Court Of Ukraine Research Articles

ЄВРОПЕЙСЬКИЙ СУД З ПРАВ ЛЮДИНИ ЯК ІНСТРУМЕНТ ЗАХИСТУ ПРАВА ВЛАСНОСТІ

Стаття присвячена дослідженню одного з найбільш ефективних міжнародних органів в сфері захисту праві свобод людини – Європейського суду з прав людини (ЄСПЛ), важливою функцією якого є забезпечення неухильного дотримання і виконання норм конвенції державами-учасниками, зокрема, з питань захисту права власності. Зокрема, проаналізовано зміни до національного законодавства в розрізі правозастосовної практики ЄСПЛяк джерела права при розгляді справ українськими судами, в тому числі справ про захист права власності.Автор приходить до висновку, що суд встає на захист тільки тих прав, які прописані в Конвенції та протоколахдо неї. Увага автора звертається на те, що важливість Конвенції обумовлена зокрема широтою закріплених в нійправ і їх тлумаченням. Аналізується прецедентна практика ЄСПЛ у сфері захисту права власності, а також досліджуються основні позиції ЄСПЛ щодо юридичної природи та змісту понять «майно», «власність», «право захиступрава власності», «захист майна» і «законні очікування». Показано, що до власності в контексті практики ЄСПЛможе ставитися значний перелік активів як матеріального, так і нематеріального характеру, зокрема нерухомемайно, рухоме майно, право на пенсію, акції компанії, господарські інтереси, пов'язані з управлінням бізнесом,а також управління клієнтурою ( ділова репутація, нематеріальні активи і т.д.), клієнти компанії, законні розрахунки щодо настання певних обставин, рішення арбітражного органу в зв'язку з суперечкою тощо.Значна увага в роботі приділяється дослідженню поняття і змісту права власності відповідно до Протоколу 1 доЄвропейської конвенції з прав людини, зокрема, в контексті мирного володіння своєю власністю. Розкриваються головні складові принципу правомірного втручання в право власності, а саме: а) чи є втручання законним;б) переслідує воно «суспільний інтерес»; в) чи є такий захід (втручання в право на мирне володіння майном) пропорційним певним цілям.Аналізуючи практику ЄСПЛ, при розгляді справ в яких мова йде про порушення норм ст. 1 Першого Протоколу,автор приходить до висновку, що Суд виходить з аналізу трьох частин норми в їх сукупності: 1) принцип мирноговолодіння майном; 2) порушення такого принципу; 3) контроль за здійсненням права на мирне володіння майном.Паралельно автором розкриваються також і суміжні питання (справедливий баланс, межі дозволеного втручання і т.д.).

ОСОБЛИВОСТІ ПУБЛІЧНОГО АДМІНІСТРУВАННЯ ДІЯЛЬНОСТІ ГОСПОДАРСЬКИХ СУДІВ В УКРАЇНІ

The article is devoted to the disclosure of the peculiarities of public administration of commercial courts in Ukraine. Transformational processes of public administration have led to the separation of a new category for administrative law - public administration, as the activities of authorized entities to ensure, protect and defend public relations an important feature is the public interest. To various problems of functionality of institute of public administration domestic scientists quite actively address the scientific researches. By the way, there is already a certain variation of its categorical-essential understanding within the scientific doctrine. However, in fairness, it makes sense to say that these scientists consider it from different angles, providing different characteristics. Moreover, institution of public administration is constantly in the process of dynamic development. This substantiates gives the author the opportunity to express their own views on the peculiarities of public administration of commercial courts in Ukraine. It is concluded that by defining public administration as the most important form of implementation of management processes in the state, it becomes possible to solve a number of problems. If by functional orientation it is divided into separate components (public and state sector) with further detailing of certain spheres of power and service influence of the state, it becomes clearer how these processes actually take place in practice. The author is a supporter of the idea that public administration is not a form of implementation or organization of power, but a form of implementation of state functions, covering the content of management, regulation, provision, protection and defense of public relations. In the field he studies, public administration is designed to ensure fair, impartial, lawful, implementation of justice. To this it, the state provides commercial courts: first, regulations by law; secondly, organizationally, logistically, financially; third, the ability to self-organize to address issues of its internal organization and external communication.

ESITS as the digital future of the judicial system

The article considers theoretical and legal issues concerning the introduction of a single judicial information and telecommunication system in the process of justice. The relevance of the article is due to the need for an objective understanding of the possibilities and benefits of e-litigation by a wide range of litigants. At the same time, the purpose of the article is a general description of the potential of electronic court services, including the active use of HCJ systems by the courts of Ukraine. On the basis of the analysis of normative-legal acts the essence of electronic services is revealed, prospects of introduction of separate digital technologies in legal proceedings are considered. The construction of ESITS is described. Emphasis is placed on the fact that the need for the introduction of advanced digital technologies is really a matter of time. Based on the practice of using the video conferencing system, it can be seen that judges hold meetings using TrueConf, EasyCon, Skype, Zoom or Webex. It is noted that the use of digital technologies in the judiciary provides convenience and efficiency in the administration of justice. It is recommended that in order to promote and present the capabilities and benefits of the «Electronic Court», as well as other subsystems of the EUCIT to conduct appropriate educational activities throughout Ukraine for the judiciary, as well as for lawyers, legal entities and individuals, for those who provide legal assistance or may be a party to the proceedings. It was concluded that the further implementation of the EITC should facilitate the preparation and conduct of the trial, and the monitoring of the pages discussed in social networks as a means of public opinion, information by legal communities, analysis of publications of legal practitioners shows that in general the EITC perceives positive and expect its full launch.

ВПРОВАДЖЕННЯ ЕКОЛОГІЧНИХ СУДІВ В УКРАЇНІ: ЗАРУБІЖНИЙ ДОСВІД

The article is devoted to the problem of lack of ecological courts in Ukraine. Recently, in the developed foreign countriescountries, there is a tendency to establish specialized courts and tribunals to consider environmental cases and take measures to facilitate access to justice for citizens. Each country has its own specifics related to its legal system and the place given to it in the legal protection of the environment. It is established that in the modern period the provision on existence of three models of ecological courts is widely recognized. The existing models of ecological courts on the example of foreign countries are analyzed. The advantages and disadvantages of the relevant models are outlined, and attention is drawn to the need to use useful foreign experience to create this institute. The competence and jurisdiction of environmental courts are defined and the importance of introducing a separate category of cases, namely environmental cases, is emphasized. The practical significance of the ecological court and its positive achievements on the example of foreign countries are described. Stages of introduction of ecological courts are offered. The necessity of reforming the judicial system within a limited time frame has been proved. The importance of the category of "environmental justice" for the national legal system is emphasized, and therefore the relevant concept is considered through the prism of a general study. It is proved that an effective strategy for the implementation of environmental law should be based on the balance of legislative, executive and judicial powers. It is emphasized that the main advantages of specialized environmental courts are the expertise of the judiciary, public involvement and a wide field for the use of mediation. The tendencies to a constant increase in the number of environmental courts in the world, which demonstrate the efficiency and viability of specialized environmental justice, are substantiated.

Unwirksamkeit von Rechtsgeschäften aufgrund eines Willensmangels – Ein kurzer deskriptiver Überblick über die ukrainische Praxis

This article describes the reasons for invalidity of legal transactions resulting from a defect of, and/or failure in the expression of will for concluding a particular legal transaction. This contribution begins with an introduction to the statutory requirements for declaring such transactions invalid - ranging from wilful deceit, coercion, misapprehension, fraudulent agreement to coincidence of severe circumstances - and focuses primarily on the legal positions taken up by the Ukrainian courts. In conclusion, the article suggests that the current Ukrainian case law with regard to the invalidity of legal transactions is characterized by several inconsistencies.

СУДОВІ ВИТРАТИ, ПОВ'ЯЗАНІ З ВИКОНАННЯМ СУДОВИХ ДОРУЧЕНЬ, ЗВЕРНЕНИХ ДО КОМПЕТЕНТНИХ ОРГАНІВ ІНОЗЕМНИХ ДЕРЖАВ

The article explores the court fees related to the execution of court orders, which are addressed to the competent authorities of foreign states in civil cases with a foreign element. The Civil Procedure Code of Ukraine does not state that the costs associated with the execution of court orders, addressed to the competent authorities of foreign states, are court fees. Therefore, the questions on which of the above fees can be attributed to the courts fees and the procedure for their reimbursement are raised. The importance of clarifying these issues requires the application of the uniform approaches to such cases consideration in Ukrainian courts. It is determined as the main purpose of this article. The case-law shows that in most cases where a court needs to apply to a competent authority of a foreign state, the person concerned must pay for the certified translation of the statement of claim and the attached documents into the official language of the requested state and pay for service of documents. In our conclusions, we propose to divide the court fees associated with the execution of court orders addressed to the competent authorities of foreign states, depending on the procedural actions that are being carried out, and to include the fees associated with the execution of court orders addressed to the competent authorities of foreign states, to the fees associated with the case, namely to the fees associated with other procedural acts necessary to the case consideration or to prepare for its consideration, which will ensure the right of the interested party to reimburse such fees in future.

The child right to be heard in court (using the 1980 Hague Convention in Ukraine as an example)

The Hague Convention on Civil Law Aspects of International Child Abduction in 1980 introduced a mechanism for resolving issues related to the illegal export or maintenance of children by persons closely related to them. According to this mechanism, executive and judicial authorities must take measures to quickly return the child to the state of his usual place of residence. However, such a return may be refused if there are circumstances specified in the 1980 Convention. One of these is the court's identification of the child’s objections to his return, however, provided that the child has reached an age and level of maturity at which his opinion should be taken into account. Therefore, the court of Ukraine finds out the opinion of the child only if he considers that he has reached the required age and level of maturity. However, the abstractness of the wording of this circumstance leads to the fact that when considering return cases in Ukrainian courts, the child’s opinion is often not heard unreasonably (for example, if the court considers the child’s age insufficient to clarify his opinion, or because the defendant does not insist on hearing the views of the child, or because the parties fail to provide evidence that the child has reached the required age and level of maturity). In our opinion, the courts, in order to avoid such errors, should more actively implement the stipulated in Art. 13 of the Civil Procedure Code of Ukraine the right, on its own initiative, to collect evidence regarding the subject of the dispute, in particular, by appointing a psychological examination aimed at determining the level of development of the child. Clarification of the views of the child should also be carried out with mandatory consideration of the provisions of Article 12 of the 1989 UN Convention on the Rights of the Child, which governs the right of a child to be heard. At the same time, it is worth introducing into the judicial practice of Ukraine the approaches enshrined in the Comments of the UN Committee on the Rights of the Child of General Order № 12 (2009) “The Right of the Child to be Heard”, in particular, related to assessing the child’s ability to express his thoughts

Доктрина верховенства права: аналіз стану наукової розробки проблеми в Україні (2010–2020 роки)

Once a new rule of law concept was enshrined in the Constitution of Ukraine in 1996, the Ukrainian scientific doctrine developed two key approaches to understanding it: via its content and correlation of rue and law concepts (so-called integral approach) as well as via clustering rule of law elements, components and requirements (so called element-by-element approach). The 2016 Constitutional reform amended the paradigm of executing justice in line with the new wording of Article 129 of the Constitution of Ukraine: in executing justice a judge is governed by rule of law (the superseded wording read abiding by the law only). Hence a compelling need emerged to determine which of the approaches to understating rule of law is operant and applicable to implementing the said Constitutional reforms in practical terms. The purpose of the article is to incisively analyze the approaches of the Ukrainian law science towards understanding rule of law in order to determine an approach a judge should be governed by while executing justice in compliance with Article 129 of the Constitution of Ukraine. Research methodology combined an array of general scientific (analysis and synthesis, systemic and generalization approaches) and special (historical, comparative and logic) methods. Works of foreign and national scholars, reports and studies on rule of law prepared under the aegis of the Venice Commission as well as legal acts served as theoretical foundation of the study. The scientific novelty of the study is that the conducted analysis of the sources for understanding rule of law indicates significant build-up thereof over the last decade. Analysis of the new sources affords the conclusion that the soft law documents (2011 Report On The Rule Of Law of the Venice Commission and the Rule of Law Checklist adopted in 2016) had a major influence upon the Ukrainian scientific doctrine and case-law. The 2011 Report is the culmination of the European consensus on understanding rule of law via its key elements, i.e. legality, legal certainty, prohibition of arbitrariness, access to justice, respect for human rights, non-discrimination and equality before the law. The fact that the Administrative Procedure Code (2005) and Criminal Procedure Code (2012) of Ukraine enshrine the obligation of the courts to take into account the European Court of Human Rights practices whilst applying the rule of law principle has been conducive for the general courts to conceptualize rule of law via its components (elements, requirements, aspects) reflected in European Court of Human Rights decisions. The 2011 Report and case-law allowed to validate compliance of the approaches to understanding rule of law in the current Ukrainian scientific doctrine with the conceptual approach agreed upon at the European level (in the European Council system) and arrive at a conclusion that the so-called integral approach is erroneous and futile. Analysis of scientific publication over the last several years is indicative of the fact that the Ukrainian scientific doctrine changed its vector and moves away from the so-called integral approach to understanding rule of law towards the element-by-element one, which will most likely become prevailing. Conclusions. In executing justice, the Ukrainian courts should be governed by understanding of rule of law, set forth in the 2011 Report. The choice of an approach towards understanding rule of law appears exhausted, whereas the focus of scientific studies should be shifted to that of analysing rule of law elements or specific requirements with the use of a checklist (so-called benchmarks, see the Rule of Law Checklist)

Application of preventive measures in the criminal process: current issues

The article is devoted to the research of topical issues of application of the institute of preventive measures in criminal proceedings on the basis of the analysis of normative provisions of the current criminal procedure legislation and law enforcement practice. It is emphasized that the Criminal Procedure Code of Ukraine 2012 (hereinafter - the CPC of Ukraine) provides for an updated system of preventive measures, unlike the CPC of 1960. Attention is drawn to the degree of restriction of human rights and freedoms in the application of preventive measures. The purpose of this article is to analyze topical issues regarding the grounds and procedural order for the application of preventive measures in criminal proceedings and to offer optimal ways of solving them. The author has come to the conclusion that at this stage criminal procedural legislation in terms of regulation of preventive measures needs improvement. The article investigates the types and reasons for choosing preventive measures, which determined the author's position on the need to consolidate at the legislative level the definition of the term "preventive measures". The scientific positions of different authors on the issues related to the application of preventive measures are analyzed, in particular, the views of the processional scientists on the concept of "preventive measures". This made it possible to demonstrate the existence of a rather wide range of scientific proposals for defining this concept at the legislative level. Attention is drawn to the fact that, in practice, the right of a person to liberty and personal integrity when choosing a preventive measure in the form of detention is quite often unduly restricted. The materials of the case law, legal provisions of the ECtHR, Letter of the High Specialized Court of Ukraine on Civil and Criminal Matters "On Some Issues of Preventive Measures During Pre-trial Investigation and Proceeding in the Procedure Provided by the Criminal Procedure" Code of Ukraine of 04.04.2013 are used.

ДИНАМІКА ІМПЛЕМЕНТАЦІЇ УГОДИ ПРО АСОЦІАЦІЮ УКРАЇНИ З ЄС: ПЕРСПЕКТИВИ ТА НОВІ ВИКЛИКИ

The entry into force of the Association Agreement with the European Union was a fateful event for the contemporary history of Ukraine. Currently, both components of the association: political one, which consists in spreading European values to Ukraine, and economic one, which involves Ukraine's integration into the EU internal market in exchange for legislation approximation, are without exaggeration fundamental factors for further development of Ukraine. The results of the previous years of the Association Agreement implementation testify to both significant achievements and a number of problems in Ukraine's fulfillment of its association with the EU “homework”. The article is devoted to the analysis of dynamics and the recent trends in the process of the Agreement implementation. As a result of the political changes that took place in Ukraine in 2019, including the election of a new president, parliament and government, European integration work on the implementation of the Association Agreement began in the new conditions. The improvement of the national institutional mechanism designed to ensure better coordination of work on the implementation of the Agreement between the competent authorities is among the positive trends in the process of its implementation. The fundamental legal principles and basic directions of work on Agreement updating are analyzed. It is proved that the prospect of updating has become an effective impetus to improve implementation processes. By initiating such an update, in order to strengthen its position in the negotiations with the EU, the Ukrainian side is forced to objectively assess the effectiveness of the Agreement implementation in certain areas and to intensify the completion of processes that are significantly behind. A new challenge in the process of implementing the Association Agreement was the emergence of the pandemic factor in 2020. The introduction of national quarantine and the incidence rate have significantly shifted priorities and affected European integration processes, both within Ukraine and at the EU level. At the same time, it was stressed that the situation to ensure the Rule of law, in particular, the fight against corruption is the main challenge not only to obligations fulfillment under the agreement, but also to the entire European integration policy of Ukraine. It is noted that the decision of the Constitutional Court of Ukraine to repeal a significant part of anti-corruption legislation threatens the further integration of Ukraine with the EU. It was stressed that the future of not only Ukraine but also the region as a whole depends on whether the Association Agreement with the European Union will continue to serve as a transformational force capable of overcoming the weakness of the Rule of law within the country.

Amicus Curiae Institute in the Constitutional Process

Given the specifics of constitutional proceedings, the question of the peculiarities of evidence in a constitutional trial is becoming increasingly important. With the adoption of the Law of Ukraine ‘On the Constitutional Court of Ukraine’, for the sake of completeness of the trial, amicus curiae play a significant role in proving – experts and specialists who, by giving opinions on written requests of the judge-rapporteur in the case, reveal the peculiarities of socio-political discussion on complex issues arising in the course of constitutional justice. The purpose of this work is to study the amicus curiae institute, the features of its legal regulation in Ukraine and abroad, as well as to investigate the role of the institute in the constitutional process of Ukraine. The object of the research is the amicus curiae institute in the constitutional process of Ukraine. By examining the amicus curiae institute in the constitutional process of Ukraine, we can conclude that it plays an important role in the completeness of the judicial review of the case. On the one hand, the ‘friend of the court’ is a lobbyist who, thanks to his conclusions, seeks the necessary judicial decision. On the other hand, thanks to the amicus curiae institute, when considering cases that may affect an indeterminate number of persons, civil society (such as NGOs, etc.) can help ensure that the judgment is given in the light of all the circumstances relevant to the cases. However, despite the legislative consolidation of the research institute in the constitutional process of Ukraine, some procedural provisions require further refinement with the use of international experience and advanced scientific works.

JUDICIARY AND JUDICIARY OF UKRAINE IN THE CONTEXT OF THE NATIONAL MENTALITY

Purpose. The purpose of the article is to identify the fundamental values of the Ukrainian people, on the basis of which not only his mentality, but also all national-state institutions, including institutions of justice and justice, as well as to identify trends of influence of these values on the further development of legal foundations of the judiciary and justice of Ukraine. Method. The methodological basis of the study was the combination of principles and methods of scientific knowledge. For the objectivity of the research, a set of general scientific, special-legal, special-historical and philosophical methods of scientific knowledge was used. Results. At the current stage of reforming the institutions of the judiciary and the judiciary, the notion of fair justice, which is formed on the basis of popular national culture, plays an important role. Given the functioning of the modern Constitutional Court of Ukraine, whose representatives are formed by delegation to the Verkhovna Rada of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine and the judiciary, this institution needs radical reform as it has repeatedly made political rather than constitutional decisions. Scientific novelty. Based on the analysis of the national tradition of justice, it is established that the Constitutional Court should be formed by public organizations, which are formed by legal experts. There are several higher scientific institutions in Ukraine which have departments, constitutional law research institutes. Their representatives should delegate the best experts in the constitutional right to competitive selection to fill vacancies in the constitutional court. Practical importance. The results of the study can be used in further historical and legal studies, preparation of special courses.

PUBLIC CONTROL AS A SEPARATE AREA OF INTERACTION BETWEEN ADMINISTRATIVE COURTS AND THE PUBLIC

The article is devoted to the analysis of public control as an independent direction of interaction of administrative courts with the public. It is proved that the formation of civil society in Ukraine is the basis for effective public control over administrative courts. Features of modern civil society in Ukraine are characterized. The concept of public control over administrative courts is presented as an independent direction of interaction of administrative courts with the public. The content of public control as an independent direction of interaction of administrative courts with the public is revealed. The features of public control over administrative courts in Ukraine are considered. General and special principles of public control over administrative courts are defined. Forms of exercising public control over administrative courts have been established. Methods of conducting public control over administrative courts are revealed. Problematic issues of public control over administrative courts have been identified. The ways of improving the activity of civil society in Ukraine in exercising public control over the activity of administrative courts are outlined. The ways of increasing the effectiveness of civil society interaction with the administrative courts of Ukraine are outlined. The peculiarities of the foreign experience of civilian control over the judiciary are analyzed. Ways of borrowing foreign experience in exercising public control over the activities of the judiciary are proposed. The directions of improvement of public control over administrative courts are defined.

CREATION OF THE HIGH COUNCIL OF JUSTICE OF UKRAINE IN THE CONTEXT OF STRENGTHENING THE INDEPENDENCE OF JUDICIAL POWER

The article discusses the reasons and prerequisites for the establishment of the Supreme Judicial Council of Ukraine as a state authority, whose main tasks are to ensure the independence of the judiciary, as well as to form a highly professional and virtuous corps of judges. Aspects of expanding the functions of the High Council of Justice in relation to the status of judges in Ukraine are analyzed, and also the correspondence of these tendencies to foreign experience, European in particular. The comparative analysis is carried out and the main distinctive features of the Supreme Council of Justice and the High Council of Justice in the mechanism of ensuring the independence of judges and courts in Ukraine are determined, the influence on strengthening the independence of the judiciary in the order of formation of relevant bodies is substantiated, as well as the possibility of interference with their activities by representatives and other branches of government.

THE CONFLICT-OF-LAWSREGULATION OF DETERMINING THE ORIGIN OF A CHILDBORN IN INTERNATIONAL MARRIAGE

The present article examines legal regulation of determining the origin of a childbornin marriage complicated with a foreign element. Research subject aims atexploring the conflict-of-law rules set forth in the Ukrainian Private International Law Act and rules of treaties on legal aidbetween Ukraine and other countries. The author undertakes an analysis of conflict-of-law rules and considers their application by Ukrainian courts. Based on the research it is concluded that Ukrainian legislation needs to be supplemented by alternative conflict-of-law rules, which would expandthe possibilities of law enforcement bodies in terms of employmentmore flexible approach in determination of competent, aimed at protectingthe best interests of a child, law while ascertaining the child’s origin.

SOME ISSUES OF ESTABLISHING THE REASON FOR TECHNICAL DAMAGE TO THE PROPERTY AND DETERMINATION OF THE MATERIAL DAMAGE AS A RESULT OF THE PURPOSE

According to the Resolution of Plenum of the Supreme Court of Ukraine of 27. 03. 1992 № 6 «About practice of consideration by courts of civil cases on claims for compensation of harm» , considering claims for compensation of harm, courts are guided by that the harm caused to the person and property of the citizen is subject to compensation in full by the person which caused it, provided that actions of the last were illegal, between them and damage is the direct causal connection and there are wines of the specified person
 The article presents some of the problematic issues that arise in the study of the causes of technical damage to property and the definition of material damage as a result of flooding. The relevance of the subject of the article, which is emphasized by the availability of appropriate techniques developed by specialists of state specialized institutions, in particular, forensic experts of the Kyiv research Institute of forensic examinations and the Odessa research Institute of forensic examinations. The definition of the current legislation on material damage is given.
 The article also points to the need to establish an appropriate defendant in civil disputes that arise when considering material damage, in accordance with the current provisions on the maintenance and maintenance of the housing stock. Fixing of damages is carried out by means of the act of pouring, full-scale inspection, photo fixation.
 A comprehensive study of the initial data during the survey allows us to provide a clear, impartial opinion on the technical causes of damage and material losses due to flooding.
 The above information can be used in judicial construction and technical expertise on technical causes of damage and material damage due to flooding.

The Protection of Civil Rights and Interests in the Court

The creation of an effective mechanism capable of ensuring the secure existence of society, the defense and protection of human rights is one of the priority tasks of reforming the legal system of Ukraine. In the arsenal of state remedies designed to guarantee rights and freedoms of an individual, the legitimate interests of society and the state itself, courts have the leading role. Judicial protection is the most effective means of protecting rights and legitimate interests of civil legal entities in the world-wide practice, the level of judicial protection remains the most important indicator of the legal nature of the state and the democracy of society. According to the results of the research, authors have revealed the peculiarities of the interpretation of concepts of ‘protection’ and ‘protection of civil rights in court’, have proposed their own definition of the concept of ‘protection of civil rights and interests in court’. The leading problems of protection of civil rights and interests in the courts of Ukraine have been analyzed; the controversy of the relation between interest and subjective civil law in the context of their effective defense in court has been covered; further directions of improving the protection of civil rights and interests in the courts of Ukraine have been identified; it has been argued that the existence of an effective mechanism for the protection of subjective civil rights and legal interests in court is an indispensable condition for the formation of a true civil society and the rule of law

The prospects of introducing the mechanisms of legislative regulation of mobbing in Ukraine

The authors of the article have considered the notion of «mobbing» being a destructive element of a work collective performance, its causes and effects both for the employees and for the entire organization. It has been ascertained that this phenomenon is widespread in many countries of the world in particular in the developed ones that study this problem not only from the point of view of personnel management and psychology but take into account the legal estimation concerning the amount of responsibility of mobbers and bringing them to court for unlawful treatment of a particular person. It has been emphasized that the system of the legislative mechanisms of preventing mobbing and providing legal protection of employees and workers from this phenomenon in Ukraine in the conditions of the market relations development that requires the most effective use of the labour resources for enhancing the efficiency of an organization operation performance is to be improved. The experience of the developed European countries in the sphere of the legislative regulation of the psychological pressure in the workplace has been studied in comparison with the current Ukrainian labour legislation in question. It has been urged that the European experience in addressing mobbing in the workplace is to be adopted in the Ukrainian Euro integration processes. The most important factors of the psychological terror of employees and workers have been determined and the individuals who most often suffer from the psychological pressure have been characterized on the basis of statistical data.The judicial practice of settling the cases of mobbing in the workplace in Ukrainian courts have been analyzed. The ineffectiveness of the system of the legal protection of employees and workers as well as the need to improve it have been stressed. The authors have suggested the optimal ways of adapting Ukrainian labour legislation to such modern social challenges as the need to eliminate mobbing in the workplace and its effects which is the main direction in safeguarding the constitutional rights of employees and workers to a safe and healthy workplace environment stipulated by the Ukrainian legislation in force. The prospects of developing legislative regulation of the psychological violence have been paid attention to.

Using a Civil Judicial Collateral Estoppel as a Means of Self-Defense for Entrepreneurs in Administrative Tax Disputes

In an environment where governments require more and more money to fulfill social obligations, and the business opportunity to pay taxes is decreasing, there are dangers of pressure from the authorities on business entities to increase payments. Therefore, the current state of relations between enterprises and the state is characterized by an increased level of state intervention in the affairs of enterprises, including control over their activities. This requires the development of protective preventive mechanisms in economic activity, which should be aimed at resolving issues of protecting the rights of business entities in relations with state bodies and preventing violations of these rights. The paper aims to clarify the develop protective preventive mechanisms in economic activity, which will be based on using a civil (economic) judicial collateral estoppel. Tasks of the study: a) determine the strategies, methods and techniques for the use of favorable court practice; b) to prepare recommendations on the use of favorable court practice. The methodic of research is based on the systematization of approaches to the consideration of tax disputes in courts, of ways and methods of effective use of favorable court practice for the implementation of protective preventive mechanisms in economic activity. When doing work studied and summarized Decisions of European Court of Human Rights, 3000 decisions of Ukrainian courts, and the authors' own court practice. The research results – it developed a methodology allowing to provide of effective use of favorable civil (economic) judicial practice for the implementation of protective and preventive mechanisms in the economic activities of taxpayers to prevent and decide tax disputes. The widespread use of these measures by entrepreneurs will ensure the formation of judicial practice in civil (economic) courts, which would confirm the legality of deals and, accordingly, their protection from modification in the interest of greater taxation, which would make it possible to show evidence of such legality of deals in administrative courts.

Using a Civil (Economic) Judicial Collateral Estoppel as a Means of Self-Defense for Entrepreneurs in Tax Disputes

In an environment where governments require more and more money to fulfill social obligations, and the business opportunity to pay taxes is decreasing, there are dangers of pressure from the authorities on business entities to increase payments. Therefore, the current state of relations between enterprises and the state is characterized by an increased level of state intervention in the affairs of enterprises, including control over their activities. This requires the development of protective preventive mechanisms in economic activity, which should be aimed at resolving issues of protecting the rights of business entities in relations with state bodies and preventing violations of these rights. The paper aims to clarify the develop protective preventive mechanisms in economic activity, which will be based on using a civil (economic) judicial collateral estoppel. Tasks of the study: a) determine the strategies, methods and techniques for the use of favorable court practice; b) to prepare recommendations on the use of favorable court practice. The methodic of research is based on the systematization of approaches to the consideration of tax disputes in courts, of ways and methods of effective use of favorable court practice for the implementation of protective preventive mechanisms in economic activity. When doing work studied and summarized Decisions of European Court of Human Rights, 3000 decisions of Ukrainian courts, and the authors' own court practice. The research results – it developed a methodology allowing to provide of effective use of favorable civil (economic) judicial practice for the implementation of protective and preventive mechanisms in the economic activities of taxpayers to prevent and decide tax disputes. The widespread use of these measures by entrepreneurs will ensure the formation of judicial practice in civil (economic) courts, which would confirm the legality of deals and, accordingly, their protection from modification in the interest of greater taxation, which would make it possible to show evidence of such legality of deals in administrative courts.