Procedural Provisions Research Articles

The fine as a form of liability for anti-competitive concerted actions: novelties of the competition legislation of Ukraine and review of the AMCU practice

The article analyzes the provisions, including novelties, of the Ukrainian competition law on determining the amount of fines imposed for anticompetitive concerted actions. The article analyzes certain provisions of Ukrainian legislation, in particular, the Law of Ukraine «On Protection of Economic Competition» and the Procedure for Determining the Amount of a Fine Imposed for Violation of the Law on Protection of Economic Competition, approved by the AMCU Order No. 22-rp dated December 14, 2023. The author analyzes the provisions of competition law regulating the mechanisms of: 1) determination of the basic amount of a fine; 2) adjustment of the amount of a fine taking into account the circumstances which are taken into account when determining the amount of a fine and increase or decrease the amount of a fine compared to the basic amount of a fine; 3) determination of the maximum amount of a fine. The author cites the practice of the Antimonopoly Committee of Ukraine to support the statements made in this paper. The authors emphasize that the Procedure has solved one of the existing problems of legal regulation in this area. However, this legal act still provides for unlimited discretion of the AMCU in determining the basic amount of the fine, which leads to the possibility of attempts to influence the authorized representatives of the antimonopoly authorities in order to reduce the amount of the imposed penalties. Based on the analysis of the provisions of the Procedure, the Law of Ukraine and the AMCU Decisions on violation of legislation on protection of economic competition and imposition of a fine, the authors conclude that the provisions of the above Procedure are imperfect in terms of legal regulation of the mechanism for reducing the basic amount of a fine in the presence of circumstances provided for by it. The solution of this problem will be facilitated by cooperation of the business entity that has committed or agreed to commit anticompetitive concerted actions with the bodies of the Antimonopoly Committee of Ukraine. In view of the above, it is proposed to amend the competition legislation of Ukraine, including the Procedure.

Posiedzenia zdalne w sprawach cywilnych jako odpowiedź na sytuację kryzysową wywołaną przez COVID-19

Crisis situation induced by the pandemic caused by the SARS-CoV-2 coronavirus has influenced the way of organization of hearings in civil cases. Undoubtedly, the possibility of remote meetings that was introduced by the Act on special solutions related to the prevention, counteracting and combating of COVID-19, other infectious diseases and crisis situations caused by them, was a novelty in Polish civil procedure. The main research intention of the article was to assess the impact of the regulation caused by the crisis situation on the current wording of the provisions of civil procedure. Following the amendment of the Civil Procedure Code of 7 July 2023, the provisions of the Covid Act were implemented in this area into the Civil Procedure Code. The article focused on assessing the impact of civil proceedings with the use of remote hearings on the implementation of the principles of fair trial, in particular the principle of open proceedings. Risks associated with the use of sentencing that have arisen in practice and ways of avoiding them have also been identified.

О скрытых процессуальных правилах рассмотрения дел о расторжении брака (часть первая)

The Family Code of the Russian Federation contains a lot of procedural provisions related to the process of dissolution of marriage between spouses. However, there are almost no such special provisions in the structure of provisions of civil procedure laws. It turns out that the marriage dissolution procedure does not differ from other civil case review and resolution procedures from the procedural standpoint. However, this is not the case from the objective legal standpoint. In this article, the author shows hidden but actually existing procedural rules for review of marriage dissolution cases that need to be taken into account and observed at resolution of respective civil cases.

Iura novit curia: доктринальные суждения о применении норм права в уголовном процессе

The author continues the recent research on the legal status of the conclusions of a legal specialist in the Russian criminal proceedings. The ambiguous approaches of judicial practice are shown and an attempt to harmonise them with theoretical provisions of criminal procedure is made. In general, such conclusions are a way of the accused to defend against the accusation, and are admissible both in the legislation and in the judicial process.

Инструменты правовой охраны интеллектуальной собственности при осуществлении внешнеторговой деятельности

The article reviews special aspects of protection of intellectual property. The authors analyze approaches of some countries to protection of certain IP items, legal regimes. The paper highlights that it is reasonable to take into account cultural, linguistic aspects of the respective state, mindset of the local population in carrying out export activities. The paper studies special aspects of license agreements entered into in carrying out export activities. It is noted that recent evolution of information and communications technologies has substantially improved opportunities of control over outsourced activities or processes whether in one or several remote national or international locations, which has made outsourcing a more attractive option of international activities in many other spheres. The article studies special aspects of the TRIPS Agreement that introduces not only procedural provisions of review of disputes including the ones associated with violation of rights to intellectual property that bind states, but also specific right protection mechanisms to be directly applied by courts of the states that are parties to the Agreement.

Конституционный Суд Российской Федерации о полномочиях районного суда по уголовным делам частного обвинения: можно ли ставить точку в правовом регулировании данного вопроса?

Ruling of the Constitutional Court of the Russian Federation No. 13-П of March 28, 2024, clarified the issue of authorities of a district court in privately prosecuted criminal cases on a crime stipulated by Part 1 of Art. 161.1 of the Criminal Code of the Russian Federation. Taking into account that criminal procedure provisions cannot be developed beyond the framework of criminal procedure law, there is a need for changes to the Criminal Procedure Code of the Russian Federation aimed at approval of respective legal instructions and bringing the external form of criminal procedure law in line with its internal form.

Comparison of the Provisions of the Austrian and German Criminal Procedure Laws on Victims with the Hungarian Legislation

Victims are necessary participants in the criminal process, but until the 20th century they were marginalised. Since then legislators have recognised the importance of victim protection. The Council of Europe and the European Union are also striving to regulate victims' rights and to establish minimum standards, naturally with special emphasis on the rights and protection of the most vulnerable victims. The preamble of the Hungarian Criminal Procedure Act treats the increased protection of victims and the enforcement of their rights as a priority objective. In my study, I will compare the provisions of the Hungarian Criminal Procedure Act with the provisions of the Austrian and German laws on victims. I have chosen these two countries for the comparison because the Hungarian legal system, due to its historical traditions is the closest to them. I believe that it is primarily the practice of these two countries that should be examined and compared with Hungarian legislation.

ОСОБЛИВОСТІ ЗАСТОСУВАННЯ НОРМАТИВНО-ТЕХНІЧНИХ ДОКУМЕНТІВ ЩОДО ОБСТЕЖЕННЯ ТА ВИПРОБУВАННЯ МОСТІВ І ТРУБ В УКРАЇНІ

ntroduction. New regulatory documents and legal acts in the field of construction have entered into force. In particular, the Law of Ukraine «On Building Regulations» dated November 5, 2009 No. 1704-VI (as amended). Also, new data appeared regarding the need for periodic inspections of transport facilities, etc. Therefore, it became necessary to revise the set of regulatory and technical documents regarding the examination and testing of bridges and pipes. One of the parts of this work was the development of DSTU 9123:2021, which included, in particular, the issues of inspection and testing processes, which, in the future, will be removed from DBN B.2.3-6:2009. After the approval of the developed DSTU 9123:2021, it is planned to revise DBN B.2.3-6:2009, in particular, in terms of removing procedural provisions from it. The scope of DSTU 9123:2021 applies to the same structures as in DBN B.2.3-6:2009. Problem Statement. At present, the main document on examination and testing of bridges and pipes is DBN B.2.3-6:2009. Some provisions of the norms contradict the existing legislation, some need to be improved, because the experience of their application shows that they do not cover enough provisions that need to be regulated. So, for example, the licensing of such an activity as examination was canceled quite a long time ago. In DBN B.2.3-6:2009, on the other hand, the presence of a license is a mandatory requirement. DSTU 9123:2021 reflects the current state of affairs and settles the contradictions that arose during the application of DBN B.2.3-6:2009. In the future, it is necessary to review DBN B.2.3-6:2009, in particular, to remove the procedural provisions that are already available in DSTU 9123:2021, to refer to it in the regulations so that it becomes mandatory to apply. Purpose. Analyze the documentation of examination and testing of bridges and pipes. Consider the differences between DBN B.2.3-6:2009 and DSTU 9123:2021. Establish the specifics of the application of the provisions of DSTU 9123:2021. State the prerequisites for the emergence of certain provisions available in DSTU 9123:2021, which are different or absent from DBN B.2.3-6:2009.

Исключительный повод для возбуждения уголовного дела о налоговом преступлении: сложности восприятия новеллы в правоприменении

The article analyzes the provisions of Part 1.3 of Article 140 of the Code of Criminal Procedure of the Russian Federation, which significantly limits the cases of verification of reports of tax crimes. The content of this novel is interpreted in investigative and judicial practice in various ways. In a number of situations, the law enforcement officer attempted to circumvent the restriction provided for by the legislator. The analysis of practice demonstrates the presence of certain difficulties in the systematic interpretation of the provisions of criminal procedure and tax legislation. It is concluded that within the framework of the current legal regulation, only materials sent in accordance with paragraph 3 of Article 32 of the Tax Code of the Russian Federation can be a proper reason (with one exception).

Reforming the justice process as a basis for combating corruption

Despite the ongoing measures to combat corruption in the judicial system of the Russian Federation, there remain cases when the presiding judge in a case is guided not by the norms of laws, but by personal and other material interests, which necessitates a change in the approach to identify, eliminate the causes, prevent, disclose, investigate corruption offenses, minimize and eliminate such offenses. The subject of the study is the norms of constitutional, civil and administrative law, other normative legal and judicial acts defining the procedural provisions of ongoing trials in the Russian Federation. The purpose of the research is to study the existing measures to combat corruption in the judicial system, as well as to develop proposals aimed at identifying and suppressing them. In the course of the research, the following methods were used: dialectical, logical, systemic, functional, formal-legal, comparative-legal research methods. The study analyzes the main legislative provisions related to combating corruption, as well as procedural norms of the law of judicial processes. The novelty of the research is the consideration of judicial instances as a single entity, where judges are divided not by specific courts where they carry out their official activities, but by internal conviction, and judges are united depending on the judicial instance. At the same time, the concealment of information about the judges themselves and the introduction of certain prohibitions on establishing their identity by the participants in the process will not only reduce the dependence of judges on the participants in the process, but also increase their personal security and reduce corruption. The analysis of the conducted research allowed us to establish that currently in the Russian Federation there are cases of corruption in the judicial system, where one of the main directions is the imposition of an illegal and unjustified court order, and in some cases the acquittal of a person who committed a crime. In this regard, it is proposed to reform the process of justice, which is based on the concealment of information about the identity of the presiding judges.

Sądowe zniesienie wspólności autorskich praw majątkowych jako postępowanie wyłączone spod kognicji sądów własności intelektualnej. Studium przypadku

The article is of a scientific and research nature and presents the problem of a possible cancellation of joint ownership of the copyright in non-litigious proceedings during litigation between the same parties concerning the infringement of copyright to an audiovisual work. In connection with the doctrinal dispute regarding the cancellation of commonality of copyright, the authors present arguments in favour for such a possibility in light of the provisions of both copyright law and civil law, and they discuss the procedural provisions related to such cancellation. An important aspect of the problem addressed in this paper is also the impact of the proceedings for the cancellation of commonality of copyright on the ongoing litigation proceedings between the same parties concerning the infringement of the author’s economic rights. As a result of the analysis of the current legal status, taking into account the events of a past court case, the authors present conclusions of the law as it stands with regard to the need for changes in civil procedure – the proceedings in intellectual property cases. It should be emphasized that the addressed research problem concerning the mutual relation between the substantive law provisions and the civil procedure in the scope of cancellation of commonality of the author’s economic rights has not hitherto been described by legal scholars and commentators.

중국 테러범죄 대응수단으로써 안치교육(安置敎育)의 의미와 개선방안

In order to effectively regulate terrorist crimes, China enacted the Anti-Terrorism Law in 2015,and Article 30 of the Law stipulates Rehousing education measures. Rehousing education is a preventive measure applied to offenders who have been sentenced to a term of imprisonment or longer for terrorism or extremism offences and are deemed to be dangerous before their sentences expire and they are released. The introduction of these measures not only signalled China's strong control stance on terrorist crimes, but also demonstrated a range of options for dealing with terrorist crimes in the new era. In addition, the nature of terrorist crimes has raised questions about the effectiveness of crime prevention through punishment, so it has accepted the idea that it is necessary to regulate terrorist crimes through criminal means other than punishment, which is a result of the current globally accepted criminal policy. However, at present, China does not provide for a superordinate concept of “security measure”, and the resulting of Rehousing educationn is also Insufficient clarity, thus giving rise to much debate. In addition, in terms of the formal conditions of application, the provisions of the law did not take into account the dangerousness of reoffending by the offender, and in terms of the substantive conditions of application, the law did not provide adequate criteria for dangerousness assessment. In particular, Rehousing education is provided for in the Anti-Terrorism Law, which is an administrative law, The assessment of dangerousness is not made at the time of conviction, but rather a separate post- conviction assessment by the court. In this way, Rehousing education is actually operating independently of the criminal justice system. The procedural provisions do not clearly stipulate the timing, duration and content of the dangerousness assessment. Considering all of these, indicate that China's current system of Rehousing education has many deficiencies, which violate the principle of constitutional clarity and risk unjustifiable violations of the human rights of the accused. In this context, this article advocates for the integration of Rehousing education into the criminal justice system by integrating it with the security measures currently provided for in the Criminal Code. It also attempts to improve the formal and substantive conditions of application and the procedural and enforcement regulations of the education by focusing on the problems, and exploration of the legal basis of the Rehousing education is clarity and justified.

تصنيف الجرائم الإلكترونية وفقاً لطبيعة الحق المعتدى عليه دراسة مقارنة بين التشريع الفلسطيني والإماراتي

This research investigates the issue of the different classifications of electronic crimes, and the importance of classifying them in the criminal law, with a focus on the specificity and the importance of the right assaulted in classifying them, as well as the importance of classifying them according to this criterion at all stages of the legal process to Combatting phenomenon of electronic crime. In this study we also investigates, the approach of Palestinian and Emirati legislators in classifying and regulating the provisions electronic crimes and Communications Crimes & information technology, pursuant to Decree-Law No. 10 of 2018, and Federal Law Decree-Law No. 34 of 2021 on combating phenomenon of electronic crime. At the end of the study, the researcher reached a set of conclusions and recommendations, One of the most important of conclusions is that The classification of electronic crimes based on the criterion of the right assaulted constitutes a vital issue in confronting these crimes, just as the Palestinian legislator did not follow a specific approach in his classification of electronic crimes and their substantive and procedural provisions, as the UAE legislator did in organizing and classifying crimes according to a clear approach. One of the most important recommendations is the necessity of the legislator the need for the Palestinian legislator to make amendments to the electronic crimes Law, classify these crimes, and separate the substantive and procedural provisions within this law, as well as amend the texts of Articles (21, 28, 48) of this law.

Aspects concerning the hearing of witnesses

The subject matter of the present study consists of a theoretical and practical account of the modality of hearing the witness in the judicial process, also illustrated by the title of the present study, in this lecture I tried to deal with a series of theoretical and practical issues from the field of criminal procedure, criminalistics and penal, salts have been elaborated by various authors in the specialty polishes. We cannot talk about the key procedures applied to the hearing of witnesses, without knowing the criminal procedural provisions that regulate the given field, and at the same time, without knowing the personality of the witness from a psychological point of view. The conducted study deals with the well-known keys and methods regarding interviewing witnesses. Complete problems are addressed regarding witness depositions with obvious implications both in the criminal investigation phase and in the judicial sequestration phase. The given field has been subjected to numerous trials, taking into account the degree to which the criminalistic key procedures carry it, being a significant one, applied to the hearing of the witness, both from a theoretical point of view and from a practical point of view. The purpose and objectives of this work they consist in studying the mode of hearing the witness with a view to the fair settlement of the case. Achieving this goal requires solving several problems, respectively: Delimitation of the theoretical basis on the psychological process of forming witness statements; Identifying the rights and obligations of the witness; Defining the elements and types of information reception; Trying to remember the facts; Representation of the reproduction of facts; Presentation of preparation for the hearing of witnesses; Determining and clarifying theoretical approaches regarding the hearing of witnesses; Presentation of the means of recording the statements of the witness; The substantiation and highlighting of the general expectations of hearing minor witnesses; Highlighting the peculiarities of the hearing of other groups of witnesses. In the first chapter, I carried out a study on a general representation of the psychological process of training witness statements. Thus, I referred to the rights and obligations of witnesses, I related the elements and types of information reception, and I made an analysis on them. Also, we realized the resume of notions and the importance of the witness's statements, we highlighted the characteristics of the memorization of facts and of the reproduction of facts. In the second chapter, I made a study on the preparation procedures for the hearing of the witnesses and I related the key of the hearing of the witnesses, and in the last paragraph of this chapter I presented the means of recording the statements of the witness. In the third chapter, I performed an analysis of the general expectations of the hearing of minor witnesses and the particularities of the hearing of other categories of witnesses. In the end, I presented the impressions left after the study carried out, presenting at the same time different opinions, presumably also some recommendations regarding the studied field.

Some issues on improving the judicial system of the Republicof Kazakhstan

This article discusses some issues related to improving the judicial system of the Republic of Kazakhstan. It is emphasized that the judiciary occupies a special place in the mechanism for protecting human rights. The importance of the category of justice for the judicial system is considered, the norms of the current legislation are analyzed, and it is concluded that the term “impartiality of judges” means justice.Justice is impossible if the court is biased, and accordingly, biased justice gives rise to unfair decisions and leads to a low level of citizens' trust in the state as a whole.The article also discusses such a problem as the high workload of judges, and it is proposed to introduce the institution of assistant judges. The legal experience of foreign countries in which the institute of judicial assistants operates is analyzed. World practice shows that assistant judges directly contribute to improving the quality of the administration of justice.Particular attention is paid to the process of expanding the specialization of courts. An analysis of the administrative form of legal proceedings is carried out, as well as the provisions of the new Administrative Procedure Code.In conclusion, this article concludes that the judicial system must be stable and conservative, and a unified judicial practice must be formed.

SURVEY ON DISSENTING OPINIONS IN THE JURISPRUDENCE OF COLLEGIAL PUBLIC FINANCE BODIES IN POLAND

Dissenting opinions to the rulings of state bodies are submitted very rarely. The purpose of this article was to identify the reasons for this phenomenon in case of rulings of collegial public finance bodies, such as committees adjudicating on cases of violation of public finance discipline (including joint adjudication committee, inter-ministerial adjudication committee, adjudication committee at the Chief of Staff of the Prime Minister Chancellery, regional adjudication committees at regional accounting chambers, the Main Adjudication Committee) and rulings of local government appeal boards adjudicating on tax matters. The research was conducted using the Computer-Assisted Web Interview research technique. The research material included 67 questionnaires completed by a group of employees-adjudicators of the above-mentioned bodies. Their analysis led to the following research findings which explained why dissenting opinions to the decisions of collegial public finance authorities are submitted so seldom: rare occurrence of controversies among the members of the adjudicating panel, personality traits of the members of these bodies, and more specifically, striving to ensure their independence and a sense of collegiality. The shape of the procedural provisions governing the rules for submitting dissenting opinions cannot be seen as one of such reasons.

Administrative and economic sanctions under French commercial law

The publication examines the provisions on administrative and economic sanctions of the French Commercial Code and other acts of French legislation. It was concluded that the French experience of regulation of commercial relations is based on complex solutions involving a combination of private-law and public-law regulation.
 It is substantiated that during the last century the commercial legislation of France was saturated with public legal provisions. The new French Commercial Code of 2000 incorporated a significant number of provisions that are public law, including administrative and criminal sanctions.
 The presence of provisions in the French Commercial legislation, which by nature of administrative influence on business entities can be recognized as administrative and economic sanctions, is established in many spheres of relations. These sanctions include typical penalties imposed on economic entities for antitrust violations, violations of reporting and other rules of conducting commercial activities, as well as other numerous sanctions of an organizational nature. It is substantiated that the disciplinary responsibility of certain professions in commerce defined in the FCC can be qualified as a type of administrative and economic sanctions relevant to the Ukrainian legal sense.
 Taking into account the experience of French commercial law, it was concluded that the ideas of reducing the discretion of state bodies when applying sanctions to business to eliminate the risks of corruption and abuse are not confirmed in modern European legislation. It is obvious that this follows from the quite reasonable assumption that the fight against corruption should affect the specific offender, and not destroy the effectiveness of the state's response to offenses, including in the business sphere.
 Several trends in the legislative regulation of administrative and economic sanctions in France have been identified, including attempts to solve the problems of the ratio of administrative sanctions and criminal penalties on legal entities, the expansion of judges' approaches to the assessment of administrative sanctions imposed on merchants from the point of view of compliance with procedural provisions and respect for human rights.
 It was concluded that the introduction of criminal liability of legal entities into national law cannot take place without an analysis of the problems caused by relevant institutions in foreign countries, in particular in France.

Construction Legislation – Current and Future in the Legal System of the Slovak Republic

Abstract The importance of addressing the effective functioning of competence execution in the construction sector primarily lies in its impact on the efficiency and quality of these competences. Currently, in Slovakia (SR), municipalities exercise the competences of spatial planning and building regulations within their transferred competence from the state. Through the government’s program statement for the years 2020–2024, the SR government committed to abolish municipal building authorities. With the new legislation that becomes effective on April 1, 2024, there will be a reverse transfer of construction competence from municipalities to state administration, to the newly created Office for Spatial Planning and Construction of the Slovak Republic and regional building authorities.The authors take a critical approach to the original construction legislation (de lege lata) as well as to the newly adopted laws on construction and spatial planning in terms of substantive and procedural provisions, noting the exclusion of the application of Administrative Code in spatial and building proceedings. Through our research on this issue, we suggest de lege ferenda two alternatives regarding the exercise of construction competences at the municipal and state levels and the preservation of dual jurisdiction in building proceedings according to the current administrative procedure.

Procedural Challenges of Cross-border Cooperation and Consistency in Personal Data Protection in the EU

Abstract Data protection is an increasingly important topic in the European administrative field at national and cross-border levels. Such a trend reflects different phenomena in contemporary society, which further leads to a more focused concern for a harmonised elaboration by the Member States despite their autonomy, in principle, regarding EU law implementation. However, as revealed by the Slovenian case in this article, the European Data Protection Board and national supervising authorities, mostly information commissioners, express the need to regulate some issues more decidedly. Interestingly, yet not surprisingly, their focus is on procedural aspects, as according to administrative science and several European Commission documents, procedure strongly influences the results. As a result, the article elaborates on the relevant procedural issues to be addressed to ensure a harmonised enforcement of the General Data Protection Regulation (GDPR) in force since 2018. Various research methods are employed, combining qualitative, normative, and comparative analyses and quantitative approaches, emphasising statistical data obtained from annual reports for 2020, 2021, and 2022. The results show a lack of procedural provisions in several aspects, including the definition of the parties to the procedure and their defence rights, particularly access to the file, to be heard, and complain, as well as one-stop-shop access to legal protection, deadlines, and investigation powers. Such gaps are expected to be covered by procedural institutions enshrined in National Administrative Procedure Acts (APA). However, as suggested by the Slovenian experience, such a solution is minimal due to differing national regulations and relatively low awareness of APA relevance in data protection even among supervising authorities. Hence, the authors argue that there is a need to develop and adopt standard EU rules to regulate such issues. Points for Practitioners The article refers to data protection within theoretical, normative, practical, comparative, and national dimensions. In addition to analysing statistical data regarding procedural issues of cross-collaborative application of GDPR in the Member States - primarily Slovenia - the article provides practical implications of legislative, organisational, and IT adaptations required for harmonising EU-wide enforcement of GDPR. The insights provided herein can support the development of similar solutions in other EU countries. Therefore, the research findings are relevant for practitioners from various European administrations who are in charge of implementing GDPR and, specifically, supervising its implementation, as well as for policymakers and legislators in their respective areas of data protection and administrative procedural law. The findings will also benefit the European Commission when drafting new legislation to enhance cooperation and consistency between Member States in enforcing personal data rights set by GDPR.

Sustainability and Constitutions: Constitutional Law and the Dilemma of the Future

Abstract This article deals with the emerging concept of “sustainability”, that, according to the empirical research presented here, is mentioned in the text of 67 constitutions, very often in relation to the environment or with the rights of future generations. As the vast majority of those references consist in very general substantive provisions, needing legislative or judicial implementation, the article deals with the challenges brought by “aspirational constitutions” and with the role of the courts in their enforcement. Finally, I maintains that, in order to achieve the effectiveness, constitutions should include procedural provisions aimed at integrating sustainability instances (throughout specialized bodies) into the legislative process.