Адміністративне право і процес

науково-практичний журнал заснований Київським національним університетом імені Тараса Шевченка

#3(13)/2015

Grytsenko I. The theory of public service in the Soviet legislation and Soviet legal science in the 20-th years of the XX century.

The article is devoted to the research of public service institute. This research is made through analysis of the Soviet legislation and Soviet scientifi c concepts, that took place in the twenteenth years of the XX-th century. Normative acts, that regulated issues concerning public service are considered. Attitude of scientists to legal nature of this institute is analyzed. Specifi c features of public offi cials and the essence of the term «public officer» are determined.

 Berlach A.I., Kurzova V.V. Legal aspects of Ukraine’s participation in ensuring the non-proliferation regime for biological weapons

Іn the article we analyzed the legal basis of international cooperation of Ukraine in the sphere of ensuring the regime of non-proliferation of biological weapons and dual-use technologies, that can be used for it’s development. Reveals the author’s vision of modernization of biological security of Ukraine in the framework of the Global initiative to prevent the proliferation of weapons of mass destruction and the American programme on «Cooperative threat reduction». It is stated the possibility of a biological hazard for the population and environment in connection with carrying out on the territory of our country’s biomedical and biotechnology research by foreign countries. On the basis of the analysis revealed shortcomings and gaps in the legal regulation in this sphere of relations; recommendations regarding improvement of the current legislation of Ukraine with the aim of creating an effective and effi cient national system of biosafety and biosecurity.

Melnik R.S. Restriction of the Right to Freedom of Peaceful Assembly: the Nature and Conditions of Implementation.

The author of the article attempts to analyze the nature and conditions of implementation of the restriction of the right to freedom of peaceful assembly by administrative courts and public administration entities. Based on the analysis of the practice of implementation of the right to freedom of peaceful assembly by individuals and the results of the activity of authorized subjects in this sphere the author concludes about the existence of the following forms of the restriction of this right, namely: a complete ban of a planned assembly; restrictive measures concerning the assembly; compulsory termination (dissolution) of the assembly that is being conducted. Each of the mentioned types of restrictions of the right to freedom of peaceful assembly is analyzed in the article in details. The author formulates a number of provisions and recommendations, which to his mind are necessary for guaranteeing the just and full realization of the right to freedom of peaceful assembly by individuals. In particular, it is stressed in the article that:ban on conduction of the assembly can be decided by an administrative court only for a particular assembly, thus it should not extend to the potential mass events, where the executive or local authorities have not been notifi ed about their conduction; decisions about full ban are admissible only in exceptional cases; any restriction about realization of the right to freedom of peaceful assembly may be used by a court only in the interests of national safety and keeping public order – aiming to prevent riots or crimes, protect health care of people or the rights and freedoms of others; a court should obligatory indicate the way of restriction concerning the realization of the right to peaceful assembly; a court has the right to make a decision about the restriction of the content (topic) of the assembly in case, when the thoughts that cannot be protected by the right to freedom of thought and speech, on freedom of expression of views and believes; conduction of the assembly with a peaceful purpose, but which was not notifi ed to the relevant administrative authorities in advance, cannot be the reason for its compulsory termination (dissolution). Along with this, the author of the article expresses a number of proposals, which in his opinion, should be taken into account while elaborating the law on peaceful assembly.

 

Utchenko K. Y. Legal effect of the Grand Chamber of the European Court of Human Rights decisions (2015 year review)

This article provides review of the Grand Chamber of the European Court of Human Rights decisions in 2015. Author analyzed main articles of the Convention for the Protection of Human Rights and Fundamental Freedoms and relevant case-law, primarily by the Grand Chamber. Author proposed solutions, providing execution of the European Court of Human Rights decisions in Ukraine.

 

  Pukhtetska A.A. Characteristics of the deconcentration principle & it`s meaning for organization of public administration
This article contains general analysis of the deconcentration principle, peculiarities of it`s application in vertical relations. Here we`ve compared general features of the signifi cant institutional principles for public administration, such as decentralization, centralization & deconcentration, their introduction into national legislation in European countries, as well as proposed further implementation into the Ukrainian legislation & decision-taking activities by administrative authorities.

Hliborob N. Issues of organizational forms of rendering administrative services.

    Article considers the main practical issues of organizational forms of rendering administrative services. Author described factors, that cause ineffi ciency of Centers of administrative services: in particular, gaps and contradictions in legal regulation of rendering administrative services, lack of information to the public about the innovations in rendering administrative services, poor controls, lack of motivation and poor responsibility from the center’s staff. It is stressed, that it is necessary to provide electronic form of rendering administrative services through the Unifi ed State Portal of administrative services, to provide best practices of leading democracies in the world. 

Karas B. O. Administrative procedural status of citizens, who suffered as a result of the Chernobyl catastrophe

    The structure of the administrative procedural status of citizens, who suffered as a result of the Chernobyl catastrophe, is being analyzed. It’s key elements have been highlighted and examined. It is proposed to consider the citizenship of Ukraine; administrative procedural legal personality; administrative procedural rights, freedoms and legal interests; administrative procedural duties as the elements of administrative procedural status.

    The article is devoted to the examination of administrative procedural status of citizens, who suffered as a result of the Chernobyl catastrophe. The main aim is elaboration of it’s structure. The rationale of chosen topic is justifi ed by a few reasons, one of them is the absence of legal research in this area. Such a high interest to the category of “administrative procedural status» has appeared recently and directly related to the approval of the Code of administrative adjudication of Ukraine in 2005. The article explores the main legal researchers’ positions to the determination of administrative procedural status. Particularly, it analyzes the concept of legal status and administrative legal status.

Mikhovska M.S. Electronic appeals of citizens and electronic petitions in modern Ukrainian legislation

    The article is devoted to review of legislation in the sphere of electronic appeals of citizens and electronic petitions in Ukraine. It is becoming increasingly diffi cult to ignore the fact, that electronic government is a major area of interest within the fi eld of public administration. The issue has raised importance in light of recent amendments to legislation, considering electronic form of documents equal to the standard paper form. Author analyzes legislation in the sphere of appeals of citizens, defi nes main problems in the modern period and discusses the importance of legislative determination of “electronic appeals» and “electronic petitions». Special attention is given to the description of electronic petitions as a new form of appeals of citizens in Ukraine. The following conclusion can be drawn from the present article: electronic petitions is a kind of appeals of citizens, submitted in the electronic form that can be directed to certain subjects of public administration with the aim of solution specifi c problems, that contain public interest.

Telychko M. V. Control over observance of administrative legal procedure of state registration of material rights on the real estate and their burdens

    The article is devoted to analysis of the control over observance of administrative legal procedure of state registration of material rights on the real estate and their burdens in Ukraine. The author emphasizes important issues of it`s classifi cation, that allows to group different kinds, forms, methods of state control with the aim of facilitation of the legal adjusting of identical groups of relations. In this article the author suggests to classify state control over administrative legal procedure of state registration of material rights on the real estate and their burdens using different grounds.

Vashchenko Y. V. Licensing in energy sector of Ukraine in terms of providing independence of the energy regulator

    The article explores legal issues of licensing of activity in the energy sector of Ukraine in terms of providing independence of the Energy Regulator – National Energy and Utilities Regulatory Commission. Based on the analysis of the theoretical approaches and the legislation of Ukraine the recommendations on the enhancement of the legislation of Ukraine on licensing powers of the Energy Regulator have been developed. The new Law on Licensing of Types of Economic Activities was adopted by the Verkhovna Rada of Ukraine on March 2, 2015. Several confl icts of laws have arisen due to new changes. In particular, there are different provisions on the development and approval procedure of licensing conditions in the new Law on Licensing and in Laws that regulate relations in certain energy sectors. It is concluded that the new legislative requirements restrict the independence of the energy regulator in Ukraine in part of its licensing powers.

    Based on the analysis conducted it is recommended to stipulate the list of licensing powers of the energy regulator in the Law on National Regulatory Commissions (suggested to be developed). In particular, the powers to develop and approve the licensing conditions should be granted to the energy regulator. Moreover, in order to encourage the independence of the energy regulator it is necessary to exclude the requirement on the consideration of the licensing conditions and licensing regulations of the energy regulator with the special authorized licensing body, as well as the provisions on supervision powers of this body in relation to the licensing powers of the energy regulator from the new Law on Licensing.

Baliuk G.I., Kovalchuk T.G. Legislative Enforceability of Ecological Safety in the Electric Power Industry

    The article examines the legislative enforceability as a component of the mechanism of environmental safety ensuring in the electric power industry. The authors analyze the types of negative impact of various power stations, in functioning of which is accompanied by environmental risk (except for nuclear power stations) that infl uences the quality of natural environment, human life and health.

    The authors came to the conclusion that the relations of negative impact prevention of electric power industry objects on the natural environment quality and human life and health is properly regulated by the current legislation of Ukraine as well as the relations of elimination of negative consequences from the factors of natural and anthropogenic character in case of emergencies at electric power industry objects.

Pozhydaeva M. On the necessity of teaching fi nancial-legal disciplines in the institutions of higher education with specifi c academic conditions for police training

    This article substantiates author’s opinion about the necessity of teaching fi nancial-legal disciplines in the institutions of higher education with specifi c academic conditions for police training. It analyses scientifi c papers and regulatory legal acts, that indicate a requirement of fi nancial-legal knowledge for development of fi nancial legal consciousness for future police offi cers.

    The emphasis has been devoted to the main powers of the police, provided for by the Law of Ukraine “On the National Police». Because good mastering as administrative-legal and criminal-legal knowledge, as fi nancial-legal knowledge, in educational process will contribute to full realization of these powers by future police offi cers.

    Financial-legal disciplines (Financial Law, Tax Law, Exchange Law, Banking Law)help students, cadets to defi ne the subject-matter of fi nancial, tax, banking legal relations, which may bedamaged by offenses. Materials of these disciplines have to prepare future police offi cers to orientation in a huge number of fi nancial regulatory legal acts, which are constantly changing. Learning the basics of the current banking, fi nancial, tax, exchange and economic legislation enables better understanding and mastering such fundamental disciplines as Criminal Law, Administrative Law, Criminal Investigation Technique, forms a more perfect legal thinking in students, cadets. That’s all need for effective practical activity of police offi cers in prevention, detection and suppression of criminal, administrative offenses in banking, fi nancial, tax, economic area, also in conducting pretrial investigation.

Gouberska N. L. Licensing of the educational activities as an administrative procedure

The content and specifi c features of licensing of the higher educational establishments as administrative procedure are considered. Analyzes of the main stage of realization of administrative procedure of licensing of the educational activities in Ukraine were prepared.

Zaiarnyi O. Objective side of administrative information offence: the concept, structure and features of legal qualifi cation

    This article investigates the objective side of administrative information offences under the laws of Ukraine, considers it’s elements and also defi nes the features of legal qualifi cation of the wrongful act committed in the information sphere. Several changes to improve administrative and tort legislation of Ukraine in the part of clarifi cation of qualifying features of unlawful acts are proposed.

    The author classifi es the components of administrative information offences according to the features of the objective side such as a wrongful act form, place, time, ways and means of committing the delict and types of its illegal consequences. The author also pays attention to the problems of legal qualifi cation of the mentioned administrative offences considering the objective features which either mitigate or aggravate the penalty.

    Problematic aspects of the normative formulation of such feature of the objective side of administrative informative offences as wrongfulness are identifi ed. The author also defi nes the ways to improve the administrative and tort law in this fi eld of legal regulation.

    The article proves that the objective side as a part of administrative information offence has the most optional features in its structure, is characterized by the most

informative content in comparison with other elements and reveals the external properties of the offence as a legal confl ict in the information sphere.

Shablienko A.S. Administrative and legal regulation of e-commerce (documents turnover) in accordance with the laws of the countries of continental legal system

    This article is devoted to disclosure of the main problematic issues in compliance with administrative legal regulation of electronic turnover according to the legislation of western European countries of the continental legal system. Author analyzed positions of the Governments of the countries of the European Union, as well as their recommendations, main aspects of electronic commerce regulation in Germany and France.

 Якщо дискусія щодо місця митного права в системі права триває й часом стає доволі гострою, то мало хто з укладачів навчальних програм з підготовки фахівців різних напрямів, освітньо-професійних програм з правознавства сумнівається в доцільності впровадження навчальної дисципліни «Митне право». Звідси попит на навчальну й методичну літературу відповідної спрямованості. Утім побіжного огляду наявних видань на митно-правову тематику достатньо, щоб зробити невтішний висновок щодо невідповідності попиту й пропозиції. Так, з-поміж останніх дидактичних праць слід назвати навчально-методичні посібники 2012 р. [2] і 2013 р. [3], але вийшли вони доволі обмеженим тиражем, до того ж очевидною є їхня специфіка у першому випадкуфіскальна,у другому правоохоронна.

 Komzyuk V. Administrative or criminal responsibility for breaking customs rules? (About contradictions of regulations of paragraph 458 of the Customs code of Ukraine)

    This article’s purpose was to analyze considerations of administrative liability, by researching scientifi c opinions of scientists and to reveal contradictions, disparity to scientific opinion, law, grounds of legal liability of regulations of paragraph 458 part two of the Customs code of Ukraine and to propose amendments to remove present contradictions.

    In the article is examined the question of administrative liability for breaking customs law, motives of administrative and criminal liability are determined, impossibility of holding responsible for crime, breaking customs law.

Ponkin I. V., Ponkina H. I. Public fi nancial support of professional sport: pro et contra 

    The article investigates legal possibilities, conditions and limits of public fi nancial support of professional sport. This article describes the arguments against public fi nancial support of professional sport and the arguments for public fi nancial support of professional sport.

 

 

Zurkan M. І. Proceeding in administrative cases regarding public service

We have analyzed the legal relations, arising from public service disputes. The characteristics was given to the types of public service, we have specifi ed the differences between them as well. We have identifi ed the features of public service: professional activities of the citizens of Ukraine; realized on the basis of the Constitution, law and other normative and legal acts; according to its content, it involves realization of the tasks and functions of the state, bodies of state power or local administration institutions, payment is done using the state funds or the funds of local budgets.

We have given the characteristics to the parties of the disputes regarding public service; explained who among the participants of legal relations can possess legal personality of the plaintiff and defendant. The plaintiffs in the disputes regarding public service are: a) persons which pretended to occupy the public post; b) public offi cials; c) persons displaced from public service. The cases regarding public service can have as a plaintiff the physical person – citizen of Ukraine, in other words, the public serviceman as only the citizens of Ukraine have right for public service. The physical person – plaintiff can also not have the status of serviceman if it is

about the candidate for the relevant post. The defendants in the cases subject of consideration are state institution or local authorities: a) for occupation of the post, on which the person pretended; b) with whom the person has the relations of public service; c) from which the person is displaces; d) which legal act is a conditions for accepting the person for the post or displacing him or her from it.

It has been proved that the important role in the proceeding regarding consideration of the dispute regarding public service is played by the third parties which act in the administrative case already brought to the court between the parties for defence of personal rights, liberties and interests of physical persons, rights and interest of legal entities in the sphere of public legal relations.

Regarding the rules of subject-matter jurisdiction, the suits of public servants are considered by: local general courts as administrative courts when the defendant is a body or offi cial of the local authorities; district administrative courts when the defendant is state body, power body of ARC, regional councils, Kyiv and Sevastopol municipal councils, their offi cials; by the Higher administrative court of Ukraine as a court of fi rst instance in cases regarding suits of public offi cial concerning appeal against acts, actions or inactions of the Verhovna Rada of Ukraine, President of Ukraine, High council of justice, High qualifi cation commission of judges of Ukraine and under the suits of the Head of the Verhovna Rada of Ukraine, his deputies regarding long-term suspension of the powers of people’s deputy of Ukraine in case of non-performance of the demands on incompatibility.

The application of the terms of application to the court in the cases regarding public service is well grounded. Regarding the fi rst part of the article 99 of the Code of Administrative legal proceeding of Ukraine, the administrative suit can be presented within the term of application to the administrative court determined by this Code or other laws. The general term of application to the court is a six-month term which shall be calculated from the day when a person got to know or had to get to know about violation of his/her rights, liberties or interests (part 2 article 99 of CAP of Ukraine).

 

The consideration of the disputes which arise from the relations of public service, shows a huge number of gaps and non-coordination in the legislation regarding public service as well as in the administrative legal proceeding itself. For this reason before legal elimination of the defi ciencies, the legal practice permits to decrease the cases of false application of the norms of material and procedural law, prevents occurrence of legal collisions in this area, provides the unity of law application which increases the effi ciency and effi cacy of public service as well as administrative legal proceeding.

 

Pysarenko N.B. On Peculiarities of the Formation of the National Concept of Administrative Process

    The article analyzes different approaches to understanding the essence of the administrative process. The conclusion, that now most of the researchers, who represent the national administrative and legal science, demonstrate commitment to the «broad» conception of a proposed legal phenomenon, has been made. It has been established that the obvious disadvantage of this concept is that it involves the perception of this process as an external manifestation of an activity of both representatives of public administration and representatives of judicial bodies. The following requires including the proceedings that are extremely different as to their purpose to the structure of the administrative process. It has been noted that several domestic researchers of Administrative Law support the other, so-called «judicial» concept. It has been ascertained that today, when specialized courts, which operate under rules of the separate Procedure Act – the Code of Administrative Process of Ukraine, were established in our country, one may consider as return to the designated concept. However, this return must be gradual, «evolutionary». It must be preceded by the establishment of an updated notion of the modern Ukrainian system of Administrative Law, its sub-sectors and institutes, within which the rules that determine the procedures for the exercise of government agencies, empowered bodies, and representatives of public authorities their managerial functions would be categorized prudently and reasonably.

Bulba H. S. Judicial reform in Ukraine: Current State and Prospects for improvement

    The problem of reforming the judiciary in Ukraine currently fi nds its relevance, because the most important prerequisites for the development of civil society should be high-quality, stable legislation and effective justice that can really ensure protection of rights and freedoms, the interests of society and the state. The aim of the research or the aim of the article is to develop scientifi cally based – proposals for further reform of the judicial system of Ukraine.

    Already 24 years of independence of our judicial system of Ukraine «experienced» some major reforms, a large number of developed concepts that are not destined to become acts of legislation. But fundamental changes made after judicial reform of 2010, which radically changed the three components of domestic justice – judiciary, status of judges and the judiciary. Instead, judicial reform 2014-2015 years started with the adoption of normative - legal acts, namely the Law of Ukraine «On restore confi dence in the judiciary in Ukraine» from 08.04.2014 № 1188-VII, «On cleaning power » from 16.09.2014 № 1682 -VII, «On ensuring the right to a fair trial» from 12.02.2015 № 192-VIII, which has to or should settle disputes concerning the reform of the judiciary in Ukraine and take into account international experience. However, after above-mentioned reform the judicial system of Ukraine still needs some changes: we should implement or synonym legal and organizational principles of access to justice and transparency; to create a legal and organizational basis of independent and effi cient judicial system; eliminate cases of selective justice and ensure the right to a fair trial for all persons to whom the investigation is underway, including the right to review the verdict higher authority; to adopt anti-corruption package, which includes the declaration of income and expenses, as well as access to public information for each declaration; ban the interference of the executive and legislative authorities on the activities of the judiciary in Ukraine.

Pasichnyk A. V. Representation in administrative process: from resolving contradictions to new institutes of administrative law.

    The adoption of the Code of Administrative Adjudication of Ukraine has become a landmark event in the Ukrainian legal science. Said document introduced new standards of interaction of government agencies with natural and legal persons. However, the introduction of signifi cant number of new regulatory structures in normative fi eld requires serious work on the analysis of their interaction with existing rules of law. Thus, the purpose of the article is to identify the cases of confl ict between administrative procedure and substantive law, the disagreements between administrative law and administrative law theory, and to offer the guidance of their removal from the legal framework of the state. Based on the analysis of legislation, we concluded that the Code of Administrative Adjudication of Ukraine does not allow public servants to have representatives in the administrative process. Moreover, the institute of representation is absent in Ukrainian administrative law and science. 

 

Iwona Koza.Regional development and social-economic potential of town districts

    Both the Polish economy as well as global, capital, next to the ground and work, is one of the three fundamental factors. Today, both in the context of the assessment of the situation of the enterprises, targeting local authorities and communities, as well as assessing the effectiveness of the investment, the concept of capital strongly focuses around the same intellectual capital, as a current or potential resource creation, or zooming in on the wealth of the enterprise, community, or nation. In this context, it is worth a glimpse of expansive Polish reality of the communities. 

    The first objective of the article is an approximation methods, so that you can see the expansive reality of Polish cities, which for more than a quarter of a century is one of the Polish local government structures. These realities will be reviewed methods to capture links and dependencies between cause and effect diagrams social-economic phenomena.

    The second objective of this article is an analysis of the needs of the district authorities in the fi eld of information, from the economic and social environment and the possibilities of the collection of such information through modern, innovative methods. The culmination of the article will show the results of tests carried out on the basis of the above-characterized method.

 

Lotyuk O. S The international component of the formation of the legal status of civil society and its institutions

    The article is devoted to the theory and practice of defi ning fundamental principles and standards of the organization and functioning of civil society and its institutions in international treaties of Ukraine and other international instruments. Analyzes the international component of the law and ways of development of civil society as a voluntary community of socially oriented national and international NGO. We investigated the prospects for the implementation of the values of civil society in the context of the Association Agreement between Ukraine and the EU. Identifi ed prospects of implementation of international standards development and the functioning of civil society in the current legislation, in particular with regard to the initiated constitutional reform in 2015.

 

Kovalenko Zh. A. Neoparadigm of prosecution bodies of Ukraine: condition and prospects of development

    The main strategic goal of Ukraine is to join the European community. This causes the formation of our country as an independent, social, legal and, in particular, democratic state. However, the implementation of democratic principles is particularly problematic because of irrational distribution of powers between state institutions, ineffective institutional and legal framework of their operation etc. Destructive processes that occur in the legal system as a result of formation of civil society necessitate improvement of legislation by reformation.

    The reform of the prosecution bodies of Ukraine is one of the major reforms. The reformation of the prosecution bodies of Ukraine in accordance with European standards, changes are caused by the entry into the European Union, the existence of the prosecution bodies of Ukraine in the form in which they were before are the main reasons that determine the need for this reformation.

 

Demchenko I. Issues of self-regulatory, professional self- governance and non-governmental organizations activities in health-care sphere

    In foreign countries, self-regulatory, professional self-regulation and other forms and types of organizations prove their effectiveness at healthcare sphere. In Ukraine, despite some medical community and patient’s interest, such forms and mechanisms do not have broad support in the national health system. The process of implementation of self-regulatory, professional self-regulation organizations at healthcare sphere is a quiet taught challenge in a prospect of health care reform. That’s seems to be important to achieve a balance between the interests of the medical community, the rights and freedoms of patients, state’s nforcement functions and state’s core obligations in health care sphere and business interests of private health care providers.

    That should be clear to distinguish between the following: what is self-regulatory organization, professional self-regulation and what is their difference from existing institutions, associations and other types of organizations at healthcare sphere at Ukraine. The main characteristic of self-regulatory organization and professional self-regulation is their basis on a common market of certain service or organization that unites professionals and specialist of certain type. Thus, the common market of certain service actually means any activity as a medical practice, under the licensing conditions, which apply to all entities, regardless of the legal form and ownership. Regarding organization that unites professionals and specialist of certain type that is a person with appropriate special education – higher medical education. Thus, self-regulatory organization created mostly by entities, and professional selfregulation – by professionals, specialists at particular sphere.

    We are convinced that self-regulatory – is a question of delegation of the power, in other words, self-regulatory organizations replace state regulation at a specifi c sector or sub-sector. Contrarily, professional self-regulation has for the main aim to develop higher performance standards than stipulated in the normative legislation – in other words, which is established by State. This made supplement, not replacement of state regulation, though the possibility to transfer certain powers still exist. The current legislation of Ukraine at healthcare sphere contains the basis for the implementation of self-regulatory organization, professional self-regulation. Thus, the basic principles of health care in Ukraine, inter alia, include decentralization of public administration, development of government institutions and the independence of health workers on the legal and contractual basis. Defi nitely, entirely replacement of state regulation impossible. Generally opportunities for self-regulatory organization, professional self-regulation are: the establishment of certain rules (in medical fi eld – especially medical standards); the control over their observance; the issue of liability for their violation. All these aspects are discovered from a position of possible implementation at current legislation. 

 

Fedotov A. P. Rotation and single-level displacement of personnel of regional customs direction of the State Fiscal Service of Ukraine: theory and practice

    The article investigates the theoretical and practical bases of the use of rotation and the single-level displacement to the personnel customs as the territorial bodies of the customs directivity of State Fiscal Service of Ukraine. The views of scientists on staff rotation of public servants have been analyzed. It is proved that the single-level displacement of personnel of Customs of State Fiscal Service of Ukraine is similar to single-level rotation of personnel of Customs of State Fiscal Service of Ukraine. Attention is focused on the fact that the planned and well thought-out rotation and single-level displacement is not applied in practice of offi cial transfer of personnel of Customs of State Fiscal Service of Ukraine. Changes to the current legislation on personnel rotation in sphere of the customs are proposed.

 

Voitsekhovska I. M. The concept, content and features of the reinsurance business

    The article gives the general characteristics of reinsurance activities as separate type of economic activities. The author proves the inadmissibility of identifi cation of insurance and reinsurance activities and examines existing problems associated with it, and offers possible solutions. The article also analyzes the main features that characterize any economic activity and sets their special meaning inherent exclusively for reinsurance business.

    In particular, the article gives the necessity of delimitation of concepts such as: the need for insurance and reinsurance, insurable and reinsurable interest, insurance and reinsurance services. The article also shows the need for the existence of separate entities of reinsurance activities – reinsurers, which should not be confused with insurers, as well as the introduction of separate orders of the establishment and operation of data subjects. Based on the analysis the author concludes that reinsurance activities are separate and distinct kind of economic activity, which is characterized by its own distinctive features and has a particular meaning. Author also demonstrates the need for legislative confi rmation of the defi nition «reinsurance activity» and the introduction of its adequate legal regulation.

Golovachova A. S. Sources of legal regulation of insurance and reinsurance mediation activity

    For the operation of any economic activity as an orderly, organized system there is a set of social controls – the sources of law. Both a general theory of law and the branches of law lack unanimity in understanding of the concept of «source of law». The reason for this is the presence of various concepts of thinking and ambiguity of the defi nition of «source of law». The theory of economic law includes both a broad approach to understanding the sources of law and a narrow approach. By taking the broad approach, the author considers the following structure of sources as the best. It consists of three groups: 1) formal legal (institutional) sources, which coincide with the law as a way to shape the internal organization and external expression of conduct contained in the law; 2) other social sources, which exist as certain facts of social reality; 3) legal practice, which holds a special place in the sources of economic law, and is the result of legal regulation having an impact on enforcement of law. It is advisable to extrapolate the said classifi cation to the sources of legal regulation of insurance and reinsurance mediation as a type of economic activity.

    According to the author, the institutional sources include legislation on insurance mediation: the Constitution of Ukraine, the Commercial and Civil Codes, the Law of Ukraine «On insurance» and other laws, international treaties ratified by Ukraine, and some subordinate regulations. The second group of the sources the author studies the business practices, which play a rather important role in the regulation of the insurance market and its participants. The participants of the insurance and reinsurance activities are expected to observe and use national and international business practices, especially if these relations are complicated by a foreign element. The last group of the sources includes the author’s answers to the question: is it possible to include legal practice to the sources of legal regulation of insurance and reinsurance mediation? Today, legal practice in Ukraine is not de jure determined by a source. The function of the courts may indeed be in some ways similar to the legislature, but only when they eliminate gaps in the legal regulation of specifi c legal relationships by using the analogy of law or law and business practices.

    Thus, to summarize the above, we can conclude that today the main source of legal regulation of insurance and reinsurance activities still remains the relevant current legislation of Ukraine. But for the full and progressive development of the insurance market as a whole one should take into account other social sources, which exist as certain facts of social reality (business practices) and legal practice.

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