Правові горизонти / Legal horizons
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Item Discussion issues of discretionary powers of the Antimonopoly Committee of Ukraine(Sumy State University, 2022) Dudyk, I.The article is devoted to the debatable issues of discretionary powers of the bodies of the Antimonopoly Committee of Ukraine. It is noted that for the Ukrainian legal doctrine and, especially, the practice of law enforcement, discretion is a fairly new legal category and its content is poorly understood. Considering the above, in particular, the concept and types of discretionary powers are considered.The situation of the refusal of the antimonopoly body to consider the case, issued by a letter, which is an act of individual action, which can be challenged in court, is being investigated. An analysis of the judicial review of the proper exercise of the powers of the competition agency is given, which must act not only within the limits of its powers, choosing one or another type of behavior according to the law, but it is also necessary that such behavior is fully aimed at protecting human rights, the general interest of the state and society. give an example of illegal implementation of discretionary powers of the Antimonopoly Committee of Ukraine in which casesItem The state of scientific development of the problem of abuse of civil procedural rights(Sumy State University, 2022) Kuzmenko, K.The article is devoted to the investigation of the stages of formation of domestic civil procedural opinion in view of the problem of unfair procedural behavior and law abuse. The list of scientific problems developed at that time can include, albeit with certain reservations, the problem of abuse of procedural rights, which also received some elucidation in numerous legislative sources and materials of recent judicial practice. The Soviet period of the development of the science of civil procedural law is characterized by an almost complete rejection of already accumulated legislative experience and systemic knowledge, attempts to justify and prove the advantages of the new system and socialist justice, which found its specific reflection in the civil procedural form of realization rights and obligations. This thesis is quite applicable to the problem of abuse of civil procedural rights. For modern Ukraine, the problem of abuse of civil procedural rights has not only not lost its significance, but also sounds even more acute than in the previous stages of the development of judicial power and the lawsuit. A major update of the civil procedural legislation and expansion of the dispositive and competetive powers of the litigant actualizes the issue of the limits of active and lawful behavior of the litigants, responsibility for violation of the order of civil procedural actions, possible types of abuse of procedural rights and countermeasures against them. This is especially relevant in the conditions of essentially unlimited possibilities of the litigants, the origins of which should be sought in the nature of the principles of competition and dispositiveness. As a result, there is a potential possibility of unfair procedural behavior. In this regard, we have open questions, which related to characteristic signs of abuse of procedural rights, the possibility of their division into groups, and legislative regulation remain open.Item The state of scientific development of the problem of human rights communication of the victim in criminal proceedings in Ukraine(Sumy State University, 2022) Rakipova, I.; Zahorodnii, I.; Pidgorodynska, A.; Chernomorchenko, K.; Chipko, N.The article examines the state of scientific development of the problem of human rights communication of the victim in the criminal proceedings of Ukraine.According to Article 2 of the Criminal Procedure Code of Ukraine, the primary task of criminal proceedings and the essence of the criminal procedure are the protection of the victim, their rights, freedoms, and legitimate interests. The right of the victim to human rights communication is understood as the possibility provided by the criminal procedural law for the victim, their representative, legal representative, or successor to receive information about criminal proceedings, exchange information about the state of criminal proceedings, and influence criminal proceedings in order to protect and restore the violated rights, freedoms, and legitimate interests of the relevant participant in criminal proceedings. The problem of human rights communication of the victim is intended to thoroughly and holistically integrate numerous aspects related to the protection of the rights and legitimate interests of the victim. It also strives to direct new impulses of scientific research in the field of protection of victim rights to the improvement of the mechanism for the implementation of relevant rights in the adversarial criminal process based on a victim-centered approach. This article examines the issues that have not been raised in scientific works yet but are essential for criminal procedure theory and law enforcement. The article emphasizes that it is relevant to substantiate and study the victim’s right to procedural communication and the concept of human rights communication of the victim in criminal proceedings. It also highlights communicative equality as a fundamental value, which permeates the rules of criminal law and procedure, the criminal procedure activity of the victim, and communication guarantees and barriers that contribute to or interfere with the latter.Item Problems of qualification of complicity in criminal offenses with a special subject(Sumy State University, 2022) Osadcha, A.; Kharytonov, S.The article is devoted to the study of actual problems of the qualification of complicity in criminal offenses with a special subject. The authors of the article pay special attention to the lack of an agreed point of view in the science of criminal law regarding the recognition of general and special subjects as complicit in a criminal offense and the need to develop rules for the qualification of criminal offenses with a special subject in complicity. The main doctrinal approaches to the qualification of complicity of a general subject in criminal offenses with a special subject are considered. It has been established that the rules for qualifying the actions of accomplices require a differentiated approach and depend on the characteristics of the special subject and the characteristics of other elements of the criminal offense.Item On the issue of determining the subjective composition of environmental constitutionalism(Sumy State University, 2022) Potapchuk, H.The article is devoted to the study and definition of the subjective composition of ecological constitutionalism. It is proved that ecological constitutionalism is actually a new type of general constitutionalism, it is closely related to the phenomenology of the “ecological state”, and based on its nomenological identification, its teleological dominant is the rule of law in the field of environmental protection.It is argued that the formation of ecological constitutionalism as a new type of general constitutionalism determines the formation and development of the elemental composition of specialized legal relations, including the subjective composition of this phenomenology.It is argued that the theoretical aspects of both the ecological state and environmental constitutionalism are at the stage of doctrinal development and appropriate support. Therefore, the structural composition and identification features of the latter, as a new phenomenology of constitutional law (subject-object composition, content, forms of manifestation and implementation, etc.), are only in the state of formation and development. It is for this reason that the issue of their identification is so contradictory and complicated that only the current stage of doctrinal understanding, awareness, comprehension, and recognition can be said to have been reached. And this despite the fact that international and local (national) legal systems, as well as the relevant chronological retrospective, have already discovered the necessary constitutional, legislative, and normative-legal regimentation and regulation for environmental legal relations.It is pointed out that the international community of states deals with the regimentation and regulation of the most important areas and issues of international cooperation and legal regulation between states, borrowing them at the national level as new objects of international. As a result, the international community of states, represented by its bodies, draws a predicative and subjective conclusion based on a systematic analysis of government actions in the field of environmental protection and preservation as well as international institutions’ actions in the specialized field: a) on the emergence, formation and further development of the phenomenology of ecological constitutionalism; b) on the formation of its subject-object composition; c) on the formation of its institutional structure; d) on the main directions of the formation of this phenomenological phenomenon; d) on the prospects for its development and improvement.It is concluded that in a broad (conceptual and subjective) sense, the subjective composition of environmental constitutionalism can be defined as similar to the subjective composition of general constitutionalism, as its specific component; in a narrow (identification and definitive) sense, it can include international organisations, states, their public authorities (including judicial authorities) dealing with environmental protection and preservation, as well as individuals and legal entities that implement, protect or defend their environmental rights.Item Peculiarities of marine environment protection in armed conflicts according to the San Remo Manual on International Law(Sumy State University, 2022) Pereverzyeva, O.The article presents the principles and norms that regulate in detail the relations of protection of marine ecosystems during armed conflicts in accordance with the San Remo Manual of International Law. Military activity at sea has reached such a scale that the area of the marine environment remains polluted, and affects climate change and the sustainability of the natural environment. Taking into account the mentioned circumstances, at the level of the international community are applied various types of Manual for compliance by states with the principles and norms of international humanitarian law, which are developed by highly qualified specialists for interpretation and practical application by the armed forces of the respective countries and are used by other countries by virtue of their authority.According to the prescriptions of the San Remo Manual, parties participating in an armed conflict at sea are obliged to observe the principles and norms of international humanitarian law from the beginning of the use of armed forces, and in cases not provided for by this document or international agreements, civilians and combatants remain under the protection and effect of the principles of international law arising from customs, principles of humanity and requirements of public consciousness.In particular, the legal analysis of the San-Remo Manual of International Law is defined and reflects operational needs and realities, and is therefore often a basis for national practice or an inspiration for the rules of use of force in armed conflict. These rules are often a reflection of existing practices and can be transformed into norms of international law. The Manual are advisory acts, they are related to the principles and norms of international humanitarian law.The leadership of San Remo also introduces the principle of military operations at sea. It is about the imposition of additional obligations on belligerent states not only to observe the supremacy of the law of armed conflict at sea, but also to take into account the rights and obligations of the coastal state, in particular regarding the exploration and development of economic resources of the exclusive economic zone and the continental shelf, as well as the protection and preservation of the marine environment.Item Ways to improve the legal regulation of defense procurement in Ukraine(Sumy State University, 2022) Ocheretnyi, M.The article examines problematic issues of the functioning of defense procurement and their impact on the state’s defense capability. The issue of improving the current norms of the Law of Ukraine «On Defense Procurement» was considered. It was emphasized that in the conditions of a full-scale invasion of the Russian Federation on the territory of Ukraine, the prompt adjustment of state policy in the field of providing for the Armed Forces of Ukraine and other components of the security and defense forces depends on the quality of the current legislation of Ukraine.In domestic science and practice, the issue of defense procurement is new and insufficiently studied, since the relevant legislative act, which regulates the specified sphere, – the Law of Ukraine “On Defense Procurement” – de jure entered into force only on January 1, 2021, and de facto – partially began to be applied from January 1, 2022, since with the beginning of the full-scale invasion of the russian federation on the territory of Ukraine, procurement procedures, stipulated by the specified legal document, were not applied.Inadequate and/or low-quality legislation in the field of defense procurement leads to a decrease in the effectiveness of the security and defense sector in performing its functional duties, and therefore decreases the level of the state’s defense capability. The full-scale invasion of the Russian Federation on the territory of Ukraine requires prompt adjustment of state policy in the field of logistical support of the Ministry of Defense of Ukraine, the Armed Forces of Ukraine, territorial defense forces in their composition, the Security Service of Ukraine, other subjects of the security and defense sector, the introduction of non-standard approaches to the introduction of the latest technologies with the aim of increasing the capacities of these structures. In this regard, legislation in this area should be immaculate and meet modern requirements.Item The system of supervision and control over labor protection in the EU(Sumy State University, 2022) Dei, M.The European system of control and supervision in the field of labour protection is examined in the article. An analysis is also made of the main principles of the European policy in the field of labour protection and a detailed analysis of the state system of labour protection management, taking into account the consequences of Covid19. Within the framework of this scientific study, a detailed analysis of the main EU Directives and the ILO Convention, as a fundamental document regulating the activities of labour inspectorates, was made. The essence and definition of the state labour inspectorate as an executive body and as an intersectoral control body is revealed. Proposals and recommendations are formulated to improve the competence of the labour inspectorate based on the recommendations of the ILO.Item Homocentric approach and migration: challenges in transnational constitutionalism(Sumy State University, 2022) Sofinska, I.; Kovalchuk, V.For more than a hundred years (1914-2022), citizenship, pass-porting, migration and freedom of movement of persons acquired new shades in the context of transnational constitutionalism. The spread of COVID-19 around the world requires a geopolitical, legal and strategic rethinking of the passport as a standardized written (machine) visual personalized anthropo-metric proof of citizenship. The purpose of the article is to try to outline the ob-jectification of people-centrism and migration in the context of modern trans-national constitutionalism. Comprehensive disclosure of modern challenges of migration, taking into account the argumentation of its human-dimension-al and universal character is the primary task of this article. Relevant analytical and statistical expert reports and forecasts give a clear attitude towards the further modernization of the concept of citizenship and human-centeredness of migration. The spectrum of applied methods in the research — from analy-sis to comparative and statistical. The COVID-19 pandemic gave impetus to the transformation of the concept of freedom of movement of a person and free choice of residence in the European Union. The introduction of mandatory use of vaccination certificates increased the freedom of movement of persons, but did not guarantee the security of personal data, non-interference in privacy, prohibition of contact and individual tracking. The presence of a passport as proof of the bearer’s citizenship and a visa (if necessary) is no longer sufficient to exercise freedom of movement. Migration risks and the declaration of mar-tial law in Ukraine in 2022 caused a complete rethinking of the fundamental principles of constitutionalism in the context of ensuring the rule of law and democracy.Item On Some Issues Concerning Section 4.5. “Crimes Against Human Will and Dignity” of the Draft Criminal Code of Ukraine(Sumy State University, 2021) Politova, A.S.; Akimov, M.O.The socio-political and economic situation in the state determines the improvement of the national legal system, considering modern challenges and needs of a democratic society. The Criminal Code of Ukraine, the draft of which is currently under development, is no exception. The purpose of this study is to analyse approaches to the proposed wording of articles of the draft Criminal Code of Ukraine concerning liability for crimes against human will and dignity, identify shortcomings and determine ways to eliminate the latter. To fulfill this purpose, the authors employed the following methods: logical-semantic, comparative, hermeneutical, dogmatic (Aristotelian) and system analysis. The study uses current Ukrainian and foreign legislation, works of researchers from Canada, United Kingdom, Switzerland, Uganda, Ukraine, and the USA, as well as materials of judicial practice. The study proves that Section 4.5. “Crimes Against Human Will and Dignity” of the draft Criminal Code of Ukraine protects the right to freedom and personal integrity. The authors establish that the term “freedom” better corresponds to the object of encroachment and thus is more appropriate. This study offers original definitions of the terms “right to freedom” and “right to personal integrity”. It is argued that the term “representative of a foreign state” in Article 4.5.1. “Meaning of the terms used in this Section” is worded inaccurately. Comments are made on the wording of Article 4.5.4. “Illegal deprivation of person's liberty” concerning the debatable nature of combining acts differing in terms of the primary direct object in one norm – illegal detention, compulsory attendance, house arrest or detention, illegal placement in a psychiatric care institution, kidnapping and illegal deprivation of liberty; the study provides an author's version of Paragraph “b”, Article 4.5.4. The practical value of this study is to highlight scientific opinions on some matters concerning the regulation of crimes against the person's will and dignity in the draft Criminal Code of Ukraine and formulate proposals in this regard, which can be considered by the developer of this project – the Working Group on criminal law development