Harmonization of the Ukrainian Legislation with the Legislation of the European Union with Regard to Trade Defence

The issue of the necessity of approximation, adaptation or harmonization of the Ukrainian legislation with the EU legislation has been tackled by a number of scholars in Ukraine. A number of normative documents also paid considerable attention to this issue in general. However, there is still an issue of defining the most suitable term which would better purpose bringing legislation into conformity with the requirements of the EU. According to some scholars the notion “harmonization” could better reflect this process. This view is also shared by the author of this article. The article also discusses the importance and the need to pass new draft laws in the field of trade defence in Ukraine, in particular, regarding anti-dumping, countervailing measures and safeguards. Since some of the new articles correspond to similar provisions in the EU directives, this is viewed as an important step to harmonize the Ukrainian legislation with the legislation of the European Union in this sphere.

Responsibility – an Anthropological Outline

In the article, I try to present an outline of the theory of responsibility. Its double root – based on the logical distinction between criterion and testimony – is derived from Abelard’s anthropology of action and the theory of personhood developed by Timothy Chappell. Initially, I discuss the metaphysical difficulties related to the problem of freedom (especially linked with determinism). Afterwards, following Abelard, I try to indicate an anthropological justification of punishment based on guilt. The last part of the paper is devoted to the attempt to enter the free will into a broader view of Chappell’s theory. The aim of the work is to prepare the ground for future studies on the proleptic notion of personhood and its further application within the philosophy of law.

Problems of Legal Education Reform in Ukraine

The paper attempts to study the current situation of legal education reform in Ukraine. The main ideas of the new model of legal education in Ukraine were analyzed. The author made a comparison of Ukrainian legal education system with legal educations practices in United States, Poland and Germany. The main problems negatively influencing the quality of legal education such as corruption, disproportionally high number of law schools and outdated approaches to teaching were described.

Sophisticated Textualism and Sanctions

In this paper I present a difficulty for Matczak’s sophisticated textualism. I argue that, due to his claims about the descriptive character of legal language and the unity of the possible world postulated by the legal text, his theory cannot successfully account for norms that express factors that an authority should take into account when determining the measure of sanction. I reject two replies to this objection that do not require a modification of Matczak’s account. The upshot of my argument is that in order to accommodate norms pertaining to sanctions, Matczak should drop the assumption of unity of the possible world described by the legal text.

Proof of Causation in Tort Cases

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

Right to Sustainable Development as One of the Rights of Humanity

Right of humanity to development is described within the global search for responses to the planetary challenges. The idea of the rights of humanity is an attempt to propose the new approach to human rights protection, based on global interdependency. The article offers analysis of soft law documents on human right to development, as well as regional instruments for protection of human and peoples’ rights. It is argued that right to sustainable development viewed as a right of humanity may create a broader mechanism of protection both for individual human being and humanity in general.

A Matter of Pure Conscience? Franz Wieacker and his “Conceptual Change” [CRITIQUE]

Based on a recent biography of Franz Wieacker (1908–1994) two central questions are examined. Is it allowed to analyze a young, but already prominent German law professor of the Nazi era as a pure scholar whose identity remained unchanged from the times of Weimar to the Federal Republic of Germany? Is it plausible to treat the Nazis as progenitors of current European legal history, and in particular as founding fathers of European legal tradition?

The Reluctant Warrior: the Challenge to Instilling Law of War in Today’s Professional Warrior

George C. Marshall, famed U.S. World War II general and eventual U.S. Secretary of State and Nobel Peace Prize winner, on his first assignment fresh out of military school, told a fellow officer: Once an army is involved in war, there is a beast in every fighting man which begins tugging at its chains. And a good officer must learn early on how to keep the beast under control, both in his men and himself Even for nations possessing a reputation for stringent compliance with the law of war, the annals of history, to include more contemporary military engagements, are littered with cases of atrocities committed by soldiers. All too often the beast wins, and because every nation has an obligation to minimize the reality described above, nations must continue to dedicate time, thought and resources to best prepare their forces for future military operations. Unrestrained warfare has a direct negative military impact on both winning the war and winning the peace. This corollary remains as true today as it has ever been. What is meant by a ‘reluctant warrior’? Put simply, a reluctant warrior is one who while ready to employ lethal force when the situation demands, is not eager to do so in “the moment”. He answers the questions: “Can I, If I, Should I”, and then takes decisive action – or employs uncommon restraint – with a goal of accomplishing the mission all the while staying true to the value imbedded in the U.S. Marines’ Hymn, “to keep our honor clean”. To fully develop the ‘reluctant warrior’ needed on today’s and tomorrow’s battlefields, this article will look at the role of legal regulation and the practice of military education and training, as well as some of the other factors that influence behavior and decisionmaking during instances of armed conflict. This article will also comment on the costs to the individual soldier and to the mission when a nation fails to prepare ‘reluctant warriors’.

The Problems of Applying Both Criminal and Administrative Penal Sanctions in Light of Article 50 of the Charter of Fundamental Rights of the European Union

The aim of this study is to present the case law of the Court of Justice of the European Union (CJEU) regarding the admissibility of parallel punishments in proceedings conducted separately before criminal courts and administrative authorities. Pursuant to Article 50 of the Charter of Fundamental Rights of the European Union, no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law (the ne bis in idem principle). According to the CJEU, this principle does not constitute a legal obstacle to the application of sanctions for the same unlawful conduct of the same person in both criminal and administrative proceedings, if the sanction imposed by the administrative authority does not have the nature of a criminal penalty (the case C-617/10 Fransson). Assessment of such a nature in accordance with the case law of the CJEU (influenced by the judgment of the European Court of Human Rights in the Engel case) needs to be based on three criteria: the classification of a given procedure in domestic law, the existence of a repressive function of the measure adjudicated under the procedure and the degree of its severity (the case C-489/10 Bonda). In the opinion of the CJEU, the ne bis in idem principle mentioned in Article 50 of the Charter is also not absolute, because the restrictions on the use of the rights granted by the Charter are allowed pursuant to Article 52 (1) of the Charter. Therefore, according to the CJUE, it is possible to double sanction a given behaviour with measures of a penal nature, if it is justified by general objectives such as the protection of the tax system or of the regularity of stock exchange trading, provided that each of the proceedings performs its own specific additional objectives and that the accumulation of sanctions is based on the principle of proportionality. While administrative sanctions could be meant to counteract any transgressions, criminal sanctions should be limited to the most serious, culpable abuses. Moreover, the Member States should regulate the mutual influence of both proceedings, so as not to punish too severely the same behaviour and so that the sanctions applied jointly are absolutely necessary (the case C-545/15 Menci, the case C-537/16 Garlsson Real Estate and Others). On the other hand, according to the CJUE, Article 50 of the Charter excludes the possibility of bringing a given entity to administrative responsibility in the event that it had already been legally acquitted of committing the same offence with a final court ruling, because the acquittal judgement definitively determines that no act has been committed, and thus it is pointless to consider whether an exception to the ne bis in idem principle in such a case is justified in the light of Article 52 (1) of the Charter (joint cases C-596/16 and C-597/16, Enzo Di Puma and Consob). Finally, the CJUE states that Article 50 of the Charter must be interpreted in such a way that it does not preclude the application of the national provision which allows for conducting criminal proceedings, if a definitive administrative penalty for the same acts has been imposed on a company with a legal personality and criminal proceedings have been initiated against a natural person (joint cases C-217/15 and C-350/15, Orsi, Baldetti).

Strict liability Regime in Poland

The article focuses on administrative violations, which are considered to be based on strict (or objective) liability model. Due to the lack of in-depth scholarly analysis of administrative liability, its principles had to be developed in the case-law of the Constitutional Tribunal, which influences the decisions of administrative courts. The recently introduced provisions of the Code of Administrative Procedure concerning administrative monetary penalties are also analysed. The conformity of this model with the guarantees provided by the European Convention on Human Rights is examined, as well. The analysis leads to the conclusion that three exculpatory circumstances are recognized in this regime: force majeure, necessity and ensuring the standard of diligence established by the Constitutional Tribunal.