National Law Systems Research Articles

Human Rights and International Standards: Correlation between National and International Legislation

The article examines the problem of protection of human rights in national and international law, which is the most important feature of civil society. Taking into account the importance of the area under study, as well as the importance of a clear settlement of relations regarding the observance of human rights in all spheres of life, the question of the relationship between the norms of national and international legislation in this area is acute. The purpose of the study is to determine the priorities between national and international legislation, as well as to establish the compliance of domestic norms designed to protect human rights with international legal standards. It has been established that the Constitution consolidates the priority of international instruments over national legislation that clearly defines the relationship and interaction of internationally recognized standards and principles with the relevant provisions of the current legislation of Ukraine in the sphere of protection of human rights and fundamental freedoms. This ensures that the participating countries comply with both their home-constitutions and international legal acts. Moreover, the level of global security depends on the level of correlation between the policies of individual states and the provisions of international legal norms. But the standards and principles of international law and international agreements of Ukraine may not be above the constitutional and are a part of the national system of law, which is based on the Constitution of Ukraine. In addition, international standards should not be perceived as immutable, since it may lead to a partial loss of the national identity of the legal system. Therefore, the perception of these international standards should take into account the traditions and specifics of the national legal system. The Constitution of Ukraine shall be a guarantor of preserving national identity in the process of implementation or reception of international standards. It is determined that international legal standards are the determining factor that determines the level of correlation of national legislation with the relevant international legal norms. International legal standards have been defined as the determining factor that reveals the correlation level of national legislation with relevant international legal norms.

Asset Recovery of Detrimental to The Finances of The State From Proceeds of Corruption in The Development of National Criminal Law System

Asset Recovery resulting from corruption in Law 31/1999 in conjunction with Law 20/2001 is difficult, besides that Indonesia, which has ratified UNCAC 2003, is still experiencing difficulties resulting in a low amount of repayment of state financial losses compared to its own financial losses. Problems in asset recovery originate from Article 18 of Law 31/1999 in conjunction with Law 20/2001, which can only be done after a court decision has permanent legal force. UNCAC 2003 has the concept of non conviction base forfeiture (in brake system) to overcome these weaknesses. The formulation of optimizing punishment is generated by asset recovery with an economic analysis of law approach using the time value of money as a determinant of calculation Keywords: asset recovery; detrimental to the finances of the state; corruption; national criminal law system.

The Scientific and Legal Basis Formation Standardization as a Means of Business Regulation

The article analyzes the influence of scientific experience and a high level of standardization in the Soviet theory on the theory and methodology of the national standardization in the transition to a preferred application of international standards for the effective regulation of economic activity in Ukraine. The author proposes a vision of changing the scientific thought about standardization and its contents in the technical, economic, and legal branches. A technical research and development were the fundamental principles, at first they were about purely unification and classification properties standardization, but later took the intersection of research on economic and legal issues. Economists usually talked about standardization as a means of regulating the economy as a unifying factor in the management processes, but in the context of adapting the Ukrainian market to global markets it is also referred to the use of standardization as a means of regulating economic activity (its individual types) and improving the legal framework of business through standardization to improve conformity of entities to the worldwide requirements. The legal sector has traditionally been presented by scientific work aimed at regulation of the management processes of standardization and related activities. Often attorneys focus on the legal basis of management features, such as application of standardization activities in certain sectors of economic or administrative areas, as well as ask questions of features and procedures for the use of different types of accountability in standardization. Ukraine today is a member of the WTO and is on track to join the EU, and therefore it should focus on changing the fundamental principles of the functioning of standardization: application of the standards of international organizations instead of the old GOST system; a wide application of the principle of voluntariness in the technical field, but strict application of mandatory security; a unifying conceptual- semantic system of national law. Following the transformation of the nature, content, and value of individual regulatory and technical documents on standardization and of the establishment of new areas, technical regulations are addressed. It is revealed that a comprehensive study of the essence, significance, and legal standardization of the market for the market as a national, regional, and global level has not been carried out until this time. It is suggested and grounded that there is a need to change the angle of view on understanding of standardization from a purely state regulator to expanding its ability to regulate social relations at the level of self-regulation. This position allows for the widest possible use of standardization and its documents by interested parties, in particular in the conduct of economic activity.Article received 25.02.2019

Comparative Administrative Law and Public Administration

The purpose of this chapter is to explore, critically and systematically, contemporary public administration scholarship as it pertains to national administrative law. To be clear from the outset, our aim is not to examine legal scholarship about public administration, but, rather, to understand how contemporary public administration scholarship thinks about administrative law. The studies we review — which we call bureau-centric (following Bertelli 2005, 135) — focus on the interaction of government agencies with politicians as well as with organized (e.g., business interests) and unorganized constituencies (e.g., social welfare benefit claimants). We conducted a systematic literature review to assess the current distribution of this bureau-centric literature in leading international public administration outlets, learning four things from the exercise. First, from the perspective of bureau-centric studies, the role of administrative law is to constrain particularistic behavior of administrative officials as they interact with organized constituencies, though the literature takes opposing views on the effectiveness of the law in doing this. Second, these studies tend to view the role of administrative law as shifting toward the promotion of a kind of pluralism as administrative officials interact with unorganized constituencies. Third, while the bureau-centric literature is robust within the confines of particular national administrative law systems, comparative studies are entirely absent from the important outlets we surveyed. Fourth, the American case dominates the literature in leading international public administration outlets, which did not reveal any study that compares, for instance, how administrative law differs in its bureau-centric implications across civilian and common law systems. We consider this a missed opportunity and offer an agenda for future research that might begin to remedy this situation.

Містобудівне право в системі права України

Розглянуто особливості зародження нового нормативного масиву в системі національного права, яким є містобудівне право. На фоні розбіжності наукових підходів до визначення місця містобудівного права в системі права обґрунтовано авторське бачення останнього як самостійної комплексної галузі права. Охарактеризовано особливості нововиниклої галузі з боку співвідношення самостійності та комплексності. На основі порівняльного аналізу містобудівного законодавства країн пострадянської правової сім’ї та відповідних доктринальних положень визначено предмет містобудівного права, який становлять відносини будівельні, архітектурні та планування організації і розвитку територій і населених пунктів. Ключові слова: містобудівне право, містобудівне законодавство, будівельне право, комплексна галузь права, предмет містобудівного права

Syari’at Islam dan Hukum Nasional: Problematika Transformasi dan Integrasi Hukum Islam ke dalam Hukum Nasional

Sharia law or Islamic law in Indonesia, recently, is undergoing the process of transformation and integration toward national law. During this process dualism in terms and institutions difficult to be avoided. If in education there are madrasah and school (sekolah), in law there are sharia law and national law. The question is whether, through gradual transformation, this dualism eventually heading to integration and unification of law? This paper will try to see the problems and handicaps faced by Indonesia in order to transform and integrate sharia law toward national law. But this paper will fistly discuss the relationship between Islamic law, human rights and international law, the position of Islamic law in national law system as well as how Islamic law interact with local culture. This research concludes that the transformation of Islamic law in Indonesia needs to consider the multi-ethnic, multi-cultural and multi-religious faction of Indonesia. Transformation must not only end in the formalization process but also the internalization process. If the internalization process goes well, then Islamic law will enter Muslim community awareness as ethical and moral awareness. So that at the private level Islamic law will be practiced, becoming a way of life regardless of whether it is formalized in legislation or not. For Islamic law to be formally transformed at the public level in legislation, Muslims need to renew their understanding of syûra and ijmâ.

ІМПЛЕМЕНТАЦІЯ ЄВРОПЕЙСЬКОГО ДОСВІДУ В ПРАКТИКУ КРИМІНОЛОГІЧНОГО ЗАБЕЗПЕЧЕННЯ ЕКОНОМІЧНОЇ БЕЗПЕКИ УКРАЇНИ

Стаття присвячена дослідженню міжнародного аспекту забезпечення економічної безпеки України на підставі аналізу різних форм імплементації європейського досвіду в практику її кримінологічного забезпечення. Наголошено, що цей процес здійснюється в різних формах: дотримання, виконання, використання і застосування права. Кожній з наведених форм притаманні специфічні способи їх реалізації: трансформація, відсилання, інкорпорація, легітимація, адаптація і рецепція. Вибір національним законодавцем наведених способів імплементації безпосередньо впливає на якість законодавства у сфері кримінологічного забезпечення економічної безпеки нашої держави і вимагає його своєчасного вдосконалення з огляду на постійні зміни соціальних умов життєдіяльності людей.

Constitutional law: the field of law or a specific basic subsystem being a skeleton of national system of law

The article critically analyzes an approach to the interpretation of Constitutional Law as the field of national law and a subsystem of public law still popular in post-Soviet and national Constitutional scholarship.The author provides arguments on methodological inadequacy of traditional post-Soviet legal criteria of the division of law into branches and institutes. The availability of the subject of legal regulation (homogenic societal relations regulated by a number of legal norms) and the method of legal regulation being an instrument of the influence on societal relations being regulated by those, in each branch of law. It highly exceeds the borders of legal regulation of state governance homogenic relations being the subject of Constitutional law in the past. The scope of methods applied by it is much wider than the traditional public law imperative method built on the relations of power subordination. Therefore, in addition to the abovementioned method, Constitutional law frequently applies the dispositive method based on the equality of relations between the coordinated subjects on the contrary to subordination. Moreover, Constitutional law does not limit itself to the scope of national, internal law of the country. Its certain provisions have a supranational status bearing the ties of Constitutional law with International law.The article concludes that basing on its ontological nature, Constitutional law occupies a wider scope than it has traditionally been viewed and differentiated. It establishes basic, starting principles for the functioning and development of all the most important areas of societal relations linked primarily to the basics of legal status of the individual and the role of the state in its assurance. Constitutional law makes a specific basic subsystem of the national legal system and provides a fundamental basis for all of its branches as well as acts as a system-building pivot for the whole national legal system.Article received 13.03.2019

Sowjetisches Ehe- und Familienrecht von den Ersten Dekreten 1917 bis zum letzten Gesetzbuch 1968: vom Standpunkt der Lettischen Sozialistischen Sowjetrepublik

The Soviet law, which was created at the beginning of the 20th century in Soviet Russia, had evolved on the basis of the legal tradition of Continental Europe; it was a legal system based on the Marxist law theory as understood in Soviet Russia and later in the USSR and the countries that came under its influence. Marxism-Leninism maintained actual equality in society, including gender equality, which determined Soviet state policy in the sphere of marriage and family law. In the territories occupied by the USSR in 1940 – Latvia, Estonia, Lithuania – the previously existing national systems of law were replaced by Soviet law. As a result of the Soviet marriage and family regulations being put in place, the following was established in the territory of Latvia: civil marriage as the only valid form of marriage, equality of spouses, and the equality in the rights of all children regardless of whether they were born in or outside of marriage.

The European Employment Strategy, the European Social Pillar and their Impact on Labour Law Reform in the European Union

The article provides a critical account of the impact of the European Employment Strategy (EES) on national labour market policies and labour law systems. It gives an overview of the development of the EES from the 1990s until the introduction of the European Social Pillar (ESP) and analyses its impact in the Member States of the European Union. In particular, it highlights the origins of the EES in debates about European Economic and Monetary Union (EMU) and examines the importance and the specific nature of the new governance approach adopted by the EES and its significance for labour law reform in the Member States. The article argues that the latest stage in the development of European social policy, associated with the introduction of the ESP, has not led to a change in direction in European social and employment law and policy. Despite its rights-based approach, the ESP merely constitutes the latest stage in the development of the EES and continues in its attempt to prioritize labour market policy concerns in reforming labour law. However, the article also argues that the ESP has potential to be the platform for a proper Social Union.

Uzročna veza kao pretpostavka odgovornosti za štetu u europskim nacionalnim pravnim sustavima, praksi Suda Europske unije i Europskog suda za ljudska prava

Autori u radu prvo navode neke zajedničke karakteristike pristupa uzročnoj vezi kao pretpostavci odgovornosti za štetu u nacionalnim odštetnopravnim sustavima država članica. To su izostanak jedinstvena pravila o uzročnosti, razlikovanje dviju razina uzročnosti (stvarne i pravne) te prepuštanje definiranja pojma uzročne veze, a djelomično i utvrđivanja pretpostavaka za njezino postojanje i njezina dosega sudskoj praksi. Nakon toga prikazuju kako se o nekim pitanjima u svezi s uzročnom vezom očitovao Sud Europske unije u odlukama o odgovornosti Unije za štetu i odlukama u postupcima tumačenja prava u povodu prethodnih pitanja koja su postavili nacionalni sudovi (uzročna veza kod odgovornosti država članica za štetu, odgovornosti za štetu prouzročenu povredom prava tržišnog natjecanja i odgovornosti za štetu od neispravnog proizvoda). Na kraju se analizira specifična uzročna veza čije se postojanje između štetnog djelovanja (utjecaja) i povrede zaštićenoga konvencijskog prava i onoga što je država činila ili trebala činiti, ali nije (tj. propuštala je) traži kako bi se u praksi Europskog suda za ljudska prava pružila zaštita povrijeđenom pravu iz Konvencije za zaštitu ljudskih prava i temeljnih sloboda. Nakon prikaza temeljnih karakteristika uzročne veze na sve tri razine odštetnog prava u Europskoj uniji autori u zaključnim napomenama analiziraju utjecaj prakse Suda Europske unije i Europskog suda za ljudska prava na uzročnu vezu kao pretpostavku odgovornosti za štetu u nacionalnim pravnim sustavima.

РОЗВИТОК АДМІНІСТРАТИВНОГО ПРАВА ТА АДМІНІСТРАТИВНО-ПРАВОВОЇ ДОКТРИНИ В ЛИТВІ

The system of national law and the corresponding system of democratic authorities had to guarantee optimal protection of the individual’s fundamental freedoms and rights, and help to create human welfare. Science of administrative law is constantly evolving, and its insights are strategic in nature, oriented towards the future. There is often a struggle for new ideas, opinions, concepts, paradigms to be embedded or denied. The new, old, inaccurate statements are changed to be more accurate, the new ideas criticize the old ones, and life practices raise new problems that science must answer rationally. The science of administrative law in Lithuania is not static, it is constantly changing as the administrative law itself changes. The concept of administrative law is changing, its regulation is expanding. The science of administrative law is an integral part of Lithuanian law science, where the specialists of administrative law – scientists investigate the essence of this branch of law, its subject matter and separate institutes and in general all actual problems of administrative legal practice and science of the whoel country. This article is the first scientific research in the cycle of articles “Development of Administrative Law and Administrative Legal Doctrine in Lithuania”. The purpose of this article is to present the development of administrative law and administrative law doctrine in Lithuania since 1990 by analysing the works of Lithuanian scientists in this field through the categories defined in the research tasks. In order to achieve the aim of the article, the following tasks are raised: briefly to introduce and discuss the development of Lithuanian administrative law science and administrative law as a category, to define and analyse the goals of administrative law, the subject of regulation and the system of administrative law in Lithuania. In order to achieve the aim and tasks of the research, the analysis of the works of Lithuanian scientists and the main laws implementing the administrative legal regulation of Lithuania was performed. Methods. Historical comparative, documents’ analysis, synthesis and other methods were used for research. Results of research showed that Lithuania has modern administrative law and administrative justice system, that meets nowadays meets and European Union justice standards’ requirements. Conclusions. We can conclude that Lithuanian scientists understand the administrative law in broad sense as law of management and described quite wide range of its regulation subjects. After Lithuania’s accession to the European Union and its commitment to take over its acquis communautaire, the entire Lithuanian legal system, together with administrative law, had to adapt to change. Implementation of the provisions of the European Union legislation in Lithuanian law has become a priority. The abundance of administrative legal regulation at European Union level and the need for its application in the case-law have created challenging tasks for administrative law science. An accurate analysis of the implementation of European Union legislation in the systems of state power and public administration in Lithuania, analysis of administrative legal systems of the Member States of the European Union, search for similarities and differences, effective defence of the rights and legitimate interests of a person when a Member State misapplies (waives) the provisions of European Union legislation, the jurisdiction of national courts to deal with damages where, for example, damage caused by inappropriate application of European Union law is made by a court of final instance in the state, and other issues become the subject of modern administrative law research.

ДО ПИТАННЯ ПРО КОНЦЕПЦІЮ СУЧАСНОГО ЕЛЕКТРОННОГО НІМЕЦЬКО-УКРАЇНСЬКОГО ЮРИДИЧНОГО СЛОВНИКА

The article deals with conceptual principles underlying the German-Ukrainian Legal online-Database – the first German-Ukrainian dictionary of legal terms in Ukraine. Such lexicographical principles as definition of a term, the interpretative note to the term in German and Ukrainian, the reference of branch of law and belonging of the term to a certain national system of law as well as fixation of main collocation’s types are analyzed and exemplified in a specific context of termbase entries.

From the industrial revolution to globalisation and integrative labour markets

This paper aims to assess and analyse the legal regime, the importance, and the legal and regulatory effect that trade unions, and subsequently collective bargaining, have in a legal system and in the hierarchy of norms therein, both at the national and international level. After a systemic principal overview, the construction of the paper departs from the fact that under the foundational principles of international law, employees' rights protection is guaranteed by both custom and codified norms. However, the form of enforcement of this social guarantee is highly dependent on the consensual nature of the international arena and on the states' compliance with the internationally accepted standards and their immersion into the national systems of law. Moreover, the paper analyses, in an interdisciplinary manner, both the legal regimes of collective bargaining and trade unions and comparative cases, with particular stress on the UAE and the situation at the regulatory and enforcement levels therein. Finally, the findings of the paper militate towards a more prolific enforcement regime and the development of adjacent resources, regulatory or policy related, for a higher protection of employees' rights thereto.

Izazovi recepcije prava Evropske unije - primer korporativnog prava u Srbiji

In this paper the author examines the consequences of the law reception process on Serbian corporate law. Cases of law reception are not rarely recorded occurrence in domestic legislative activity. Reasons for that are multiple, and they are also becoming more and more justified if one has in mind the need for fast harmonization of Serbian law with that of European Union. Still, this process of taking over law forms and istitutes does not represent the ideal solution. Moreover, in the case of corporate law the existence of disbalance between received rules that are included in regulation and the reality of its (non)appliance is obvious. Such results of law reception impose the following question upon law science: how to overcome ambiguity of its effects. In the light of significant changes brought by the 2018 amendments of Law on Business Organizations - such as incorporating new legal forms of Societas Europas or European Economic Interest Grouping - it remains to be seen what will be the future answer to challenges of new law institutes integration into the national law system.

A contribution to slavery debate: Domestic labour of migrant children in focus

Slavery and connected practices are ostensibly forgotten phenomenons, often considered they belong to the past. However, the migrant movements are placing focus on these forbidden practices and they are getting new features. The purpose of this paper is to (re)consider specific cases, those with European Court of Human Rights epilogue, where children were victims. Taking into account contemporary considerations on slavery and related practices we question the outcome analyzing key elements related to slavery notion. Emphasis is placed on insufficiently functional definitions in this area, the uncertainty of assessment criteria and comparison to judgments made by other courts. Considering that European Convention of Human Rights is described as the most powerful human rights protection mechanism with great impact on national (criminal) law systems, we search to see how the Convention ban is brought to life, analyze recent developments in this area, offering a different perspective to slavery notion.

Novčana kazna u savremenom krivičnom pravu

Since times immemorial, crimes against property have always been the most frequent offences, both in the national and comparative law systems. For this reason, all criminal legislations prescribe different types of punishment and property-related criminal measures as an efficient social response to crimes against property. In the criminal law of the Republic of Serbia, the property-related penalties and measures that affect the perpetrator's property include: 1) a fine and confiscation of property (as envisaged penalties); 2) a safety measure involving the confiscation of objects, 3) the measure of confiscation of financial benefit derived from the commission of a criminal offence; and 4) the measure of confiscation of property derived from the commission of a criminal offence. A fine is one of the oldest forms of punishment, which has been envisaged in all modern criminal legislations (including the Serbian legislation) and in some international documents as the adequate sanction (penalty) against the perpetrators of property-related crimes. In this paper, the author discusses the concept, characteristics, content, types, legal nature, effects, and the process of imposing and execution of this criminal penalty. All contemporary criminal laws provide various penalties and measures for suppression and prevention of crime in general, and crimes against property in particular. Nowadays, property-related crimes are prevalent in the structure of modern criminality. Criminal sanctions depend on the specific nature and distinctive characteristics of crimes against property and their perpetrators. A fine is a specific kind of sanction that may be prescribed as a principal and/or accessory property -related penalty, which has a repressive but also highly preventive impact. In all contemporary states, crimes against property prevail in terms of the total number of committed acts, their perpetrators, consequences, the scope and intensity of social danger, recidivism, and other features. In order to suppress crime in general, and crimes against property in particular, various social (primarily state) agencies at all social levels have applied different measures, instruments and procedures. All of them may be divided into preventive and repressive ones. The Serbian criminal legislation envisages two forms of fine: a) a fine in daily amounts, and b) a fine in fixed/specified amount (the Criminal Code 2005), which may be awarded to the perpetrators of property-related crimes depending on the nature, characteristics, significance and effects of the committed criminal act.

Egyenlő munkáért egyenlőtlen bér – avagy mennyire értékteremtő a közfoglalkoztatási bér?

The aim of this paper is to scrutinise the wages in the Hungarian public work programme – probably the most controversial anomaly of the Act CVI of 2011 on public work and the modification of the act on public work and other acts. Furthermore, the study analyses the effectivity of the value creation in this programme and exposes the passive sight of the public work.The paper identifies the public work programme as a hybrid contract of the Hungarian labour law and detected the social side of this kind of legal instrument of the active labour market policies. The research also focuses on Order no. 3175/2016 of the Hungarian Constitutional Court and highlights the discriminative dangers of the wages. To emphasize my opinion I set the European Pillar of Social Rights in the middle of the research and concluded that the national regulation is not even enough to create effective reintegration to the primal labour market. In my opinion, to increase the effectivity of this program, we need to use the principles of the Social Pillar and the national labour law system. The conclusion of the paper can be a possible way to highlight the value creation in the public work programme.

KEBIJAKAN PENEGAKAN HUKUM CYBERCRIME DAN PEMBUKTIAN YURIDIS DALAM SISTEM HUKUM PIDANA NASIONAL

This writing is oriented to find out how the legal aspects of evidence on cybercrime in the national criminal law system and law enforcement policies against cybercrime. The method uses is normatif legal research. Based on the results of the study it can be seen that the legal aspects of proving cybercrime have been strictly regulated in several laws and regulations in positive law in Indonesia. Provisions regarding Cybercrime are also regulated in international regulations without reducing the opportunity for each individual to continue to develop creativity in developing information technology. Law enforcement policies against cybercrime are carried out with a penal and non-penal approach. Seen from the point of view of criminal policy, efforts to overcome cybercrime certainly cannot be done partially with criminal law (penal), but must also be taken with an integral/systemic approach as well as a preventive approach (non-penal). Keywords : Policy; Law enforcement; Cybercrime; Proof; National Criminal Law System

Implementation of the law of the Eurasian Economic Union in national criminal law

Currently, one can observe the process of active economic integration and cooperation, in the post-Soviet space. This is possible due to mutual economic and political interests, ensuring the protection of the interests of national producers, and obtaining competitive advantages of domestic goods in comparison with similar products of Western European and Asian manufacturers. The solution to all these problems is facilitated by the creation of a single international organization of the post-Soviet space the Eurasian Economic Union (EAEU), the territory of its member states already constitutes a single customs space. Activities of the EAEU are associated with the adoption of a significant number of regulatory international legal acts. Implementation of these acts will be satisfactory only if the EAEU member states properly implement it in the national legislation. At present, several types of implementation of international law provisions in the national legislation of a particular country are distinguished in legislative activity: reception, transformation, referral, incorporation, ratification. Law enforcement practice also deserves special attention, including decisions of international courts binding in a single state. As a result of the study, the most preferred forms of implementation of the EAEU regulatory acts into the national law systems of its participants: Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia, were established. In addition, it was concluded that it is necessary to unify provisions of the criminal law of the listed states in terms of establishing liability for customs offenses. This decision will positively affect protection of both the interests of individual participants in economic relations and the economic security of each union state.