the issue of granting permission for secret investigative (detective) actions and deciding on the use of the results of unspoken investigative actions in other criminal proceedings; when deciding on the placement of the person in the receiver-allocator for children (Part 4 art. 499 of the Criminal procedural code of Ukraine).

Guilt in compositions of crimes against bases of national safety of Ukraine: problem questions of theory and fixing in a law on criminal responsibility

The article is devoted to the investigation of forms and types of guilt in the composition of crimes against the basics of national security of Ukraine. The presence of a number of unresolved issues at the theoretical and legal level on this issue actualizes the need for its scientific elaboration and formulation of proposals to improve the provisions of the law on criminal liability. The purpose of the article is to investigate the problematic issues of forms and types of guilt in crimes against the bases of national security of Ukraine, ways of fixing them in the articles of Section I of the Special part of the Criminal Code of Ukraine and to develop sound proposals for their solution based on the provisions of the doctrine of criminal law. The article presents the existing approaches of doctrinal interpretation by scientists of the provisions on wine, its forms and types, through which the research of this feature in the crimes under Art. Art. 109 - 114-1 of the Criminal Code of Ukraine. It is proved that the most reasonable is the psychological concept of guilt, which promotes the insertion of forms and types of guilt in crimes against the basics of national security with a formal composition, the elucidation of forms of guilt in the warehouses of crimes provided by articles of section I of the Special part of the Criminal Code of Ukraine, in which the legislator directly does not say that it is one of the preconditions for the proper qualification of the act committed by the person. It is proved that the basis for the conclusion about the intentional form of guilt is based on: 1) a direct indication of it in the norm of the law (Part 1 of Article 110 and Part 1 of Article 111 of the Criminal Code of Ukraine); 2) indication of the specific purpose or motives of the criminal behavior (Part 1 of Article 109, Note 1, Part 1 and Part 2 of Article 110-2, Article 113, Part 1 of Article 114 and Article 112 of the Criminal Code of Ukraine) ; 3) combination of the above mentioned features in one norm (Part 1 of Article 110 of the Criminal Code of Ukraine); 4) interpretation of terms used in the dispositions of certain articles and / or through the description in the law of the features of the crime (Part 1 of Article 110, Part 2 of Article 109, Part 1 of Article 110, Part 1 of Article 111, Article 112, Article 113, Part 1 of Article 114 and Part 1 of Article 114-1 of the Criminal Code of Ukraine); 5) interpretation of terms used in other articles of the Special (espionage as a part of state treason) or articles of the General part of the Criminal Code of Ukraine (conspiracy to commit the actions provided for in part 1 of Article 109 of the Criminal Code of Ukraine (Article 26 of the Criminal Code of Ukraine), attempted murder state or public figure (Article 112 of the Criminal Code of Ukraine) (part 1 of Article 15 of the Criminal Code of Ukraine); 6) the orientation of socially dangerous acts. The specifics of constructing all these norms testify to the direct intent of the person who committed the respective crime. On this basis it is substantiated that the lack of specification of intent in part 1 of Art. 111 and Part 1 of Art. 110 of the Criminal Code of Ukraine does not contribute to the clarity of the provisions of the Criminal Code in the specified part, and the direct intent in the composition of these crimes is evidenced by: 1) special purpose (Part 1 of Article 110 of the Criminal Code); 2) the terms used in the dispositions of the said articles (“violation of the order… established by the Constitution of Ukraine” (part 1 of Article 110), “transfer of information…, transition to the enemy's side, rendering… assistance in carrying out subversive activities against Ukraine”) ( Part 1 of Article 111); 3) the focus of socially dangerous action. In order to eliminate the ambiguous interpretation of the provisions of Part 1 of Art. 110 and Part 1 of Art. 111 of the Criminal Code it is proposed to amend them accordingly. The forms and type of guilt in the warehouses of crimes with material composition (Part 3 of Article 110, Part 3 and 4 of Article 110-2, Part 2 of Article 114-1 of the Criminal Code of Ukraine) were not clearly reflected in the relevant rules of the law. It is substantiated that the subject's attitude to socially dangerous consequences (deaths of people (h. 3 Art. 110, h. 2 Art. 114-1), other grave consequences (h. 3 Art. 110, h. 4 Art. 110- 2, Part 2 of Article 114-1) Causing considerable property damage (Part 3 of Article 110-2) can be intentional or negligent.

Criminal responsibility for the most basic typical forms of compliance of copyright and associated rights over the foreign legislation

The article analyzes the criminal law of foreign countries, which reflect the main types of forms of encroachments on objects of copyright and related rights. It has been established that the criminal responsibility for the above-mentioned acts was foreseen in the most countries of the world. The purpose of the article is to investigate the issue of criminal responsibility for the most basic typical forms of compliance of copyright and associated rights over the foreign legislation. Extremely widespread forms of socially dangerous encroachments on copyright objects are "appropriation of authorship", "plagiarism" and "coercion to co-authorship". Offenses that encroach on copyright objects are usually placed in the sections "Crimes against the constitutional rights and freedoms of man and citizen", "Crimes against property", and in some cases are placed in a separate section "Crimes against Intellectual Property». Analysis of the criminal legislation of foreign countries suggests that the typical forms of encroachments on objects of copyright and related rights include acts related to: a) the illegal entry into the circulation of objects of copyright and related rights contrary to the established legislation procedure. These types of encroachments are represented by the following wording of the criminal law of foreign law: the wording indicating the act of import or other movement of objects of copyright and related rights (for example, transportation, movement, import, export, etc.); wording indicating acts concerning the acquisition and storage of objects that could not be in circulation (in particular, acquisition, storage, conscious possession for the purpose of trade or inclusion in trade, illicitly created objects, goods, including if they were imported, receiving etc.); the wording indicating the acts related to the introduction of objects to commodity circulation or the commission of any actions for the purpose of further introduction into circulation, including acts concerning the putting into circulation of equipment for the illegal creation of copyright and related rights objects (for example, the use of objects without a check mark and in the absence of author's contracts; introduction into business turnover; introduction into circulation; change, removal from copies of objects of symbols and signs of protection of rights etc.); b) illegal production (creation) and / or illegal use of such objects. The following wording of the criminal law provisions refers to these attacks: the wording which denotes actions related to the illegal creation of the object of intellectual property rights, the introduction of certain changes to the object or information about the object, as well as acts of unlawful gain rights to the object (for example, attribution or coercion, plagiarism, reproduction, copying, forgery or imitation etc.); wording that denotes acts of unlawful use and distribution of objects (in particular, illegal use, illegal distribution, sale or offer for sale, sales etc.); general wording indicating any of the above-mentioned encroachments, as well as other attacks on the objects of copyright and related rights (for example violation of the law, any other form of use of objects, other infringement of rights, violation of any which of the rights etc.).

History of Ukrainian law: conceptual, istoriografìcal and comparative components of its identification

The approaches to the category "History of Ukrainian Law" are analyzed, its author definition and periodization in the historical dimension is proposed. Doctrinal approach of the Department of History of Law and State of the law Faculty of Taras Shevchenko National University of Kyiv is defined, which consists in recognition of the right of law before the State Institute. In our opinion, with the advent of the state, history of law appears as a history of national legislation in its relationship and interdependence with the state's regulatory activities – its administrative and judicial institutions, organization and activities of the army, police, and punitive agencies etc. The author indicates that the story is indicative that society can develop steadily in the coordinate of the environment, and the function of the instrument of the Zaman environment executes the right. The porpose of article is reserchirg the history of Ukrainian law: conceptual, istoriografìcal and comparative components of its identification It is alleged that for the first time the definition of "history of Ukrainian Law" is not implemented in Ukraine but beyond its borders. The galaxy of lawyers, and among them and historians of law, after the defeat of the Ukrainian Revolution of 1917 – 1921, were forced to leave the motherland and settle in the neighboring countries of Eastern Europe. A textbook of such name appeared in the conditions of Ukrainian emigration in the early 1920-ies. This primacy belongs to several researchers of the Ukrainian diaspora, who, with no historical, historical, legal sources and archival materials, have remained in the absolute majority in the libraries and archival funds of Soviet Ukraine. However, in these conditions they were able to lay the foundations for the formation of the appropriate field of scientific knowledge. It is noted that the successor of the traditions preserved in the diaspora can be called the Department of the History of law and State of the law Faculty of Taras Shevchenko Kyiv University, whose members for many years advocate not only the name of the educational The subject "History of Ukrainian Law", but also prove its genetic connection with the right of the Rus state, other national state formations of the later period. A few manuals on the history of Ukrainian law came from the pen of the lecturers. Special emphasis was made on the works of Alexander Shevchenko, who became the author of several textbooks and manuals that are still widely used in the educational process of law faculties in Ukraine. In one of them, O. Shevchenko actualized The problem of periodization of Ukrainian law, where the main criterion was determined by the evolution of the sources of law. In these positions is the author of the proposed publication. In the final part of the work emphasized the examples in the differences in the evolution, essence and content of the Ukrainian law from the Russian.

Peculiarities of negotiating by a barrister during reconciliation within pre-trial investigation

So far, the current legislation provides the parties of the criminal proceedings for the right of reconciliation. Moreover, the Criminal and Criminal Procedure Codes provide for grounds, participants, stages of the reconciliation process. Nevertheless, the most crucial point for attainment of peace between the parties are direct negotiations of the victim and suspected person or defendant. It is logical that legislator doesn’t set limits and make recommendations upon negotiating process. The purpose of the article is to identify the main stages of negotiation with a view to reconciling the suspect and the victim in the pre-trial investigation and outlining known negotiation techniques that may be helpful to the lawyer in the process of communication between the parties in the context of reconciliation. It is stated, that the barrister is an irreplaceable member of the negotiating process during reconciliation within criminal proceedings. He can not only legally qualify the parties` interests, but also, based on his own experience and scientific awareness, can help achieve effective results of the negotiations. Meanwhile, the author justifies the necessity of additional awareness of the barrister with respect to negotiating and psychology aimed at speeding up of negotiations and establish contact with each party and between the parties. It is determined that the knowledge of classical communication techniques and the research of new communication techniques will increase the level of negotiation efficiency and, as a consequence, the successful resolution of conflicts. Given that reconciliation negotiations are often considered successful when satisfy the interests of all parties, development of communication skills based on the above mentioned techniques will help to reach consensus. The author seeks to analysis of the familiar negotiating techniques and making predictions about the implementation of theories within criminal procedural practice as well as illustration of the causal link between the lawyer's negotiating skills and the parties' possible reactions. The stage of the negotiation process is illustrated, taking into account the following categories: personal characteristics of the parties, the preparatory process, tactics and techniques of communication and feedback of the parties.

The issue of determination of bail’s size under Ukrainian legislation and legislation of Anglo-American countries: comparatively – judicial analysis

The legal regulation of bail's institute as a preventive measure in Ukraine and Anglo - American countries, including the aim of its application, bail's size and criteria for its determination, is the subject matter of this article. The authors support a point concerning to the inadvisability of legislative regulation of maximum bail's size as well as a judge's opportunity in certain circumstances to apply bail, size of which is lower than minimum level. The purpose of article is to clarify strengths and weakness of legislative regulation of the bail in Ukraine, England and United States of America, to highlight a separate problems, arising in practice, to express recommendations and proposals regarding to the improvement of valid criminal procedural legislation of Ukraine. Analyzing provisions of criminal – procedural legislation of England and United States of America, the authors provide a few bail's classifications, depending on way of making a deposit. Besides it, the authors detect the drawbacks of legislative technique of Anglo – American countries regarding to not taking by judges into account material and family state of accused and suspected person, that leads to taking into custody a significant number of people, who are not financially secured to make a deposit. The decisions of the European Court on Human Rights as an international judicial institution regarding to determination of the bail's size, which will guarantee an enforcement of duties that a suspected person is obliged to do and will be defined taking into account a material state of a suspected person, are highlighted in this article. The authors also explore an issue of determination of bail's object and emphasizes on the necessity of clarifying of the money origin with the aim to avoid money laundering, which is offence, predicted by art.209 of Criminal Code of Ukraine. Investigating theoretical and practical aspects of the determination of bail's size, the authors make a conclusion regarding to the existence of certain difference in national legislation and legislation of Anglo – American countries, that is a result of belonging Ukraine to continental, and the USA and England – to Anglo – American countries. The authors state that prospective of further explorations of high stated issue are an improvement of legislation, implementation of world's experience, taking into account the legal positions of the European Court on Human Rights, etc.

Problem issues of objectives and motives in composition of crimes against the basis of national security of Ukraine

Important criminal value, first of all, for the proper qualification of the crimes provided by Art. 109 - 114-1 of the Criminal Code of Ukraine, the justice of the punished person is punished by the purpose and motive of the crime, which are independent psychological features of the subjective party, which, in turn, is not limited to the subject's attitude to the socially dangerous act or omission committed by him and its consequences. The purpose of the article is to identify the main problems that arise in determining the purpose and motives of crimes against the basics of national security and to formulate proposals to improve the provisions of the Criminal Code of Ukraine. The investigations of the indicated features of the subjective side of the warehouses of criminals provided for in Art. 109 - 114-1 of the Criminal Code of Ukraine demonstrated that the science of criminal law presents different approaches of the authors to understanding the purpose and motives of the basic and qualified compositions of crimes against the bases of national security of Ukraine. Articles of Section I of the Special Part of the Criminal Code are designed in such a way as to presuppose on the one hand a dual interpretation of some subjective features of the crime, on the other - the obligatory features of the subjective party specified in them are superfluous or those which are fixed in violation of the normative design rules technology. Yes, the following issues remain unresolved today: From the point of view of the legislative proposal, the position regarding the necessity to anticipate as a constructive feature of public calls and dissemination of materials with calls for action, provided for in Part 2 of Art. 109 and Part 1 of Art. 110 of the Criminal Code of Ukraine, a special purpose, since the proposed approach will create difficulties in proving by the investigators and the court the guilt of the person in committing the relevant crime. Predicting the purpose of the crime as a mandatory feature in the note to Art. 110-2 of the Criminal Code of Ukraine does not fully correspond to the main purpose of the said constructive part of the criminal law norms and rules of the normative design technique, and also leads to narrowing the scope of the said article, difficulties in proving in criminal proceedings. the provisions of Part 1 of Art. 111 of the Criminal Code of Ukraine give grounds for claiming that there is a so-called "double" purpose in it, which creates certain difficulties for qualification and prosecution of the perpetrator precisely for treason. Damage not only to the sovereignty, territorial integrity and inviolability, defense capacity, state, economic or information security of Ukraine, but also to other types of state security may be desirable for the subject. Features of the technical and legal design of the disposition of Art. 112 of the Criminal Code of Ukraine is the basis of different approaches of the authors to understanding the obligatory features of the subjective side of the crime committed by it. Only motive, purpose and motive, purpose or motive that does not facilitate their correct interpretation by law enforcement officials and court practice are considered such.

Representative function of the public prosecutor`s office: defects of legislation

The current legislative regulation of the representative function of the prosecutor’s office in Ukraine contains a number of defects, which leads to a decrease in the effectiveness of law enforcement activities and the level of protection of the rights, freedoms and legitimate interests of participants of legal relations, and therefore the social importance of the prosecutor’s office activities outside the sphere of criminal justice in Ukraine. In such circumstances, there is a scientific discourse on the feasibility of retaining the powers of the prosecutor’s office outside the sphere of criminal justice in Ukraine, since the society seeks not for process for the sake of process, but for the result, which necessitates the scientific investigation of these defects in order to eliminate their consequences in law enforcement. The purpose of the article is to analyze the legislative regulation of the prosecutor’s office outside the sphere of criminal justice in Ukraine and the practice of its application in order to identify the defects of the legislation in this field, presenting their own vision on the prospects of legal support of the prosecutor’s office in this area in accordance with the needs and resources of society, as well as introduction proposals to remedy legislative defects in order to improve its enforcement. It is established that the legislative regulation of the representative function of the prosecutor’s office contains several defects, including: the declarative nature of the powers of the prosecutor, by which he is empowered in the process of exercising the representative function, especially in the pre-trial form of its implementation; appraisal terms in the legislative regulation of relations in a particular area, such as «state interests» and «exceptional cases»; the mismatch between the language structure and the content that the legislator sought to reflect in law, the manifestation of which is the definition of the object of the public prosecutor’s office of the «interest of the state», which in some cases is understood by the jurisdictions as a public authority and distorts the defined mission of the prosecutor’s office outside the criminal justice system at the level of the European institutions; the collisions in the legislative regulation of the representative function of the prosecutor’s office, which cause legal uncertainty as to the extent of the prosecutor’s powers in its implementation; the absence of a legislative conceptual vision of the public prosecutor’s office powers outside the criminal justice sphere. It is suggested that the basis for eliminating these defects in the legislation should be the necessity to change the conceptual model of prosecutor’s activity outside the sphere of criminal justice. The main elements of this model should be the clarification of the grounds for giving the prosecutor’s office guaranteed, not declarative powers outside the sphere of criminal justice, determined by the task of protecting human rights and freedoms, the general interests of society and the state. It is clarified the author’s vision of the elimination of defects in the legislative regulation of the representative function of the prosecutor’s office in Ukraine and the prospects for further scientific investigations in this field are outlined.