Law Institute Research Articles

The concept of admissibility of evidence in criminal proceedings

Based on the analysis of current legislation and available scientific sources, the article clarifies the concept and content of admissibility of evidence in the criminal procedure of Ukraine. It is established that the admissibility of evidence can be interpreted as: a requirement of law; a procedural form; an institution of criminal procedural law; a conclusion regarding a particular piece of evidence after appropriate evaluation; a characteristic (property) of evidence. Admissibility characterizes the possibility of using factual data about the crime committed for evidence. Violation of the procedural form of obtaining evidence does not allow using it for proof, since the use of evidence obtained in accordance with the requirements of law in the process of proof is not only a guarantee of an objective examination of criminal proceedings and making the right decision thereon, but also a guarantee of observance of the rights and legitimate interests of representatives of all parties to criminal proceedings during the collection of evidence. The author proves that admissibility is one of the key characteristics (properties) of evidence. Each of these properties should be considered as an independent construction with its own internal structure and functional integrity. The main difference between admissibility and other properties of evidence is that admissibility is based not only on the provisions of the Criminal Procedure Code of Ukraine, but also on the provisions of the Constitution of Ukraine. It is determined that, based on the provisions of the CPC of Ukraine and the Constitution of Ukraine, evidence is considered admissible if: it is obtained by a party to criminal proceedings authorized to conduct procedural actions; it is obtained from a proper source of information about the facts; it is obtained as a result of conducting only the procedural actions specified in the law; the procedural form of conducting procedural actions and consolidating their results is observed; and human rights, freedoms and legitimate interests are ensured. Based on the analysis, the author proposes to: 1) to restate Article 86 of the CPC of Ukraine «Admissibility of Evidence» in a new wording; 2) to supplement Article 84 of the CPC of Ukraine «Evidence» with a third part.

Correlation between Legal Institutions of Patent Law and Regulation of Medicinal Products Circulation

Due to the specifics of the industry, pharmaceuticals belongs to one of the areas where patent protection of the results of intellectual activity is most in demand and has received the greatest development. However, patent law and legal regulation of the circulation of medicines are developing in fact in parallel, which raises many questions in practice. The paper examines the problems of incoordination of these areas of law, in particular on issues of terminology, specifies the points of intersection between the legal mechanisms established in them. The author elucidates the features of prolongation of patent protection of the invention relating to the drug as a product, as well as the relationship of this prolongation with the state registration of the drug under consideration. Particular attention is paid to discussion issues on the advisability of introducing into the Russian legal system the so-called patent linkage and the Bolar provisions in the legal regulation of the circulation of medicines commonly applied in foreign law. The author makes proposals on the basis of an analysis of judicial practice, foreign and domestic experience in finding a legal compromise between the interests of generic companies and patent holders — manufacturers of original drugs — to facilitate appropriate changes to Russian law.

Reconciliation of the guilty party with the victim as a basis for exemption from criminal liability: material and procedural aspects

Based on the analysis of the provisions of national legislation, the essence and features of the institution of reconciliation between the guilty and the victim as a basis for exemption from criminal liability were determined. The conditions that must be met for release are summarized, namely: a person commits a criminal offense for the first time; a person who has committed a criminal misdemeanor or a negligent non-serious crime; reconciliation between the perpetrator and the victim of a criminal offense; compensation for the losses caused by the person or elimination of the damage caused. It has been established that reconciliation between the perpetrator and the victim should be understood as the behavior of individuals whose purpose is to resolve the criminal-legal conflict and achieve a positive result, which is established by the reconciliation agreement. It has been determined that reconciliation between a suspect, an accused and a victim is a legal institution aimed at humanizing criminal justice, ensuring the protection of the rights of the injured party, and implementing the principle of justice. The main characteristics of reconciliation in the procedural aspect are: voluntariness; compensation for damage caused by a criminal offense; exemption from criminal liability. The problems that arise in the practice of applying the institution of reconciliation are outlined, including: insufficient awareness of the parties about the possibility of reconciliation, the conclusion of a reconciliation agreement and its legal consequences; insufficient motivation to correct the suspect, the accused and avoid committing criminal offenses in the future; abuse of the right to reconciliation. In addition, the authors emphasize the need to increase the level of legal education of citizens regarding the institution of reconciliation; introduce mandatory participation of professional mediators in complex cases; clarify the legislation and establish the obligation to compensate the victim until the court approves the reconciliation agreement. Based on the research, it was concluded that, by its nature, reconciliation between the guilty and the victim is a complex institution of criminal and criminal procedural law. For its effective application, it is necessary to improve the regulatory framework and ensure the proper implementation of procedural guarantees.

Compensation for damage or elimination of damage caused by a criminal offence

The article is devoted to the study of the problems of protection of the legitimate rights and interests of persons who have suffered from criminal offences, effective restoration of their rights, timely compensation and redress for damage caused by a criminal offence. It is stated that it is in the interests of the victim not only to punish the person who committed a criminal offence, but also to seek restitution and pecuniary compensation for damages and non-pecuniary damage, and to be able to return to normal life and feel protected from future unlawful acts. It is determined that the subject of compensation for damage or elimination of material damage may be not only the perpetrator of the criminal offence, but also other persons, including parents, children, and close relatives. If preferential criminal law institutions are applied to a person, conditions are also imposed on him/her that he/she must fulfil, namely, to compensate for the damage caused or to eliminate the damage caused. As for the public apology, in this case, only the person who caused the material or moral damage can be the subject. The question arises if the offender does not voluntarily compensate for the damage or eliminate the damage caused, it is necessary to ensure the victim’s right to compensation. The issue of creating a special fund to compensate and reimburse for the damage caused by a criminal offence has been raised on several occasions. Foreign practice shows that in some countries such funds have been established and ensure the violated rights of victims who have suffered damage or losses as a result of criminal offences. The novelty in the Criminal Code – compensation for damage by way of restitution or compensation - is a positive development, which will ensure recognition of the rights, freedoms and legitimate interests of the victim. If the victim’s right is violated, the perpetrator of the criminal offence will be obliged to make restitution or compensation. If it is established that a person found guilty of a deliberate criminal offence involving the use of violence cannot pay compensation, the damage determined by the court verdict shall be compensated to the victim by the state in cases and in the manner prescribed by law, at the expense of the State Fund for Compensation to Victims.

Peculiarities of legal regulation of the placement of apiaries on the lands of the forest fund of Ukraine

The article examines the legal aspects of the placement of apiaries on the lands of the forest fund of Ukraine, which is of great importance for the development of beekeeping and maintaining ecological stability. Legislative norms are analysed, in particular, the Law of Ukraine «On Beekeeping» and the Forest Code of Ukraine, which regulate the procedure for using land for beekeeping. It is established that forests play a huge role in beekeeping, since a significant part of the forest ecosystems of Ukraine is a high-quality and productive honey collection. Key problems of legal regulation are highlighted, including insufficient regulatory regulation of the criteria for the placement of apiaries and control over their activities. Particular attention is paid to the impact of martial law on the possibility of placing apiaries in forests, in particular, restrictions introduced to ensure the safety of citizens. It is proposed to review restrictions on the placement of apiaries on forest lands in those regions of Ukraine that are located far from the line of hostilities and from the border with russia and belarus, and in which relative safety can be guaranteed when visiting the forests. The paper substantiates the need to maintain free access to forestlands for beekeepers as a tool to support entrepreneurship in rural areas. This will contribute to the preservation of traditional forms of beekeeping and support for entrepreneurial initiative in rural areas. Regulation of the placement of apiaries should maintain a balance between environmental sustainability, economic interests of beekeepers and social responsibility for the safety of citizens. Based on the analysis, it is proposed to improve the regulatory and legal regulation of beekeeping through the development of a specialized institute of law in the field of beekeeping, which will ensure the regulation of not only agrarian and legal relations, but also ecological and legal relations and will contribute to the ecological security of the state. The conclusion is made about the feasibility of partially revising the bans on access to forests in safe regions to promote the development of the industry.

Courts in the Midst of Conflict: Social Conflict and Legal Institutions

ABSTRACT Social conflict often stems from disputes over the distribution of political power, public goods, and state services. Courts can help resolve disputes before they escalate to social conflict or violence. However, judiciaries have varying levels of judicial independence, corruption, litigation costs, and procedural complexities which may hinder their ability to prevent social conflict. Analyzing countries across Africa, we find that courts are best able to reduce social conflict risk when they are more independent or when they have civil or Islamic law institutions, as opposed to common law. Surprisingly, judicial corruption is also associated with lower risk of social conflict.

Plurilateralism and the Future of International Investment Law

Abstract Despite the absence of a multilateral investment agreement, states have negotiated a wide range of plurilateral investment agreements. Indeed, most of the interesting changes in investment law today are properly conceived of as plurilateral initiatives. These initiatives have made progress where multilateralism has stalled by doing two things. First, they have not tried to address the core of substantive investment law, focusing instead on procedural and ancilliary issues such as dispute resolution, transparency, and investment promotion. Second, they have been attached to institutions, such as the World Trade Organization and World Bank, that are not investment law institutions. This lack of institutional focus on investment law creates two benefits: a) it breaks difficult linkages between substantive investment law and procedural or ancillary issues, allowing progress to be made on the latter, while b) still embedding the resulting agreement in an institutional framework that promotes negotiation, effective implementation, and compliance.

Analysis of the conditions for the implementation of the ecosystem approach in the economy in Russia

The author discusses the ecosystem approach in economics. The interest in it from economists and social scientists is indicated. The features of this approach are characterized: the need to combine systems that can organically interact with each other, the emergent effect arising from such a combination, consideration of ecosystems not only in the logic of systemic but also environmental approaches, the processes of self-organization and "rational symbiosis" inherent in ecosystems, the need to establish new relationships with comprehensive management systems. The question is raised about the possibility of implementing an ecosystem approach in the context of Russian sociality and economy. To answer it, the author, firstly, examines the main features of the European economy: taxation of citizens of the state, economic institutions of production, economic law and market, computing technologies and economic models. In addition, he draws attention to the two-layered economy, which includes market and non-market relations. Secondly, the author discusses the hybrid nature of the Russian economy. According to the author, the requirements for ecosystems are in conflict with the existing organization of the Russian economy. The peculiarity of the first is the construction of organic connections: territorial, industrial, managerial, organizational, ensuring the necessary conditions, the realization of humanistic and environmental ideals, etc. And the established connections and relationships were established on other grounds: benefits, corporate interests, power relations, traditions. Theoretically, ecosystems can be summed up under the concept of open self-developing systems, for which the external environment is set by the state. Economics also contributes to the creation of an ecosystem economy, within the framework of which economic models of ecosystems should be built, allowing access to new computing technologies, without which a new economy will also never take place.

Bayesian Network approach in analyzing the sustainability of the cultural industry ‘the sacred’ Gringsing Weaving

Bali is a popular tourist destination in the world, and the main entry point for foreign tourists to Indonesia. Bali is also an area in Indonesia that is famous for producing woven fabrics, which have various characteristics in each region. Gringsing weaving is one of the traditional Balinese fabrics from Tenganan Village which is considered sacred and its manufacture takes quite a long time, and is carried out with special techniques that are very difficult. This study aims to analyze and map factors related to the sustainability of the Gringsing weaving cultural industry, using the Bayesian Network approach. The results of the FGD with related stakeholders mapped the structure that forms Gringsing industrial sustainability, such as income, social capital, incentives, natural capital, custom law, and traditional institutions. Further analysis was carried out using the Bayesian Network technique and GeNIe tools. In forming the structure of thinking about the sustainability of the Gringsing Weaving industry, the related factors include culture, traditional institutions, natural capital, social capital, to economic factors, such as income and special incentives from the government. Specifically, the role of traditional institutions and government (through special incentives) was analyzed, and it was found that both factors can increase the probability of the sustainability of the gringsing weaving industry. The results of the sensitivity analysis also show that the sustainability of the Gringsing weaving industry is highly influenced (sensitive) to the increasing role of traditional institutions.

Leader’s management decision-making style and emotional intelligence of higher education students studying in the speciality “Law Enforcement”

Leadership qualities are a complex set of cognitive properties, personal qualities and behavioural skills. It is relevant to study how the leader's style of decision-making and emotional intelligence abilities are related to future law enforcement officers. The empirical study involved 40 higher education students studying in the senior years of the Military Law Institute of the Yaroslav Mudryi National Law University, specialising in law enforcement. The following psychodiagnostic techniques were used: the questionnaire “Assessment of Management Decision-Making Styles” and the test “Emotional Intelligence”. Statistical processing of the data was carried out using Spearman’s rank correlation and Mann-Whitney U test. Three styles of managerial decision-making were identified in the surveyed cadets: 35 % had a conniving style, 25 % had a marginal style, and 20 % had a situational style. The other participants of the study did not have a leading style of managerial decision-making. It has been found that the highest level of emotional intelligence is in the group of respondents with the style of managerial decision-making “indulgence”, and the lowest level of emotional intelligence is in the group of cadets with the situational style of managerial decision-making. It has also been revealed that a leader with developed emotional intelligence is not focused on emphasising his or her status as a leader, but, on the contrary, provides a certain freedom of action to his or her subordinates. It has been noted that the developed components of emotional intelligence are important, but not decisive, for making managerial decisions by future law enforcement officers. The developed emotional intelligence of a leader contributes to his/her choice of such poles of managerial decision-making as “liberal” and “production of a problem situation (decision-making situation)”. A leader’s developed emotional intelligence is to some extent related to self-confidence, high motivation to achieve, and responsibility for the actions of subordinates. It has been suggested that in the process of psychological training future law enforcement officers should develop such a component of emotional intelligence as understanding of emotions, which increases the likelihood of favourable options for making managerial decisions by leaders.

Fulfillment of Victims’ Rights to Handling Child Victims of Sexual Violence in Buleleng Regency

This research aims For analyze fulfillment of victims' rights in Handling case child victims of violence sexual in Buleleng Regency. With use approach juridical-empirical, this research explores implementation of the legal protection provided to child victims of violence sexual, as well as evaluate effectiveness mechanism handling carried out by the party authorities, including apparatus enforcer law and child protection institutions. The results of this study indicate that although there is adequate regulation, still there is constraint in implementation, such as limitations source Power humans and their lack mentoring psychological. This research is expected can become input for maker policy For increase efforts to protect and fulfill the rights of children who are victims of violence sexual.

"NIZOLI VA OʻZ-OʻZIDAN HAQIQIY BOʻLMAGAN BITIMLAR: YANGI KLASSIFIKATSIYA "

"The article examines the significance of transactions, which are an important institution of civil law of the Republic of Uzbekistan, the role of free will and expression of will in recognizing them as void, and an analysis of the classification of transactions based on their invalidity. The article also presents a new classification of invalid contracts, which is recommended to be regarded as an abstract principle rather than a casuistic. Several arguments are provided to justify the developed classification, reflecting suggestions for improving the current civil legislation. The main reason for dividing invalid contracts in civil law into disputed and automatically void contracts is to distinguish their consequences. However, after analyzing theory and practice, the author attempts to prove that this important basis is insignificant. Additionally, the article discusses the specific nature of the void of contracts, the subject of proof in each case of void (composition), the position on the statute of limitations, the circle of persons who have the right to file a claim, individuals who have the right to demand the automatic invalidation of the contract in the claim, and others. In the article, the methods of comparison, analysis-synthesis, and system analysis were widely used. "

РОЛЬ МЕЖДУНАРОДНЫХ ИНСТИТУТОВ В ОБЕСПЕЧЕНИИ НАЦИОНАЛЬНОЙ БЕЗОПАСНОСТИ

The purpose of the article is to study the problem and the role of international law and international institutions in ensuring national security. The authors, based on the analysis of legislation, public speeches and theoretical and legal positions presented in the domestic legal science, draw conclusions about the content of the problematic of this issue, the need to overcome crisis phenomena in the role of international institutions and organizations in this field. Having described some international institutions in which the Russian Federation takes an active role, attention is drawn to the futility of an isolation policy towards our state. The article focuses on the six principles put forward by the President of Russia for building a modern international security architecture, the true implementation of which can bring both global and national security closer. Based on the analysis, the conclusion is formulated about the need to overcome crisis phenomena in international law and the functioning of international organizations as a necessary condition for ensuring national security.

Restorative justice as a legal category and institution of law: conceptual aspects of essence and content

The article considers the phenomenon of restorative justice. Its essence, content and significance as a legal category, categories of law are determined. The necessity of accelerating the pace of development of social relations that require legal influence, the search by the State within the framework of its realization of the human rights and legal renewal function of new forms and methods of realization of state power and the fulfillment by the State of its duties through interaction with civil society. It is about strengthening the mutual responsibility of all subjects of social relations and the possibility of the state delegating certain powers to such institutions, in particular, the possibility of resolving the conflict in the field of law in an extrajudicial way - through various forms of restorative justice. Appearing within the framework of criminal legal relations, as a form of extrajudicial resolution of the dispute and resolution of the conflict, the category of "restorative justice" has now become universal, since it can be applied within different types of procedural legal relations: civil, criminal, labor, administrative, family, marriage, economic. Consideration of restorative justice as a reflection on the legal conflict as a legal compromise and legal consensus is proposed; legal means and form of human rights protection and restoration of its violated rights; a variety of social practices and forms of interaction between the state and civil society. In the aspect of increasing the efficiency of the legal regulation of public relations, the importance of conceptualizing the doctrine of restorative justice as a certain social practice is emphasized, which performs important from the point of view of ensuring and maintaining law and order, protecting the interests of society and the state, tasks and functions, and is gradually institutionalized in the form of an intersectoral institution of law. Key words: restorative justice, category of law, legal category, institution of law, legal conflict, legal compromise, legal consensus.

Parliamentary capacity in Ukraine's post-war public governance system

Today, there is an obvious need to study the scientific and theoretical foundations for building a sustainable management paradigm in diverse functional contexts, including economic, political, social, resource, and information. The article aims to analyse the institutional capacity of parliamentarians in Ukraine's post-war public administration system. The study defines the basis of institutional capacity, composed of several institutions that affect the functioning of public authorities. The article analyses the characteristic features of the national public administration system, as well as potential opportunities for its improvement in the direction of a prompt and effective response to internal and external determinants. It substantiated the need to ensure the institutional field is adequately secured, considering the public and non-governmental sectors' needs to legitimise these legal institutions. The author examines the differentiation of the concepts of institution and institution against the background of mutual influence, where the first definition is positioned as tangential to the formation and functioning of institutions of society and law, and the second is a component of the management system composed of public authorities. The synergistic effect of the institutional and institutional blocks is identified. The vector of the post-war development of the national governance paradigm in the direction of institutional capacity of parliamentarism and related risks and challenges is determined.

S. A. Golunsky: lawyer, scientist, diplomat

The article is dedicated to the life, work and scientific heritage of the famous Soviet scientist, lawyer and diplomat, Corresponding Member of the USSR Academy of Sciences, Doctor of Law, Professor Sergey Alexandrovich Golunsky (1895–1962). The main stages of the scientist’s professional path are considered: from studying at a gymnasium and Moscow university to the heights of government and scientific careers. The most significant publications of the author are analyzed. Some positions expressed by S. A. Golunsky are assessed from the point of view of relevance for the development of modern criminal procedural doctrine, modern legislation and law enforcement practice. When preparing the article, materials from S. A. Golunsky's personal file were used and other documents from the archives of the Institute of State and Law of the Russian Academy of the Russian Academy of Sciences.

Memorial Law: the problem of conceptualization and the limits of regulatory regulation

This article conducts an interdisciplinary study in the field of the intersection of interests of memory policy and Memorial Law, which includes a legal analysis of concepts similar in meaning, an assessment of the relevance and necessity of legalizing terms related to memory policy and Memorial Law, and a study of the regulatory limits of national memorial legislation. The purpose of the study is the conceptualization of Memorial Law and the limits of its legal regulation. The analysis of approaches to the concepts of “Memorial Law” and “Memorial Law” and their relationship is carried out; the positions of opponents and supporters of memorial legislation are considered; the definition of memorial law as an interdisciplinary institute of national legislation and international law is given.

Отечественная социология и научное сообщество в кумулятивном пространстве СоцИса: к 50-летию журнала

The inseparable connection between the development of sociology in the USSR and Russia and the publication activity of the fundamental journal in this scientific field, “Sociological Studies”, is emphasized. Being an important substantive and institutional part of domestic sociology, it acts as a kind of cumulative space integrating the scientific community with the subject field of this discipline itself. The text is devoted to the anniversary events dedicated to the 50th anniversary of the scientific journal “Sociological Studies”: the grand opening, the scientific conference «Sociology: Yesterday, Today, Tomorrow (on the 50th anniversary of the journal “Sociological Studies”)» and the XXVI Kharchevsky Readings “Theoretical Sociology: Past, Present, Future” (October 21-23, 2024, Moscow). The course of events and presented scientific reports are given, including those made by the staff of the Institute of Philosophy and Law of the Siberian Branch of the Russian Academy of Sciences.

Objects of Civil Rights: the Problem of Technological Neutrality of the Legislator

Introduction. The severity of the problem of technological neutrality of legislation is due to the difficulties of predicting the negative consequences of the use of technologies at the stage of development and the complexity of implementing social control at the stage of their widespread dissemination, the need to create such legal regimes under which the objects of civil rights – goods, works and services – will be competitive. Theoretical Basis. Methods. Scientific works on ensuring technological neutrality in the functioning of information systems, when using the radio frequency spectrum, and the provision of audiovisual services are analyzed. Monitoring the state of law enforcement acts allowed us to note the rare use of the category by jurisdictional authorities. Methods of formal logic, dogmatic and comparative methods, modeling – made it possible to draw conclusions regarding the prospects for using the concept. Results. Regulatory legal and regulatory technical regulation are the most important tools to stimulate the use of modern technologies. The introduction of rules on electronic digital signatures into the procedural law regulating the state registration of real estate, and into the procedural laws – rules on the use of video conferencing and electronic services for filing documents – stimulated the use of relevant technologies not only by public authorities, but also by citizens. By establishing requirements for objects of civil rights that are in circulation, including the sphere of the contract system designed to meet the needs of public legal entities, the state strives to ensure an acceptable level of technological neutrality of solutions. Discussion and Conclusion. The content of many modern legal norms and institutions indicates that the legislator should systematically move away from the idea of technological neutrality in order to protect the interests of citizens. Evidence of this is the rules on compensation for damage caused by sources of increased danger, insurance of civil liability of vehicle owners, and the institution of patent law. Technological neutrality is a category, the use of which in regulatory legal and technical acts of broad significance cannot be welcomed, and at the same time it is a concept, the use of which during the development of technical standards is justified.

International criminal law as a catalyst for environmental peacebuilding

This paper examines the intersection of peace, justice and sustainability by exploring the potential of international criminal law to contribute to environmental peacebuilding goals, which include sustainable governance of natural resources and cooperation to establish lasting peaceful relations within and between States. Despite the merits of existing studies in shedding light on the concept of environmental peacebuilding and investigating its relationship with international law, little attention has been paid by international legal scholarship to the nexus between international criminal law and environmental peacebuilding. Therefore, this paper aims to fill a scholarly gap by providing some reflections on the harmful interconnection between armed conflict and the environment, arguing that the norms and institutions of international criminal law can contribute to the achievement of environmental peacebuilding goals at every stage of the conflict cycle: before, during and after a conflict. After introducing the concept of environmental peacebuilding and highlighting its connections with international criminal law, the paper examines how the latter can promote environmental peacebuilding goals in the pre-conflict phase by preventing the misuse of natural resources; during conflicts by preventing and reducing damage to the environment; and in the post-conflict phase by promoting reparation and reconciliation as prerequisites for lasting peace and justice. The last section discusses the main findings of the paper, which uphold the hypothesis that international criminal law can act as a catalyst for environmental peacebuilding processes.