Domestic Legal Systems Research Articles

The impact of e-democracy on social development in Ukraine: theoretical and practical approach

Problem setting. The article reveals the peculiarities of the introduction of e-democracy in Ukraine, highlights the main tools of activity and gives the best practices of functioning. The perception and readiness of the society for the transition to the e-platform is shown. To achieve the goal set in the work, such general theoretical research methods as analysis, synthesis, induction, deduction, comparison were used to determine the content and components of the concepts of “e-democracy” and “e-governance”; a systematic approach to generalize the main methodological approaches to the formation and essence of electronic democracy; methods of positive and normative analysis to develop recommendations for improving the e-democracy transformation model. And special (systematization, abstraction, decomposition) methods of scientific knowledge, with the help of which the article examines the theoretical foundations of the digital economy and carries out a critical comprehensive analysis and systematization of scientific and practical approaches to the interpretation of the essence of the principles and goals of e-democracy. Analysis of recent researches and publications. Problems of democracy and involvement of the public in policymaking by means of information and communication technologies were studied by C. Armstrong, Y. Harlan, S. Coleman, D. Lathrop, D. Robinson, L. Ruma, E. Felten, S. Schacht, D. Shuler and others However, the first attempts to bring politics online were made by engineer-enthusiasts at the request of the authorities in order to invent an alternative to the outdated routine practice. Such experimental projects as “E-Politics” in Minnesota (1994) and “Online Democracy for Citizens” in Great Britain (1996) were the first to build social networks and create discussion forums. Some local authorities in the Scandinavian countries, Canada, and Great Britain promoted and supported e-democracy projects, but most of them lacked legal regulation and resource provision. Тarget of the research. The article analyzes the concept of e-democracy, e-government. The international experience and developments in the field of e-democracy are determined in order to identify positive legal developments in the field of e-democracy. The actions of the Ukrainian government and parliament in the field of promoting e-democracy in Ukraine are analyzed. The activities that need to be regulated by the Ukrainian government for the further implementation of edemocracy are identified. Article’s main body. The purpose of the article is to systematize the concepts of e-democracy and e-government, to analyze international experience in the field of e-democracy in order to introduce into the domestic legal system positive legal experience in the field of regulating democratic processes, for the further development of new legal norms in the field of e-democracy and e-government , taking into account the need to form a new holistic worldview among its citizens based on global trends in the development of law, the science of public administration, etc. It was concluded that e-democracy should occupy a worthy place and enter the agenda of radical political reforms and become a component of public administration, especially at the current stage in the conditions of martial law. The study of the problem of e-democracy and e-governance, and the implementation of these institutions in Ukraine, is based on the approaches available in the Council of Europe regarding the essence, structure, features of e-democracy and its implementation. Conclusions and prospects for the development. E-democracy cannot be considered a panacea for all problems of democracy or public communications, but it undoubtedly contributes to the development of two, at the present stage, inseparable historical projects democracy and the Internet. Therefore, e-democracy should occupy a worthy place and enter the agenda of radical political reforms and become a component of public administration, especially at the current stage in the conditions of martial law.

THE TWO-STEP METHODOLOGY FOR THE IDENTIFICATION OF GENERAL PRINCIPLES OF LAW

AbstractThe two-step methodology for the identification of general principles of law deriving from domestic legal systems, consisting of a comparative analysis followed by a transposability test, seems accepted as the undisputed methodology in the current work of the International Law Commission on the topic. This article examines whether this two-step approach finds reflection in the practice of and before the PCIJ/ICJ and in international legal scholarship. The analysis finds that judicial practice does not entirely follow these two steps, but the method is widely upheld in doctrinal writing. The article argues that the decision to codify this two-step methodology can be viewed as progressive development by the Commission, and may signify the crystallization of this method of identification of general principles of law.

Patentability of Computer Program Algorithms in the G20 States

Ubiquitous computerization and digitalization are contributing to the unprecedented growth of the software market. Computer programs are protected as subject of copyright law in international law and domestic legal systems. However, copyright law does not protect the interests of the copyright holder from borrowing ideas and algorithms which often have agreat commercial value. This circumstance has prompted the legal science and law enforcement practice of the most developed states to justify the possibility of protecting computer programs and their algorithms. The leading states chosen for in this paper are the G20 states. The relevance of this choice is due to the following: 1) The G20 states account for 86% of global GDP; 2) All world leaders in computer software development are G20 members; 3) All BRICS states are G20 members; 4) The law-and-orders of the G20 states are relevant to all existing traditions of the legal protection of intellectual property in the world. The legal systems of the G20 states follow one of three approaches according to the criterion of patentability of computer programs and their algorithms. We call the first approach “neutral.” It includes States which legislation does not explicitly prohibit the patenting of computer programs, but computer programs themselves are not mentioned among the subject matters of inventions. The second (“positive”) approach includes those states which legislation explicitly classifies computer programs as patentable inventions. On the contrary, the third (“negating”) approach includes states where it is legally established that computer programs as such are unpatentable. The results of the research demonstrate that there is no direct correlation between the way of solving the issue of patentability of computer program algorithms in different legal systems and the state’s place in the global IT market. For example, the United States and China take aneutral approach, Japan takes apositive approach, the EU Member States and India take anegating approach. We believe that the most flexible approach is aneutral approach from the point of view of patent law policy. The most liberal and consistent approach is the positive approach presented by the Japanese legal system. Finally, the negating approach is the most controversial and at the same time widespread among the G20 and BRICS states.

МІЖНАРОДНІ ЗАСАДИ КРИМІНАЛЬНО-ПРАВОВОГО ЗАХИСТУ ОБ’ЄКТІВ ІНТЕЛЕКТУАЛЬНОЇ ВЛАСНОСТІ

The article is devoted to issues of international legal principles in the field of implementation and protection of intellectual property objects in the aspect of influence on the processes of law enforcement and law-making in the field of criminal law of domestic legal systems. It is determined that the following are important for the criminal protection of intellectual property rights: the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the Convention on Cybercrime, the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Hague Agreement Concerning the International Registration of Industrial Designs, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration to them, and others. The relevance of this issue is due to the fact that, taking into account the processes of globalization of the world economy, as well as the process of integration of the legal systems of the countries of the world, the study of the international principles of criminal and legal protection of intellectual property is of great importance at the current stage of Ukraine’s development. The author determines that the concept of “intellectual property” should be understood as a type of property as a generic concept. Based on the analysis of the norms of international acts on the criminal protection of intellectual property rights, a number of problems have been identified that must be resolved in legislation, as well as legal science and practice. These problems include: 1) the problem of determining in which sections of the criminal codes the norms establishing criminal liability for infringement of intellectual property rights should be located. It is proposed to combine the norms establishing criminal liability for infringement of intellectual property rights into one section “Criminal offenses against intellectual property” in the Criminal Code of Ukraine; 2) the problem of determining which objects of intellectual property should be protected by the norms of criminal law. Key words: criminal liability, intellectual property, criminal legal protection, World Intellectual Property Organization, European Union.

Rethinking direct effect and its evolution: a proposal

AbstractThis article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it.

Foreword

Abstract Followers of the International Criminal Court (ICC) interested in theories of liability were looking forward to the Appeals Chamber judgment in the Ntaganda case, in which Bosco Ntaganda was convicted of war crimes and crimes against humanity in the Democratic Republic of the Congo (DRC). The conviction was based on the theory of indirect co-perpetration through an Organized Structure of Power (OSP). This theory resulted from a specific interpretation of the ICC Statute, based on German legal scholarship. The theory has been criticized for its breadth and lack of legal basis. It has also been embraced as the theory of liability that best captures the liability of those who mastermind crimes. When the judgment was delivered on 30 March 2021, the appellate bench was divided, which arguably leaves the theory still contested. This symposium discusses indirect co-perpetration from perspectives hitherto not discussed. Two articles look at how the German theory of Tatherschaft that lies at the basis of indirect co-perpetration, has been absorbed in some domestic legal systems (Japan and Columbia). One article discusses the multi-layered concept of control that is at the heart of the theory. In another piece, adopting a law and sociology approach, authors explore the creative processes that produced indirect co-perpetration. Lastly, one author discusses the viability of an alternative to indirect co-perpetration: instigation.

Adaptation of International Law in the Chinese Constitution and Legal System: New Developments

Abstract The relationship between a national constitution and international law reflects a nation’s self-positioning in the international legal regime and its reception of international law in the local context. The adaptation of international law in the Chinese Constitution and legal system determines China’s engagement and participation in the international law regime and indicates the country’s treaty performance. This paper provides an overview of the position and status of international law, including both treaties and customary international law, in China’s current 1982 Constitution and domestic legal system. It also analyzes current practice of international law in China’s judicial practice. By reference to recent developments in the PRC Constitution and domestic laws, especially the 2018 Constitutional Amendment, this article attempts to provide a contextual analysis on the standing of international law in the Chinese Constitution and legal system, in the hope that the understanding of the interplay between international law and the Chinese constitutional and legal system will help scholars and policymakers to pursue opportunities for cultural communication and reconciliation to seek normative consensus in the formation of international law.

Гарантии гражданских прав: единичные способы защиты и их системная связь

Introduction: the target orientation of the domestic legal system of society is the protection of human and civil rights and freedoms. Constitutional and civil law principles express the central idea of the domestic legal regulation – the need to protect civil rights and legitimate interests of particular persons. The current legislation of the Russian Federation does not contain a legal definition of ways to protect civil rights, limiting itself only to listing specific ways to protect civil rights in Article 12 of the Civil Code of the Russian Federation. At the same time, there is no unified approach to this issue in civil law either. Purpose: to identify and establish the fundamental signs of civil rights protection; to define civil rights protection as an institution of civil law; to disclose the essence of a single way of civil rights protection; to identify the systemic signs of ways of civil rights protection and establish their systemic relationship. Methods: the methodological framework for the research is a set of general scientific and specific scientific methods of studying phenomena and processes, including: the dialectical, formal legal (dogmatic) methods, the method of comparative jurisprudence, the concrete social, comparative legal, historical and logical methods. The research is based on the method of analyzing the current Russian legislation and the law enforcement practice. The systematic approach allows establishing the integrity of the system of ways to protect civil rights, the hierarchy of its structure, as well as structuring its elements. Results: the substantiation of the protection of civil rights as the central idea of the domestic legal regulation by studying the place of the system of ways of civil protection in the civil law regulation system. This study is based on the correlation of the concepts of “protection” and “defense”, the definition of the institution of civil rights protection through the functions of civil law, the justification of the subjective right to protection, the consideration of various classifications of ways to protect civil rights and the identification of forms of protection. Conclusions: as a result of the conducted research, it is found that through the protection of civil rights, the preventive and/or protective functions of civil law are implemented; the understanding of ways to protect civil rights as certain behaviors of an interested person is revealed, and the definition of a single way to protect civil rights as one of the ways to realize the right to protection is given; it is revealed that the ways of protection civil rights in the institutional aggregate form a special integrity, that is, a system that serves to achieve a single goal; a systemic relationship of the ways to protect civil rights is established.

Miejsce umów międzynarodowych w porządku prawnym Ukrainy

An important factor in shaping the legal system of an independent democratic state is to define the place of its international obligations in the domestic legal system. International law binds states that are bound by its norms governing their cooperation within the international community. Therefore, it is necessary to refer to the problem of the relation of international law to internal law by analyzing the regulations of the Ukrainian legislation and the international conventions concluded by it. The subject of the analysis are the provisions of the Constitution of Ukraine of 1996 and the Act on International Agreements of 2004 as well as the provisions of the Vienna Convention on the Law of Treaties of 1969, to which the Ukrainian Soviet Socialist Republic acceded in 1986 and to which Ukraine is now a party.

Wielding the Gavel or Balancing the Scales? Domestic Legal Systems and Post-Conflict Justice

This study analyzes the institutional variation across domestic legal systems, with a focus on common law system’s adherence to precedent and reduced recourse to judicial deference, as well as on the degree of independence afforded to courts. These institutional qualities of judiciaries provide the opportunity for courts to play a more active role in the implementation of post-conflict justice, increasing uncertainty for other policymakers concerning the ultimate contours of post-conflict justice processes. To reduce such uncertainty, policymakers ensconced in these types of institutional contexts will be less likely to implement post-conflict justice. Using data from the Post-Conflict Justice dataset, we find that states with common law systems are less likely to pursue and implement post-conflict justice compared to states with civil or Islamic law systems. Moreover, independent courts will be less likely to pursue mixed or restorative forms post-conflict justice, though the impact of judicial independence is weak overall.

Stability Function of Bilateral Agreements Concluded Between the State and Churches and Religious Communities in Slovakia in the Field of Guaranteeing Freedom of Religion and Freedom of Conscience

By concluding treaties on respect for the principles in the Slovak legal system with the Holy See, as well as registered churches and religious communities in Slovakia, the purpose of Article 10(2) of the Charter of Fundamental Rights of the European Union (in force as EU law since 2009), according to which the protection of conscience is regulated by the Member States in their domestic legal systems (in addition, they include an international treaty or an equivalent legal norm, which is in the Slovak legal environment applies to national agreements) is described in the contribution. The new contractual concept of an agreement with the Holy See on conscientious objections is in accordance with the explanatory memorandum to this provision of the Charter and corresponds to the constitutional traditions and the development of law in the field of protection of freedom of conscience and religion in Slovakia. In its essence, in addition to compatibility with the law of the European Union, as well as the constitutional law of the Slovak Republic, it is a significant stabilizing element in the legal order of Slovakia.

The concept of digitalization: national and international approaches

Problem setting. Digitalisation is one of the defining trends in human civilization, forming a more inclusive society and better governance, expanding access to health care, education and banking, improving the quality and coverage of public services, expanding the way people work together, and enabling people to benefit greater variety of goods at lower prices. The Covid-19 pandemic has demonstrated the importance and need for digital technologies for the well-being of the population and the development of economies. Today in Ukraine a large number of normative legal acts are being developed for the development of the digital economy, development concepts and programs are being adopted. However, the processes of digitalization of Ukrainian society have not yet been finalized and require further research and implementation of new tools and measures, in particular taking into account international legal practice in this area. Analysis of recent researches and publications. For a comprehensive understanding of the concept of digitalization and digital transformation should refer to the teachings of prominent domestic and foreign scholars. In this regard, among which are the studies of A. McAfee, S. Brennan, D. Kreiss, P. Weil, S. Warner, Yu. O. Nikitin, O. A. Burbelo, G. O. Tkachuk, G. G. Чмерук, В. Р. Kralich, I. A. Burlakova. Their research can be used as a basis for defining the concept of digital transformation. Target of the research. The purpose of the article is to systematize the concept of digitalization, to analyze the international experience in the field of digitalization of society for the introduction into the domestic legal system of positive legal experience in the regulation of digital relations; outline the ways and measures that are necessary for further work for the effective use of digitalization tools to improve economic and political relations in Ukraine. Article’s main body. The article analyzes national and international approaches to the nature and significance of digitalization, and the actions of states in the direction of further implementation of digitalization of society. It is determined that in the countries of the European Union the estimated indicator of the level of technological development and the degree of introduction of innovative technologies in the digital society is used – the DESI Index. It is emphasized that digitalization is not limited to the exclusive use of technology; it is characterized by a change in culture, integrated into all areas of work, and a transformation in the management of different teams. Domestic achievements that were formed under the influence of globalization processes and modern international legal practice in the field of digitalization are analyzed, namely, institutions established in Ukraine and adopted regulations in the field of digitalization of Ukrainian society. It is concluded that the state regulation of the development of the digital sector of society requires the formation and action of institutional, legal, economic, organizational, socio-psychological and technical-technological mechanisms with a wide range of methodological tools for each of them. Conclusions and prospects for the development. Thus, the state regulation of the digital sector of society requires the formation and operation of institutional, legal, economic, organizational, socio-psychological and technicaltechnological mechanisms with a wide range of methodological tools for each of them, comprehensive and systematic application of which will increase quality. , competitiveness, manufacturability of products, optimizes the processes of production and marketing; activates the implementation of the digital transformation of existing and the formation and active development of new high-tech industries, which together will ensure the dynamic and effective development of the digital society sector in Ukraine

Why Due Regard Is More Appropriate than Proportionality Testing in International Investment Law

Abstract Global regulatory standards of due diligence, regulatory coherence, and due regard are emerging in public international law. Investment law has been concerned to settle upon the most appropriate regulatory coherence tests for application in the arbitration of regulatory disputes. Candidates have included proportionality, rationality, and reasonableness tests. This article argues instead for reliance on the due regard standard in conjunction with reasonableness or rationality testing. This will more appropriately reflect the nature of investment treaties as inter-State bargains. Further, responding to arguments for the adoption of proportionality on the basis of comparative public law, the article demonstrates that proportionality is not established as a general head of review in common law jurisdictions including England, Australia, Canada, New Zealand and South Africa. At the same time, the application of the due regard standard can have much in common with procedural proportionality testing as seen among these domestic legal systems and elsewhere.

생태계 교란생물 방제를 위한 법제 일고 - 일본 외래생물법상 방제 규정과의 비교·검토를 중심으로 -

The damage caused by the inflow, settlement, and spread of foreign species is increasing due to active international exchange and the growth of the pet industry due to the development of trade and transportation means. Korea is also experiencing damage from a variety of exotic animals and plants, including foreign plants such as prickly gourds and pig grass, as well as fish, blue roads, bullfrogs, and nutria. Accordingly, each country is making enormous efforts to block the inflow of foreign species at the border level, prevent the settlement and spread of foreign species, and control their damage. On the other hand, in the case of Korea, it is not properly responding to ecosystem disturbances caused by the inflow and settlement of foreign species.BR Above all, the domestic legal system does not stipulate that even if the cause of ecosystem damage or biodiversity loss caused by foreign species can be identified or the person involved can be identified, the responsible cause must take measures such as control or bear the cost.BR The Domestic Forest Act has regulations related to control, and the Plant Disease Control Act also has regulations. The definition of control and control method of the Livestock Infectious Disease Prevention Act are not separately stipulated, but there are regulations on livestock prevention such as killing.BR On the other hand, the Biodiversity Conservation and Utilization Act stipulates measures such as control, but details of the control subject, the contents of the control, plans, and procedures cannot be prepared.BR On the other hand, in the case of Japan, Chapter 3 of the Foreign Life Act stipulates the control of specific exotic organisms. Chapter 3 stipulates control by the competent minister, control by a person other than the competent minister, collection of responsibility for the cause and the burden of the cause, confirmation and certification of control, and cancellation thereof. Accordingly, through comparative legal analysis, institutional improvements related to control procedures, plans, financial support, pre-control surveys, private participation guarantees, and follow-up management were reviewed.

Force Majeure and Investment Arbitration

Abstract This article addresses force majeure in international investment arbitration as it interacts with relevant domestic, commercial and international laws. As a classic excuse for non-performance of obligations in most domestic legal systems and a ‘general principle of law’, force majeure is also widely accepted in public international law as a ground for precluding wrongfulness of the acts of State under the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). In investment arbitration practice, force majeure has been invoked to justify non-performance of contractual obligations or treaty obligations. For the former, the contractual force majeure clause is crucial, while for the latter, investment treaty tribunals tended to refer to ARSIWA Article 23 on force majeure. The case law has demonstrated that the conditions for the invocation of force majeure as a circumstance precluding wrongfulness under the ARSIWA are much narrower and stricter than the conditions set for invoking force majeure in the context of contract or commercial law. The article argues that the different standards applied by treaty and contract arbitration tribunals are rooted in the distinct systems of applicable law, which traditionally did not cause many problems or attract much attention. With the increasingly blurred boundaries between domestic and international, private and public laws, the legitimacy and sustainability of such conventional distinction might demand reconsideration. It suggests to explore a more consistent interpretation and application of force majeure claims under the two legal systems, and one way forward is to allow more flexibility in the interpretation and application of ARSIWA so that the international rules on force majeure could be better aligned with force majeure under commercial law.

The Application of International Laws in Bangladesh: A Critical Evaluation

This article discusses the incorporation and implementation of international laws, specifically international treaties and agreements into the domestic legal system of Bangladesh. The position of international laws in the legal system of Bangladesh and their authority to interpret and challenge domestic laws has been focused upon. To that effect, the constitutional provisions dealing with international law along with various authoritative court decisions have been analyzed. Additionally, status and implementation of customary international laws in Bangladesh have also been absorbed. How the norms of customary international laws are being incorporated and implemented have been discussed in detail. The analytical methods of research have been carried in the piece highlighting judicial decisions and international instruments. This article is based on secondary materials with the key sources including textbooks, reports, journal articles, conference papers, daily newspapers and online documents. The study has also relied on international instruments, domestic laws and decided cases of Apex Court of Bangladesh. The findings show that as a democratic country Bangladesh needs to incorporate for the sake of its own people the provisions of international treaties into domestic laws. This is a gradual but perilous process which would take more than political goodwill to materialize. As a young nation, it still has a long way to go to level its regulations up-to the international standards. The positive indication is that the supreme courts of Bangladesh are increasingly realizing and interpreting international instruments through their decisions pressurizing the government to make positive changes in the legislations.

Constitution and International Law: A New Model of Interaction

The paper analyzes the constitutional reform in Russia with an emphasis on the constitutional amendment on the interaction of the norms of international law and national legislation within the domestic legal system. Constitutional provisions and doctrinal approaches enshrined there play an important role in ensuring stable and predictable international relations. The paper discusses the possibility of applying two classical doctrines on the relationship between international and national law (dualistic and monistic) to the definition of the characteristics of amendments to Article 79 of the Constitution of the Russian Federation. The authors substantiate the necessity of introducing constitutional amendments from the point of view of the development of international relations and the maturation of domestic political, economic and social conditions over the past decades. Some doctrines of interpretation of international treaties of interstate bodies and the possibility of determining the parameters of their execution in the legal system of Russia are considered. It is concluded that the new model of interaction between international and Russian law corresponds to the principle of sovereign equality of states enshrined in the UN Charter. The authors summarize that the supplement of the constitutional norm under consideration clarifies the constitutional model of the relationship between international and Russian law. It allows for the full implementation of the provisions of the Constitution of the Russian Federation, as well as the execution of international legal acts, including decisions of interstate bodies that comply with the Constitution of the Russian Federation, which eliminates possible threats to destabilize the rule of law of the state. Thus, we are not talking about adopting a radical model of the primacy of national law over international law, but rather about adapting the doctrine of dialectical interaction between Russian and international law to the needs of modern development of our state.

Virtual currency services providers – certain issues of legal status

Regarding the fact that digital assets services providers are new in domestic legal system, the aim of this paper is to point out certain aspects of its status, in the part related to virtual currency. Firstly, authors deal with legal sources of domestic law and, with the aim to provide broader context, EU law. There-after the notion of virtual currency services provider is explained along with the way of obtaining that status. In the central part of the paper, the analysis of the services in which those subjects are entitled to engage is given as well as specific conditions that need to be fulfilled for authorized provision of services. Finally, the ways of termination of status are presented. Authors conclude that a cautious approach has been used in regulating those subjects due to the nature of its services and the risks, aiming to minimize possibilities for abuse.

The European Court of Human Rights Practice as an Administrative Law Source in the Domestic Legal Discourse

The article is devoted to the study of the European Court of Human Rights practice implementation into the national legal system by domestic legal science, in particular, administrative law. It is noted that the issue of the European Court of Human Rights decisions implementing into the national legal system arose before Ukraine in 1997 when the Convention for the Protection of Human Rights and Fundamental Freedoms was ratified.
 It is noted that a significant role in the process of national law improving belongs to the European Court of Human Rights, which is the body monitoring compliance with the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms by the Member States.
 Emphasis is placed on the fact that to date there has been no comprehensive study of the European Court of Human Rights practice in the administrative law sources system, which would be based on Western legal culture
 in Ukraine. It is noted that the European Court of Human Rights decisions nature is a “challenge” for the domestic legal system, that did not recognize case law as a source of law and, moreover, the interpretation of the category “human rights” by Strasbourg court is qualitatively different from its understanding by domestic legal doctrine, still being largely based on the perception of rights as opportunities guaranteed by law. Until now, the principle of legality was the fundamental law principle, and the justification of the decision taken in the administrative process was reduced to a reference to the prescription of the normative legal act. Legal provisions set out in judgments of the European Court of Human Rights are based on other legal postulates.
 The analysis of scientific sources, the object of study of which is the European Court of Human Rights practice as a source of administrative law, is being tcarried ou.
 It is suggested that the existing scientific research of the European Court of Human Rights as a source of administrative law be classified into two groups: scientific papers, the subject of which is the European Court of Human Rights practice; scientific papers, the subject of which is the impact of the European Court of Human Rights practice on the national legal system, the immanence of features of forms of lawforms to this practice, etc.
 It is concluded that the analysis of scientific developments of the European Court of Human Rights practice as a source of administrative law by domestic legal science allows us to conclude about the relevance of the chosen topic, its lack of research and the need for elucidation.

The Role of Judicial Rulemaking in Improving Legislative Regulation in the Russian Federation

The problem of determining the meaning, place and role of judicial rulemaking in the domestic legal system has remained relevant for many years. There is no uniform approach to the issue of establishing the influence of judicial rulemaking on legislation. Based on the analysis of various points of view of legal theorists and judicial practice of the Constitutional Court of the Russian Federation and the Supreme Court of the Russian Federation, the author defines the concept of judicial rulemaking and direct and indirect impact of rulemaking of higher judicial instances on the legislative regulation. The paper examines the acts of judicial rulemaking containing a direct instruction to the legislative body concerning the need to amend the current regulatory framework and the acts that do not contain such an instruction, but regulating a certain sphere of public relations and eliminating defects in legislation. The author concludes that judicial rulemaking influences legislative regulation permanently, contributing to its harmonization, ensuring uniformity of understanding and application of legal norms, stability and unity of judicial practice. The practice of the higher courts is examined as an essential factor in improving legislation in general, as a basis for new legislative initiatives. It is pointed out that it is necessary to take into account acts of judicial rulemaking in developing draft laws, as well as to return the institute of addresses of the Constitutional Court of the Russian Federation. Further development of the national system of law, according to the author, is possible only with the establishment of a balance between rule-making activity of legislative and judicial bodies, as well as with the establishment of mechanisms for interaction between the two branches of government.