Legal Techniques Research Articles

Уголовно-правовые основы противодействия незаконной и необоснованной госпитализации в психиатрический стационар

The subject of the research is public relations in the field of ensuring the physical freedom of the individual from illegal and unjustified hospitalization in a psychiatric hospital by criminal legal means. The author reveals certain problems of the emergence of a criminal law prohibition provided for by Art. 128 CC, its evolution and application. The research methodology is based on the general historical method and particular methods of legal analysis and legislative technique. As a conclusion, the author proposes a solution to theoretical problems regarding the establishment of signs of corpus delicti under Art. 128 of the Criminal Code, and also formulates proposals for improving the current criminal legislation and the practice of its application.

ПРОБЛЕМИ ЗАСТОСУВАННЯ АНТИКОРУПЦІЙНОГО ЗАКОНОДАВСТВА В ЗБРОЙНИХ СИЛАХ УКРАЇНИ ПІД ЧАС ДІЇ ВОЄННОГО СТАНУ

The article analyzes the problems of applying anti-corruption legislation in the Armed Forces during martial law. It is outlined that "application of anti-corruption legislation" is understood as a legal process of implementation of anti-corruption legislative prescriptions, by transformation of a certain concrete life situation into a legal act by authorized subjects. Four main problems of the application of legislation in the Armed Forces during martial law are singled out. The first is the imperfection of the legal framework. It is noted that in the domestic legal system there is a significant specific weight of normative and legal prescriptions that relate to the main issues of anti- corruption regulation, but they belong to secondary legal acts, which is incorrect from the point of view of legal technique. In addition, it was noted that some legal prescriptions contain legal deformations - collisions, gaps, etc., which, in particular, can provoke an unscrupulous law enforcer to take advantage of such shortcomings. Examples of such shortcomings are given. Such a type of deficiency as the imperfection of mechanisms for the implementation of anti-corruption legislation is analyzed. It is indicated that only a comprehensive approach to legal regulation, in particular the elimination of fragmentation in the mechanism of such regulation, can significantly improve the situation with the application of anti-corruption legislation. The incompetence and/or corruption of some authorized subjects of the application of anti-corruption legislation in the Armed Forces is another drawback of the application of anti-corruption legislation in the Armed Forces during martial law. It is noted that it is people with the right values in the ranks of the Armed Forces who will transform its system as a whole and will be able not only to apply anti-corruption legislation, but also to make proposals for its improvement. The problem of the application of anti-corruption legislation in the Armed Forces during martial law, such as insufficient financial support and legal nihilism, is analyzed. The need to build a correct model of anti-corruption legislation and a decent salary in the Armed Forces (and in general in all state authorities) was emphasized. Legal education of citizens in order to overcome legal nihilism is also of great importance.

Проблема разграничения отношений публично-правового и частноправового характера при рассмотрении споров CAS

This scientific article examines the theoretical and practical aspects of the activitiesof theInternational Court of Arbitration for Sport in Lausanne. The prerequisites and reasons for the emergenceofaninternational independent body for the resolution of disputes arising fromthe activities of subjects of professionalsports are considered. Also, the role and legal significance of the arbitration decision adoptedin2022forRussiansports organizations is noted. In the article, the authors analyzed the Decision of the International ArbitrationCourt in the case CAS 2022/A/8708 Football Union of Russia (FUR) v. Fédération InternationaledeFootballAssociation (FIFA) et al., identified "gaps" and shortcomings of the legal technique of the adoptedact. Particularattention was paid to the legal assessment of the evidence on the basis of which the Court of ArbitrationforSportissued a decision to dismiss the claim of the Russian Football Union. In addition, the unreasonablenessoftheapplication of collective responsibility is considered.

БЮДЖЕТНЕ ЗОБОВ'ЯЗАННЯ, ЙОГО ПОНЯТТЯ ТА ОЗНАКИ

The proposed article was prepared as part of a dissertation research on "Financial and Legal Regulation of Budget Obligations" in order to determine the main features of the budget obligations as a financial and legal category, to differentiate the parties to such obligations for further scientific study of the grounds for budget commitments and their implementation. The research was conducted using a general scientific dialectical method of research. The primary special legal method of research used in the study is the method of legal hermeneutics, which consists of interpretation of legal texts. The author focuses on the genesis (formation) of the financial and legal category of the budget obligations. The relationship between the categories of "obligation" and "budgetary obligation", and its separation from the obligations in the nature of private law, is briefly covered. The problems of legal consolidation and definition of the concept of "budget obligations" and "budget financial obligations" are also studied. Attention is paid to the issue of systematization of budget legislation. The conclusions indicate possible ways to improve the legal consolidation of the concept of "budget obligations". The article describes in detail the key features of the budget obligations as a financial and legal category, arising from the provisions of budget legislation, namely the following features: 1) is public recognized, represented by the Treasury, the obligation to be paid from the budget; 2) corresponds to the budget allocation (carried out in accordance with it); 3) is subsequent, as it arises on the basis of the original obligation; 4) has a time frame corresponding to the budget period; 5) the parties to the budget obligation are the administrator of budget funds (recipient of budget funds) and the Treasury, as a body authorized by the state (territorial community, a legal representative of the owner). The problems of legal technique that takes place in the formulation of the Budget Code of Ukraine in terms of regulating budget commitments are considered. The general idea of the text is to discover the features of the concept "budget commitment" . It was defined by the author in great detail. Problems of the budget legislation connected with practical application of norms of the Budget code of Ukraine are highlighted. The author comes to the conclusion on future research of the issue of the need for a separate study on the grounds for budget commitments and their implementation.

Проблемы законодательного конструирования уголовно-правовых норм, направленных на защиту объектов топливно-энергетической инфраструктуры Российской Федерации

Within the framework of the article, the author formulates problems associated with the legislative design of criminal law norms that provide for criminal liability for unauthorized connection to oil pipelines, oil product pipelines, and gas pipelines, or for making them unusable. The aim of the article was to develop and formulate approaches to the elimination of legal conflicts arising from the incorrect formulation of criminal law norms and to improve the practice of applying the norms of the Criminal Code of the Russian Federation, provided for by Art. 2153 of the Criminal Code of the Russian Federation. The article is based on the doctrinal provisions of the science of criminal law concerning the legal technique of designing criminal law norms, as well as materials of law enforcement practice. As a result of the study, the author demonstrates an internal inconsistency in the prescriptions of Art. 2153 of the Criminal Code of the Russian Federation, associated with excessive overload and fundamental incompatibility of signs of corpus delicti within the framework of one norm of the Criminal Code of the Russian Federation. In particular, mandatory signs of a particularly qualifying corpus delicti must include a special subject, a person subjected to administrative punishment for a similar act, and consequences, in the form of disruption of the normal operation of the oil pipeline and selfish or hooligan motives in the perpetrator's behavior. Thus, it is impossible to apply the provisions in practice without violating the principle of legality and using the analogy of criminal law. The author states that in many ways the nature of the origin of the problems that we have to speak about more and more often are constant questions about the competition between general and specific norms, and, if these questions are undecidable, we have to speak about the widespread use of the banned analogy. The conclusions of the study are: the author's proposals on amending Art. 2153 of the Criminal Code of the Russian Federation and other norms of the criminal law; an indication of the need to eliminate unnecessary duplication of the norms of the Criminal Code of the Russian Federation and to create more and more highly specialized special norms that compete with general criminal law prohibitions. In addition, the ways of changing approaches to the qualification of these acts have been identified; these ways allow for a consistent counteraction to negative socially dangerous acts and respect for the interests and rights of citizens.

СТАНОВЛЕНИЕ И РАЗВИТИЕ ЮРИДИЧЕСКОЙ ТЕХНИКИ В ПРАВОТВОРЧЕСКОЙ ДЕЯТЕЛЬНОСТИ ГОСУДАРСТВ

The purpose of the work is to highlight the main periods in the development of legal technology, highlight the characteristic features of this legal institution and identify the role occupied in law-making activities. The problematic of the work is the lack of illumination in modern society of such a legal category as legal technology. The methodology of the work consists in the analysis of historical and normative documents, synthesis of the concept under consideration, generalization and systematization of the knowledge gained in order to develop legal technology and strengthen its position in law-making and law en-forcement activities. The scientific article highlights the basic rules of legal technique and its main features, the points of view of scientists from different countries and eras are given, the main approaches to the definition and content of the concept under consideration are considered. The result of the work were concrete proposals for improving legislation in the chosen area.

АКТУАЛЬНІ ПИТАННЯ ЗАХИСТУ ПРАВ ІНТЕЛЕКТУАЛЬНОЇ ВЛАСНОСТІ В УКРАЇНІ

The article is devoted to the issues of coverage of intellectual property protection. Ukrainian and partially European legislation is analyzed. The main theoretical and practical problems related to the protection of intellectual property are highlighted. The main legal aspects and their role in solving the problems are highlighted, as well as a comparison of intellectual property law and property rights. This article describes the trends in the legal development of the institution of intellectual property, as well as the possibility of its improvement and acceleration through an updated mechanism for its protection. Prospects for the development of legal techniques in the field of intellectual property protection are covered, some innovations are proposed, in particular, insurance of intellectual property, as well as their role and main directions of work on them. The article considers the problem of judicial protection of intellectual property rights through national and international judicial bodies, comparison of their powers and capabilities in terms of recommendations of international organizations, including WIPO. A comparison was made on the main aspects of the basic concepts and concepts of protection of property rights and intellectual property rights, on the basis of which differences and legal aspects of their use are considered. Possible negative and positive aspects of protection of intellectual property rights under the legislation of Ukraine and the possibility of bringing it into line with European legislation, which is potentially important due to the likely accession of Ukraine to the European Union.

Application of the rules of legal technique in the rule-making process of the union of Russia and the Republic of Belarus

Application of the rules of legal technique in the rule-making process of the union of Russia and the Republic of Belarus

ESSENCE, CONTENT AND SIGNIFICANCE OF LEGAL TECHNIQUE AS A LEGAL CATEGORY

The scientific article is devoted to the study of general theoretical aspects of the category “legal technique”, which is conditioned by the problem of the modern Ukrainian legislation improving and bringing it to conformity with the requirements of international standards. The author considered the issue of active development of the legal system of Ukraine, impact of the processes of globalization and integration on it, as well as renovation of the content of some state-legal phenomena, which actualizes the improvement of rule-making and law enforcement. Taking into account the analysis of the degree of efficiency and quality of legal technology in modern conditions, it should be noted that there is no sufficient scientific research of this issue by legal scholars in modern legal science. The problem of studying and analyzing the essence of legal technique is of great interest among scientists in different legal spheres and plays an important role in improving lawmaking in general. In connection with this, the issue of search for means of increasing the efficiency of legal activity is quite topical in modern legal science. The aim of the study is to analyze various aspects of legal technique in modern legal science and elicit problems of its improvement in the context of globalization and integration processes. It has been ascertained that legal technique plays an essential role in ensuring the effectiveness of law and strengthening legality. Complete and correct use of all means and methods based on elaborated rules of legal technique provides an accurate expression of the content of legal acts, their simplicity and possibility of their most rational use in practical work. The level of legal technique is one of the indicators of the level of legal culture in the country. The need for full and thorough use of legal technique, expressing the advanced experience of legislation and progressive recommendations of science, is an objective principle that allows one to avoid certain negative consequences, costs and shortcomings in the form of law.

Comprehensive approach to perception of law in the context of doctrinal views

The purpose of the study is a theoretical and legal analysis of the compressive approach to the perception of the law in the context of doctrinal views, its substantiation and comparison with the comprehend theory. The originality of the study lies in the substantiation of the theory of the comprehensive approach, which consists in a strictly objective, real, non-idealised, deideologised cognition of the law. New ideas related to the perception of law through an objective and comprehensive assessment and monitoring are proposed. The similarities and differences between the comprehensive approach and the comprehend theory are clarified. The approach is a kind of tool for the development of theory. As a result of the analysis of doctrinal views on the comprehensive approach to the perception of law and the generalisation of different positions, the definition of the studied concept is developed. Conclusions: the methodological value of the comprehensive approach as a kind of tool for the development of the theory lies in the objective, real, non-idealised, and deideologised cognition of the law. Therewith, it is inadmissible to recognise the prevalence of a certain concept or theory. The construction of law in the way of combining the integrated theory of law and the theory of natural and positive law is incomplete and incorrect. Since law is not limited to these two theories. Thus, this perception of law is one-sided and biased. Arguments are given regarding the practical value of the comprehensive approach in legal technique when the assessment of the law is conducted depending on the completeness of its implementation and in achieving legal certainty. The more objectively the law, the quality and effectiveness of its rules are assessed, the faster it is perceived (recognised). It is advisable to comprehend the law with the assessment of its negative features

Advantages and Disadvantages of the New Edition of Chapter 49.1 of the Labor Code of the Russian Federation

The paper analyzes the novels of Ch. 49.1 of the Labor Code of the Russian Federation introduced on January 1, 2021. It highlights advantages and disadvantages of new approaches of the legislator to the regulation of remote work, describes preliminary results regarding the application of new rules. The merits of the new edition of Ch. 49.1 of the Labor Code of the Russian Federation include the emergence of the opportunity to combine work “in the office” with a remote work in accordance with the employment contract, the cancellation of Article 312.5 of the Labor Code of the Russian Federation that contains the right to establish additional grounds for terminating an employment contract with a remote worker, and the simplification of the procedure for signing an employment contract and other documents required for registration of employment of a remote worker. As shortcomings, the author enumerates the absence in the new edition of Ch. 49.1 of the Labor Code of the Russian Federation of norms concerning the peculiarities of implementation by teleworkers of the right to join trade unions to protect their rights, the peculiarities of investigating an industrial accident or occupational disease of a teleworker, the absence of norms on the “right to be offline” beyond working hours for a teleworker, imperfection of the legal technique associated with the introduction into the legal field of two new grounds for terminating an employment contract with a remote worker. The author predicts possible violations of the newly introduced provision on the wages preservation in full when the employee performs his labor function remotely, which is linked to the incentive payments in the wage structure, awarding which is considered as a right, rather than an obligation of the employer. Among the disadvantages the paper names the lack of conflict-of-laws rules in the case of remote work carried out by both foreign workers and citizens of the Russian Federation outside its borders. In general, the author gives positive assessment of amendments introduced in Ch. 49.1 of the Labor Code of the Russian Federation, as expanding the possibilities of the parties to the employment contract for a more active application of the rules on distance work. The shortcomings noted in the paper should be regarded as material for theoretical comprehension and discussion with the aim of further improvement of the legal regulation of remote workers’ labor.

Properties of Criminal Procedure Presumptions

The process of proving has always been and today still is the central problem of criminal proceedings, and most aspects of modern criminal procedure activities are connected with it. The cognitive character of the proving process presupposes the use of multiple methods, the most complex and significant of which is the method of presuming. This method of legal technique is well represented in the Russian legislation. At the same time, legal science and the theory of criminal procedure law, which have multiple definitions of legal or lawful presumption reflecting various aspects of the concept under consideration, do not contain a unified approach to understanding its essence. This situation distorts the meaning of the definition of legal presumption and leads the situation when some authors and practicing lawyers use the word “presumption” to refer to legal norms that are not, in fact, legal presumptions. The authors describe the concept, meaning and key elements of the contents (features) of legal presumption as a method of legal technique that influenced the formation and development of modern Russian criminal procedure legislation.

Restrictions in labor law: theory of the issue and practice of application

The article proposes the author’s approach to the definition of legal restrictions as a special technical and legal technique, which is the limits fixed in laws or other normative legal sources, the boundaries of behavior, entailing the narrowing of the subject’s powers. Sectoral features characteristic of restrictions in labor law are derived. The issue of correlation of the concept of «restriction» with other related concepts: «prohibition», «exceptions», «differentiation», «discrimination» in labor law is investigated.

Денотация и коннотация как логический приём в юридической технике

The article discusses the specifics of legal techniques in the formulation of legal definition. A comparative analysis of approaches to understanding the definition procedure in jurisprudence, philosophy, logic, mathematics and philology is carried out.
 The relevance of the topic under study lies in the absence in modern legal tech-nology of generally accepted approaches to understanding the methodological speci-ficity of the implementation of the definition procedure. The purpose of this article is to determine the methodological foundations of differentiation of axiomatic and con-textual definitions, the implementation of the critical analysis of the classifications of types of definitions in the modern scientific literature.
 The basis of the concept of definition proposed by the authors is the analytical study of the logicallinguistic operation of determination on the example of the defi-nition of «corruption» from the Federal Law of December 25, 2008 No. 273-FZ.
 There is a lack of legal recognition of corruption as a bribe, and criticism of the narrow definition. Corruption is defined as a criminal act of a social and legal nature, which is constrained by the nature of official crimes in conflict with the interests of society and the State, the essence of which is an obvious mercenary motive in personal en-richment (material and non-material) through the use of his official position (authori-ty) for mercenary purposes.
 The study is based on the methodological tools of systemic, structural-functional and comparative cognition methods.

SMALL CLAIM COURT : PRINCIPLE CONCRETIZATION IN LAWSUIT SETTLEMENT

The purpose of this research is to examine the provisions of civil procedural law in settling a lawsuit, to know the form of simple, fast, and low-cost concretization in simple lawsuit settlement. The research method uses the research object of simple, fast, and low-cost concretization in the settlement of a simple claim, normative juridical approach, the type of data used in this study is secondary data, which is sourced from the literature. Secondary data consists of primary legal materials, secondary legal materials, legal material collection techniques carried out by literature and the internet, while the data analysis method is analyzed descriptively qualitatively. The results show that the provisions of civil procedural law in resolving claims in court so far have been using the basis of HIR, which do not differentiate between complicated and simple case examinations so that the time for settlement is the same. The process starting from submitting/registering a lawsuit, determining the day of trial by the head of the panel of judges, the parties being summoned appropriately, the trial, evidence to the verdict took a long time, namely 6 months (SUPREME COURT CIRCULAR No. 6 of 1992), so the Supreme Court issued SUPREME COURT CIRCULAR No. 2 of 2014 which provides a time limit for completing the case of five (5) months. The simple, fast, and low-cost principles of concretizing a small claim court can be seen in the settlement stage. Settlement of a simple lawsuit is divided into 4 (four) stages, namely: 1), preliminary stage, 2) stage of case examination, 3). The objection request stage and 4), the simple action decision stage. This simple lawsuit settlement process should take a maximum of 25 (twenty-five) days. The simple principle is embodied in the shortened settlement process mechanism, the fast principle is realized within 25 days of completion, a peace that does not use the provisions of Supreme Court rules No.1 of 2016, while the principle of low cost is realized from a simple settlement mechanism, will be affected by the cost of the case.

Tax system: features of conceptual apparatus

Problem setting. The definition of the tax system of Ukraine, given in para. 6.3 of Article 6 of the Tax Code of Ukraine (hereinafter - the TC of Ukraine), as a set of national and local taxes and fees, which are managed in the procedure established by this Code [9], does not cover a number of relations regulated by tax legislation. Appeal to the provisions of para. 1 part 2 of Article 92 of the Constitution of Ukraine [4] further "reinforces" our position. According to the abovementioned norm of the Basic Law of Ukraine, only the laws of Ukraine establish a system of taxation, taxes and fees. That is, at the level of the Constitution of Ukraine, the system of taxation and taxes and fees are divided. And there remains space for considerations, which is meant both by the tax system and by taxes and fees. Analysis of recent research. The tax system is a fundamental category of tax law. Various aspects of the tax system have been studied by many scientists. Here it should be noted D. Getmantsev, M. Kucheryavenko, N. Pryshva and others. Among the latest comprehensive legal studies of the tax system should be noted the dissertation of O. Barin "Legal foundations of the tax system of Ukraine: current state, basic elements, principles". The purpose of the article is to study the content and conceptual apparatus of the tax system. Article’s main body. The article is devoted to the peculiarities of the conceptual apparatus used in determining the tax system of Ukraine. The definition of the tax system as a set of national and local taxes and fees in the procedure established by the Tax Code of Ukraine leaves a number of issues of both theoretical and practical nature. Attention is focused on the fact that there is no military fee in the list of state taxes and fees fixed in Article 9 of the TC of Ukraine [9]. It is not clear for what reasons the regulation of its payment is carried out by p. 16-1 of subdivision 10 Section XX of the Tax Code of Ukraine [9]. With this approach, there is a situation when the military fee in the tax system of Ukraine seems not to have. Although the military fee is actually paid. We can’t mention that the name of this tax payment does not correspond to the provisions of clauses 6.1 and 6.2 of Article 6 of the TC of Ukraine [9], where the definition of tax and fee is provided. According to its legal mechanism, the military tax fee, because the main feature of the fee - individual repayment - is absent. That is, the military payer does not receive individual special benefits. Conclusions. The conceptual apparatus used in the Tax Code of Ukraine in determining the tax system of Ukraine has a number of contradictions. The case here is not only in legal technique. The lawmaker's approach to determining the tax system as a set of national and local taxes and fees in the procedure established by the TC of Ukraine leaves a number of issues of both theoretical and practical nature. This attitude to the fundamental principles of legal regulation of the tax sphere can have negative consequences for both taxpayers and budgets of different levels. Bringing the conceptual apparatus into logical compliance will be able to lay down the necessary guarantees of compliance with the rights of taxpayers and will be able to ensure stable receipt of taxes and fees to budgets.

Criminalization of drunk driving: problems of legislative practice

The article highlights the Ukrainian experience of criminalization of drunk driving as a result of amendments to criminal and administrative legislation in 2018–2021. The importance of systematization and validity in making changes to administrative and criminal law is noted. Attention is drawn to the need for careful observance of the rules of legal technique in legislative activity, given that the use of administrative and criminal law is associated with the most significant restrictions on human rights and freedoms. It is noted that there are violations of the rules of legal technique, allowed in the relevant laws in terms of the provisions on criminalization and decriminalization of drunk driving: violations of the homogeneity of legal regulation (Law № 720-IX regulated an issue that was not the subject of its regulation); internal consistency (Law № 720-IX on amendments “in connection with the adoption of Law № 2617-VIII” amended the Law itself № 2617-VIII); external consistency (provisions of Law № 720-IX contradict the provisions of Article 2 of the Code of Administrative Offenses and Article 3 of the Criminal Code of Ukraine); linguistic (in paragraph 117 of the Law № 720-IX there is a morphological error); procedural (violated the requirements of Articles 90, 92 of the Regulations). Attention is drawn to the content of the conclusions and the legal significance of the explanations of the Parliamentary Committee on Law Enforcement, adopted on the criminalization of drunk driving. It is noted that the relevant committee violated the regulatory procedures and provisions of the legislation on parliamentary committees. The consequences of the relevant technical and legal violations (legislative uncertainty) are highlighted and ways to eliminate these problems are suggested.

Legal and Technical Defects of Constitutional Amendments of 2020

The quality of legal and technical elaboration of amendments to the Constitution of the Russian Federation, approved by the all-Russian vote on July 1, 2020, does not correspond to the level of the Basic Law. Oddly enough, the constitutional legislator ignored a number of basic technical means, rules and methods of legal technique. Thus, the constitutional amendments were drafted without taking into account the requirements of the structural organization of the legal act, namely: many new norms were included in inappropriate articles, the transitional provision on "resetting the deadlines" was duplicated in the main text of the Constitution. The authors of the amendments abandoned criteria of efficiency and compactness of legislative norms, having included an identical set of restrictions in nine articles of the Constitution in relation to various categories of officials. The text does not meet the requirement for uniformity of legal regulation, legal structures, the unity, simplicity and brevity of terminology: the scope of constitutional restrictions for various categories of officials differs somewhat without any objective reasons; there is no uniformity in the issue of the possibility of establishing additional requirements for officials by laws, “bifurcation” of the titles for senators (who in Chapter 9 of the Constitution are still referred to as members of the Federation Council). Insufficient attention to the requirement of consistency of legal norms has led to the creation of a new contradiction between Art. 71 and 72 of the Constitution of the Russian Federation. Amendments also have a number of other legal and technical defects. Such serious and numerous defects in the legal technique of amendments to the Constitution of the Russian Federation became a natural result of a steady decline in the quality of federal legislation that has lasted for a long time. Constitutional amendments clearly demonstrate an insufficient level of legal culture in our country, which sharply raises the question of a radical improvement in the quality of legal technology, and legislative technology in particular.

The judicial review of legality

In comparative constitutional law, the various models of judicial review require courts to examine either the substantive content of legislation or the procedure through which legislation was passed. This article offers a new model of judicial review – ‘the judicial review of legality’ – in which courts review instead the forms of law. The forms of law are the ways in which law communicates its norms to the persons who are meant to comply with them, and they include generality, clarity, avoidance of contradiction, and non-retroactivity. Drawing on recent writing on the jurisprudence of Lon Fuller, this article argues that Fuller’s linking of the forms of law to a relationship of reciprocity between government and governed can ground judicial review and that such review provides a missing language to address important legislative pathologies. Moreover, through an analysis of recent developments in Israel, the article demonstrates that the judicial review of legality targets some of the key legal techniques of contemporary processes of democratic erosion which other models of judicial review struggle to address, all the while re-centring judicial review on the lawyer’s craftsmanship and thus reducing problems of court legitimacy. This article therefore offers a distinctive and normatively appealing way for courts to act in troubling times.

СУЧАСНІ АСПЕКТИ ТЕОРЕТИКО-ПРАВОВОГО ЗАБЕЗПЕЧЕННЯ РЕАЛІЗАЦІЇ ПРАВООХОРОННОЇ ФУНКЦІЇ ДЕРЖАВИ

Law enforcement function is a complex direction of state policy, through which the protection of human rights, freedoms and interests, ensuring the rule of law, the constitutional order, order and the safe existence of society, its elements. Factors influencing to the development of law enforcement at the present stage are: the modern law enforcement function is devoid of excessive interest in coercion; the functions of providing services, conducting educational work, establishing transparency, accountability and accountability to civil society are becoming increasingly important; the integration of law enforcement into the sphere of information and commercial relations has deepened; the implementation of the law enforcement function on the ground has become more accountable to the local community through decentralization reform; the requirements for the quality of regulatory support of law enforcement infrastructure have changed. The legal support of the state law enforcement function aims to regulate this array of public relations, to give it legitimacy and universality. The theoretical basis of administrative regulation of the law enforcement function of the state can be based on the following theses: synergy of dogmas of public administration, administrative relations and regulatory activities of the state in the field of law enforcement; the impact of legal norms in the field of public administration on the protection of human and civil rights, freedoms and interests; positive obligation of the state to affirm and protect human rights through the relevant activities of law enforcement institutions regulated by regulatory administrative acts, etc. Modern realities require the expansion of law enforcement influence on public relations. Therefore, the law enforcement function can be supplemented by the following components of legal nature: law enforcement service, which is accompanied by the provision of appropriate services to the subjects of appeal; information and telecommunication support and digitalization of order relations; communication, intersubjective interaction, control. Legal uncertainty of the categorical apparatus creates adverse organizational and managerial consequences that affect both the law enforcement system and the implementation of the tasks of law enforcement and security. The absence of a special law in the field of law enforcement is not a significant shortcoming in the way of effective regulation of law enforcement relations, as the scope of the general principles of the state law enforcement function is quite broad in theoretical terms. From the point of view of legal technique, normative design and systematization of law enforcement relations is such a difficult task that it does not justify the purpose of the existence of the law itself or a set of laws. In the most general form, the system of departmental regulatory regulation in the field of law enforcement of the state should be classified into two groups: organizational and managerial (internal) regulatory support; regulatory support of the main areas of law enforcement (external).