Theory and practice of jurisprudence

Exploring the Limits of Ukrainian Tort Law from Business and Human Rights Perspective

2024-12-02T21:15:35+02:00

This paper examines the capacity of Ukrainian tort law to address business-related human rights violations, using a model case to evaluate its effectiveness. It focuses on how the legal framework responds to challenges involving corporate misconduct, particularly in scenarios where direct and indirect actors are implicated in human rights abuses. The discussion highlights four critical issues: the interplay between tort law and human rights law, liability for indirect involvement, jurisdictional challenges, and mechanisms for collective redress.

The analysis reveals several systemic shortcomings in Ukrainian tort law. The concept of wrongfulness is narrowly tied to explicit statutory breaches, limiting its applicability in cases of subtle or systemic violations. Rigid causation requirements and the conflation of fault and wrongfulness further impede the effective use of tort law in addressing complex cases involving multiple actors. The framework for vicarious liability and joint infliction remains underdeveloped, posing additional barriers to holding entities accountable for indirect involvement in human rights violations.

Despite these limitations, Ukrainian procedural law offers some avenues for addressing collective harms, such as the joinder of multiple claims and representation by NGOs, although the absence of a formal class action mechanism undermines litigation efficiency. Jurisdictional provisions demonstrate flexibility, accommodating cases with international elements and cross-border implications.

The paper concludes that while Ukrainian tort law faces significant doctrinal and procedural challenges, these are not insurmountable. Through creative legal strategies and ongoing reforms, the framework has the potential to evolve into a more robust mechanism for addressing corporate accountability in human rights contexts.

Virtual asset market participants

2024-09-30T13:23:54+03:00

The relevance of the topic is due to the need to specify the circle of participants in the virtual asset market, since participants are an important element of legal relations in the virtual asset market. However, a clear circle of them has not yet been formed. With the development of the virtual asset market, new participants emerged, which explains the need to specify their circle at the current stage of market formation. The need for such specification is also due to the fact that the role and importance of the virtual asset market for the economy of Ukraine, including for its post-war recovery, require urgent certainty regarding the legal framework for the market functioning, which, in particular, should concern participants, which will allow to solve a problem of regulation of other legal aspects of the market functioning. The purpose of the article is to specify the circle of the virtual assets marker participants and to substantiate their place and role in this market by means of classification.

Based on the provided study, author specifies the circle of virtual assets marker participants, which are proposed to be divided into the following functional groups: 1) the main participants – virtual assets service providers, which, depending on the activities carried out, may be business entities, the range of which is presented in Article 55 of the Commercial Code of Ukraine, business entities established under the laws of foreign states, as well as decentralized autonomous organizations functioning as virtual assets service providers; issuers (including miners); offerors; consumers; and individuals conducting transactions with virtual assets in their own interests; 2) participants with auxiliary functions that provide the necessary conditions for the functioning of the virtual asset market by providing services (banking, insurance, legal, consulting, etc.); 3) participants with special functions related to state regulation of the virtual asset market and self-regulatory organizations.

The author suggests that the concept of “virtual asset market participant” should be properly enshrined in national legislation.

Employee Bonuses as a Stimulating Factor for Productive Labor

2024-12-12T15:32:39+02:00

The relevance of the topic of the article stems from the ongoing significance of remuneration in both scientific and practical discourse. While the general aspects of remuneration — its structure and essence —have been widely studied, the application of specific remuneration elements as methods to stimulate employees has received less attention. This applies in particular to the system of stimulation by establishing qualitative and quantitative indicators of the efficiency and productivity of employees in performing their duties. This article aims to address this gap by examining the application of Key Performance Indicators (KPIs) and the allocation of company shares as distinctive tools for incentivizing employees towards higher productivity.) For this purpose, formal-logical, comparative, analytical and synthetic research methods are used. The authors conclude that bonuses based on KPI performance are a promising way to motivate employees and are designed to improve labor efficiency at the enterprise through material incentives for employees. Integrating KPIs into the remuneration system enables a clear differentiation of employee performance levels. For the KPI system to be effective, it must be absolutely transparent. A performance evaluation scheme must also be created, with the help of which employees will be motivated to achieve results. In order to fairly calculate payments based on KPI, all payments to the employee should be taken into account. The article also explores the distribution of company shares among employees as an increasingly popular mechanism for employee rewards. One notable advantage of this approach is that the original owner retains ownership of the shares while linking employee remuneration to dividends. Another model involves the sale of shares with options, either incorporated into the share purchase and sale agreement or established through a separate agreement. These mechanisms offer innovative pathways to align employee incentives with the company’s success, fostering enhanced productivity and engagement.

Implementation of the Right to Privacy in the Context of the Restrictive Impact of Modern Information Technologies

2024-12-30T19:15:07+02:00

The relevance of the topic is due to the multidimensionality, relativity, conceptual multiplicity and social and practical significance of the problem of ensuring the human right to privacy in the context of modern social reality. The purpose of the article is to examine the phenomenon of privacy and the socio-cultural conditions for the realisation of the human right to it from a philosophical perspective. Methods used: the dialectical method (for comprehensive knowledge of the nature and genesis of the right to privacy), systemic and structural-functional approaches (for studying the contradictory information impact on a person of complex technical systems), analytical and synthetic method, as well as methods of comparison and analogy (for comparing practical models of the impact of the latest information technologies on the ways of ensuring the human right to privacy). The authors show that the modern socio-cultural reality demonstrates the dichotomy of what is proper and what is in solving the problem of security of the private status of an individual and the human right to privacy. The loss of privacy, which is a trend in modern social life, indicates the ever-increasing risks of alienation of privacy in social reality. The author emphasises that modern technologies can completely violate the human right to privacy, penetrate special places and certain aspects of private life and change the locus of privacy. It is substantiated that modern information and digital technologies, having an ambivalent impact on the freedom and security of personal existence, radically narrow the boundaries of the right to privacy, thereby problematising the structures of human self-identity and generating insecurity of personal life, and the prospects for research in this area are emphasised.

Significance of the State Registration for the Acquisition of the Real Estate Title

2024-12-12T15:50:43+02:00

The Ukrainian legislation on state registration of property rights and their encumbrances is based on the principle of entry, i.e. introduces a negative title system. State registration is essential for the acquisition of the real estate title and its protection, as it is the final legal fact with which the law links the acquisition of ownership. This is preceded by the conclusion of an agreement, which is the basis for the acquisition of ownership, and therefore the basis for making an entry in the state register of real rights to immovable property and their encumbrances. Since an agreement for the alienation of real estate is subject to notarisation, a notary performs both a notarial act to certify the agreement and a registration act to enter the relevant information into the register. If the agreement on the basis of which the entry was made in the register is challenged, the question arises as to what legal consequences will occur and whether this will affect the ownership of the person in whose name it is registered. This is all the more important if the property has already been alienated by a party to a transaction that has been declared invalid and acquired by a third party who relied on the correctness of the entry in the register. Ukrainian court practice holds that vindication by a person who disputes the real estate alienation agreement and is considered to be the owner of his property is permissible against an acquirer who is unlawfully listed in the register as the owner. The legal regulation of real estate acquisition in Germany is different from that in Ukraine, and therefore the legal consequences of challenging the title to property are different. Under German law, two fundamental principles must be observed when acquiring real estate property: The separation and abstraction principle as well as the public faith of the land register and the protection of bona fide acquisition. According to the principle of separation and abstraction, the sale and purchase agreement (under the law of obligations) and the legal transaction (in rem) for the transfer of ownership are strictly separated from each other. They are also not dependent on each other in terms of their existence. The entry in the land register is only one part of the legal transaction in rem for the transfer of ownership. The public faith of the land register means that the bona fide purchaser of a right entered in the land register may rely on this entry - even if it is not correct under substantive law. Consequently, a person who proved the invalidity of a sale and purchase agreement is not entitled to vindication but to condictio, as the transfer of ownership is valid. In case of resale of the real estate to a bona fide third party, the original seller is only entitled to a compensation in money: The entry in the land register is of paramount importance to all those who relied in good faith on its correctness, believing that they were entering into an agreement with a person who has the right to alienate the property as its owner.

Collecting Evidence and Investigating Ecocide in Ukraine: Problems, Innovations, Prospects

2024-12-30T19:32:11+02:00

The relevance of this article lies in the study of the problems of collecting evidence and investigating ecocide in Ukraine during the armed Russian aggression and the formation of criminalistic recommendations for countering such crimes. The purpose of this study is to clarify the essence of ecocide in the context of an armed conflict, study the historical genesis of the problem, analyze national and international legal regulation of ecocide. An important aspect of covering the goals and problems of this article is the possibility of determining forensic means of countering ecocide during an armed conflict to form individual criminalistic recommendations for investigating the crime under study. Among the methods by which the study of this topic is carried out, one can highlight: the method of synthesis and theoretical analysis, the historical and legal method, the functional method, the analytical method, the dialectical method, the empirical method, the formal legal method, the systems method, the axiomatic method, the deductive method, the inductive method, the structural-genetic analysis and synthesis and event analysis and others, substantiating the topic of the study. Based on the study and analysis of judicial and investigative practice, a wide range of scientific sources and norms of national and international law, the essence of ecocide during an armed conflict is investigated. The position on the advisability of securing at the legislative level a separate article "Ecocide during an armed conflict" in the context of the requirements of international law is substantiated. The article reflects the forms of international interaction with state and non-state actors in the investigation of ecocide. The results of this article: conducting an analysis and providing a description of ecocide in the context of its relationship with armed conflict; substantiating the position on the need to include ecocide in the jurisdiction of the International Criminal Court; clarifying and disclosing the features of the formation of individual sources of obtaining evidentiary information; characterizing the features of ecocide regulation from the point of view of national and international law; defining forensic means of counteracting ecocide and obtaining evidentiary information in the context of building an effective methodology for investigating such a crime. The provisions and recommendations proposed in this article are of scientific and practical value primarily for practitioners conducting pre-trial investigations, whose activities are directly aimed at identifying and investigating ecocide, as well as for all participants in this process and persons whose rights may be violated during the investigation and consideration of the ICC. The problems considered and the proposed conclusions will be useful for scientists, practicing lawyers, attorneys and judges.

Proportionality of Intervention and the Balance of Public and Private Interests in Covert Evidence Collection in Criminal Proceedings

2024-10-16T11:35:06+03:00

The article addresses problematic issues of proportionality of interference and the balance of public and private interests during covert evidence collection in criminal proceedings. The relevance of this topic is driven by the fact that, in the context of contemporary challenges related to security, digitalization, and globalization, covert investigative (search) actions should be considered indicators of adherence to the balance of public and private interests during criminal procedural activities. The aim of the article is to provide a scholarly understanding of ensuring proportionality of interference and balance of public and private interests in criminal proceedings during covert evidence collection. The following scientific methods were used to achieve this purpose and accomplish the related objectives: dialectical, formal-legal, formal-logical, analysis and synthesis, and inductive. The empirical basis of the research comprises the most relevant and significant positions of the cassation court concerning covert evidence collection, which are perceived as guidelines and, consequently, as indicators of trends in the national law enforcement system.

The authors examine the Supreme Court's positions on specific procedural issues related to interference with private communication, identifying a trend toward emphasizing public interest. Analyzing critical decisions of the cassation court on the appropriate limits of procedural confidentiality allows the authors to conclude that protecting the confidentiality (secrecy) of the technical component in covert investigative (search) actions, though justified for specialized technical means, cannot be considered proportionate concerning the carriers of obtained results. The procedural analysis of issues related to crime provocation highlights the cassation court's practice of using a comprehensive approach to consider the circumstances of covert operations and the diligence and fairness of the prosecution's procedural conduct within the adversarial court process, which is actively used to assess the presence or absence of elements indicating crime provocation. Based on the analyzed material, the study identifies procedurally significant trends and prospective directions for further research.

Keywords: proportionality of interference, pre-trial investigation, covert investigative actions, crime provocation

International Economic Sanctions. Part 2. Sanctions Policy of the European Union Towards Russia: Problems of Implementation

2024-12-17T12:15:25+02:00

The relevance of this study lies in examining the process of formation and development of the European Union’s sanctions policy, focusing particularly on the theory and practice of applying restrictive measures against Russia in response to its aggression against Ukraine. The purpose and objectives of the research involve analyzing and synthesizing information related to the development of the theory and practice underlying the European Communities’/European Union’s application of economic sanctions, comparing approaches to shaping a general sanctions policy and the specific sanctions policy toward Russia (referred to as a “sanctions revolution”), as well as formulating the author’s conclusions and recommendations for both theoretical and practical application.

A broad range of research methodologies and approaches was employed in the study. The formal-legal method facilitated the formulation of key terms, concepts, characteristics, and constructs, as well as the development of various classifications. The historical method proved useful in examining the establishment and evolution of the EU’s sanctions policy. The systemic method aided in elucidating the mechanisms by which the EU imposes, modifies, and lifts economic sanctions against Russia. Additionally, the comparative-legal method was employed to evaluate the legal regulation of economic sanctions during different phases of European integration.

The results of the study are reflected in the characterization of the European Union’s autonomous economic sanctions as a system of restrictive measures introduced by EU institutions within the framework of the Common Foreign and Security Policy, without a mandate from the UN Security Council. The article concludes that the scope and depth of the EU’s numerous sanctions regimes indicate that the Common Foreign and Security Policy is not merely an aspirational construct; rather, it actively promotes the development of legal norms and processes within the EU’s internal legal order. In contemporary EU foreign policy, sanctions have effectively evolved into one of the Union’s most favored instruments of external action.

The article further argues that achieving member-state consensus on formulating a common sanctions policy demonstrates not only the Europeanization of national foreign policies but, more importantly, the formation of a genuinely pan-European foreign policy. It concludes that the EU’s autonomous sanctions aim to penalize Russia, whose policies violate international law and threaten both regional and global security, by inflicting maximum damage. International law does not prohibit states or their unions, such as the European Union, from imposing unilateral economic restrictive measures if justified by security considerations.

Finally, the article acknowledges imperfections in the EU’s sanctions policy, evidenced by the widespread circumvention of its anti-Russian sanctions. Recognizing this reality compels EU institutions and the governments of its member states to develop additional instruments to combat the evasion of existing restrictive measures.

Jurisprudential Perspective оn Civic-Political Synergy іn Digital Participation іn Latvia

2024-12-05T09:48:51+02:00

This cross-disciplinary study in political science employs analytical and sociological jurisprudence to elucidate the civic-political synergy among actors within Latvia's highly efficient digital civic participation ecosystem. With 78 civic-initiated legislative changes over 13 years ‒ most occurring between electoral cycles ‒ Latvia stands out globally for its efficiency in this area of governance. Despite its international significance in democratic processes and governance innovation, the efficiency of digital civic participation and the roles of its actors remain underexplored. Comparable systems of digital civic participation are widespread, including in Ukraine; however, their measurable and sustained efficiency often presents challenges. The case of legislated collective submissions in Latvia, alongside the digital civic participation ecosystem centred on the ManaBalss.lv (MyVoice) platform since 2011, provides a clear example of mutually beneficial, goal-oriented synergies between diverse democratic actors. Moreover, it underscores the importance of balanced regulation in establishing the legal framework within which these dedicated participants operate. While the ManaBalss.lv platform was initially created to empower civil society vis-à-vis politicians, political parties have gradually reframed their campaigns to leverage this highly successful and respected platform for their own objectives. To prevent misuse of ManaBalss.lv, a publication fee for politicians’ initiatives was introduced in 2018, alongside a disclaimer accompanying such initiatives. This case study examines recent examples of party-sponsored civic campaigns on ManaBalss.lv from 2018 to 2023, analysing the motivations of politicians and parties in utilising this tool. The analysis draws on the theory of the network society, integrating concepts such as the normalised digital revolution and policy entrepreneurship. To elucidate the legal foundation underpinning the civic-political synergy under study, the research relies on the concept of institutional facts developed by analytical jurisprudence. Sociological jurisprudence complements this approach by providing a contextual analysis of the actors’ engagement within the normative framework of digital civic participation in Latvia. Furthermore, it aids in theorising the potential alignment of legal systems to promote efficient digital civic participation in legislative agenda-setting, contributing to the novelty of this research.The empirical data for this study consists of semi-structured interviews mostly with politicians who have recently used ManaBalss.lv in their campaigns, as well as with those familiar with the platform since its inception in 2011. The research also incorporates data obtained directly from ManaBalss.lv. The analysis reveals a constructive and purposeful synergy between various actors within Latvia’s digital participation ecosystem. The study highlights two primary types of actors: the NGO behind ManaBalss.lv and individual politicians or political parties. These actors are conceptualised as policy entrepreneurs, with civic entrepreneurs and political entrepreneurs representing their respective roles. The study concludes that a hallmark of political campaigns within Latvia’s established digital participation ecosystem is their sustainability and independence from electoral cycles. These campaigns maintain enduring connections to pressing civic society issues within specific policy areas, thereby bolstering the political capital of the actors involved. The findings underscore the pivotal role of the civic component in fostering an efficient civic-political synergy in digital participation. Additionally, through the combined lens of analytical and sociological jurisprudence, this research elucidates an essential aspect of a coherent legal framework for an effective digital participation ecosystem: synergy among the stakeholders.

Adapting european anti-corruption strategies: Israel's experience and opportunities for Ukraine

2024-12-15T13:58:05+02:00

The article analyzes the possibilities of implementing international experience in forming anti-corruption policy in Ukraine. The relevance of the article is explained by the fact that effective fight against corruption is one of the key problems of Ukraine on its way to membership in the European Union and integration with the countries of the global West, as evidenced by the reports of the European Commission, the US Department of State, other official and statistical data of international organizations and officials, in the context of which the experience of Israel as a country whose anti-corruption policy is largely based on European standards can become an effective example for implementation in the national governance. The purpose of the article is to analyze the state anti-corruption strategies of the European Union and Israel, to assess the effectiveness of Israel's implementation of the European experience and to analyze the feasibility of Ukraine's adoption of the anti-corruption practices of the countries analyzed herein. To achieve this aim and fulfill the arising tasks, several scientific methods were used, namely: formal legal, formal logical, comparative, critical analysis, and comprehensive methods. The empirical basis of the study was formed by legislation, judicial and law enforcement practices, official statistical and analytical data of the European Union, the State of Israel, international organizations and institutions, and special economic and legal literature.

The authors examine key aspects of European and Israeli legislation, review the main anti-corruption mechanisms and strategic courses of the states in the field of fighting corruption. A comparative analysis of the anti-corruption strategies of the European Union and the State of Israel is made with a focus on the prerequisites for their formation and the measures taken to implement them. The authors analyze the similarities between the anti-corruption policies of the European Union and Israel, as well as the results of Israel's implementation of European practices. On the basis of this analysis, in a comparative context with the State of Israel, the authors formulate conclusions about the usefulness of applying anti-corruption practices and strategies of the European Union and Israel by Ukraine and assess the prospects for such application.

Legal regulation of organ transplantation in Ukraine and the European Union

2024-12-22T18:58:23+02:00

The purpose of the study is to determine the role of legal regulation of transplantation in Ukraine in its development by comparing it with legal regulation in the countries of the European Union and ways of its possible effective change. For this purpose, the following materials were used: international standards in the field of human organ and tissue transplantation, laws, regulations, and scientific articles. Among the methods and principles of scientific research, comparative-legal, systemic, structural-complex, historical-legal, formal-legal methods, methods of legal forecasting and content analysis were used. Research results: in Ukraine, in recent years, in the field of legal regulation of transplantation, the necessary legal prerequisites for the further development of this important area of medical activity have mainly been created, but they are not always effective. European countries have a stable transplant coordination service, with the highly qualified staff, and posthumous donation is fully regulated. Conclusions: the situation in the studied countries is opposite, both in the field of legal regulation of processes and in its specific results. Ukraine has not created a comprehensive system of successful human organ transplantation. The legal regulation of transplantation was ineffective. In the countries of the European Union, the rational content of the legal regulation of transplantation has led to the creation of an effective system of transplantation.

The principle of separation of state powers: content and purpose

2024-12-31T11:03:31+02:00

The relevance of the article lies in the analysis of the content and meaning of the principle of separation of state powers. The purpose of the article is to analyze the internal content of the principle of separation of state powers, the types of its implementation in different countries, and its significance for the functioning of democratic legal statehood. To conduct the research, philosophical, general scientific, special scientific and legal methods were used, namely: dialectical method, systemic and structural-functional methods, comparative law, categories and techniques of formal logic, universal value-methodological guidelines. Based on the study of scientific developments and state legal practice, it has been determined that the principle of separation of state powers is an integral part of a democratic state, and the exercise of power is delegated to three independent branches of government. State power does not belong in its entirety to any of these branches of government, any body or person, and is concentrated in its source – the people. The delimitation of the competence of the highest state bodies is part of the organizational aspect of the theory of the separation of state powers. It is determined that according to the theory of the separation of state powers, state power is exercised through the organizational division of the institutional, functional, and subjective components of its division. The legally established system of checks and balances ensures the interconnection and coherence of the branches of state power, their interaction and mutual control. This system ensures the unity of state power. The results of this article are the justification of the need to enshrine at the constitutional level the principle of separation of state powers to ensure the sovereignty of the people, democratic and legal statehood, the presence of different models of functioning of this principle depending on the form of the state, legal traditions, historical experience, etc. The provisions of this article have both theoretical and practical significance for the activities of developing a model and consolidating the principle of separation of state powers in constitutional and legal practice.

Participation of the Prosecutor in Non-Criminal Proceedings: ECtHR Case Law and National Context

2024-12-31T12:21:05+02:00

The article analyses the grounds for the prosecutor's participation in civil, commercial and administrative proceedings in Ukraine through the prism of European standards of fair trial. In the article the author uses the methods of analysis and synthesis, systemic-structural and logical-legal methods, as well as the methods of teleological and evolutionary interpretation of ECHR jurisprudence.

Structurally, the article is divided into three parts. In the first part, the author analyses the pan-European approaches to the participation of prosecutors in non-criminal proceedings as reflected in the documents of the Parliamentary Assembly of the Council of Europe (PACE), the Committee of Ministers of the Council of Europe (CoE), the Venice Commission, the Consultative Council of European Prosecutors (CCPE) and the Consultative Council of European Judges (CCJE). In the second part, the author analyses the participation of prosecutors outside the criminal justice system in the context of certain guarantees of the right to a fair trial as provided for in Article 6(1) of the European Convention on Human Rights (ECHR) and the case law of the European Court of Human Rights (ECtHR) on the interpretation and application of this Article. The third part of the article analyses the recent judgment of the ECHR in the case of Shmakova v. Ukraine, which is assessed from the perspective of the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1 to the ECHR).

The article concludes that the current trend in Ukrainian judicial practice towards an expanded interpretation of the grounds for prosecutor's participation in civil, commercial and administrative proceedings is not fully consistent with the European standards of the right to a fair trial (Article 6(1) ECHR) and the right to peaceful enjoyment of possessions (Article 1 of Protocol No. 1 to the ECHR).