STATISTICAL AND COMPARATIVE CHARACTERISTICS OF THE EFFICIENCY OF THE JUDICIAL SYSTEMS OF EUROPEAN COUNTRIES (BASED ON MATERIALS OF THE EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE – CEPEJ)
STATISTICAL AND COMPARATIVE CHARACTERISTICS OF THE EFFICIENCY OF THE JUDICIAL SYSTEMS OF EUROPEAN COUNTRIES (BASED ON MATERIALS OF THE EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE – CEPEJ)
УДК 34(3/9):347.9
DOI 10.37566/2707-6849-2024-3(48)-2
Oleksandra YANOVSKA,
judge of the Criminal Court of Cassation within the Supreme Court,
representative of Ukraine in CEPEJ, doctor of legal sciences, professor
STATISTICAL AND COMPARATIVE CHARACTERISTICS OF THE EFFICIENCY OF THE JUDICIAL SYSTEMS OF EUROPEAN COUNTRIES (BASED ON MATERIALS OF THE EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE – CEPEJ)
The article examines individual statistical indicators of the functioning of the judicial systems of European countries and their impact on determining the efficiency of the administration of justice. The analysis is conducted based on materials of the European Commission for the Efficiency of Justice (CEPEJ) obtained during the assessment process as of 2022. The author conducts a comparative analysis of statistical data on the efficiency of the judicial systems of European countries, which will contribute to the further development of systemic changes in the national judicial system of Ukraine.
The article emphasizes that there are indicators of the functioning of the judicial system that are objectively measurable (for example, the timeliness of consideration and resolution of court cases), and there are a number of indicators that generally contribute to ensuring the efficiency of justice (specialization and stability of the judicial system, professionalism of judges and court staff) or, in general, are a consequence of the functioning of an effective judicial system (public authority and trust in the court).
Despite the full-scale military aggression against Ukraine, the national judicial system has shown signs of resilience and stability, demonstrating indicators corresponding to the average European efficiency of the administration of justice as of 2022. Despite difficult organizational conditions and staff shortages, the duration of consideration of court cases in Ukraine does not exceed the median value for the member states of the Council of Europe. The financial support of the judicial system in Ukraine demonstrates the one of the lowest indicators among all participating states in the assessment carried out by the CEPEJ, and is also characterized by a significant imbalance in the distribution of budget funds between the bodies of the justice system in the country. In order to overcome the identified problems, it is advisable to implement a mechanism for identifying trends in the reform of the national judicial system through quantitative and qualitative analysis, with the aim of further developing a specific and targeted strategy with the definition of goals at different levels (judge, court, judicial system). It is also important to establish regular monitoring mechanisms to track the implementation of target indicators, namely, the establishment of fair and effective judicial proceedings, which will ensure the predictability of judicial decisions, their timeliness and the possibility of their execution, which, in turn, will contribute to strengthening people's trust in the court and will be crucial in ensuring a healthy business and investment environment.
Keywords: efficiency of the judicial system, duration of judicial proceedings, fair judicial proceedings, staffing of the judicial system, financing of the judicial system.
References
IppolitiaR., Triab G.Efficiency of judicial systems: model definition and output estimation. Journal of applied economics. 2020. Vol. 23. №. 1. P.385–408. URL: https://doi.org/10.1080/15140326.2020.1776977
From E. Anatomy of human destructiveness. Philosophy: textbook (from the origins to the present): education. manual / edited by Acad. National Academy of Sciences of Ukraine L. V. Huberskyi. Kyiv. 2009. P. 270–279.
Zelenetsky V. S. On the structural-functional approach to determining the effectiveness of problem solving in the criminal process of Ukraine. The issue of the constitutional and legal status of the Prosecutor's Office of Ukraine and improvement of its activities. Kharkiv, 1999. P. 95–97.
Moskvich L. M. Effectiveness of the judicial system: a conceptual analysis: Monograph. Kharkiv, 2011. 384 p.
Smalyuk R. How is justice measured? Reanimation Package of Reforms. January 12, 2022. URL: https://rpr.org.ua/news/yak-vymiriuiut-pravosuddia
European judicial systems CEPEJ Evaluation Report 2024: Evaluation cycle (2022 data). Part 1: General analyses.Council of Europe. 2024.September. URL:https://rm.coe.int/cepej-evaluation-report-part-1-en-/1680b272ac
European judicial systems CEPEJ Evaluation Report 2024: Evaluation cycle (2022 data). Part 2: Country profiles.Council of Europe. 2024.September. P. 178–181. URL: https://rm.coe.int/fiche-pays-partie-2-en/1680b21e99
Prylutsky S. V. Civil society in the mechanism of judicial power and justice: theoretical and legal aspect. Journal of the Kyiv University of Law. 2010. No. 1. P. 236–243.
Khotynska-Nor O. Z. Theoretical, legal and praxeological principles of judicial reform in Ukraine: autoref. of the thesis ... Doctor of Law. Sciences: 12.00.10 / Kyiv National Taras Shevchenko University. Kyiv, 2017. 38 p.
THE FORCE OF LAW AND ITS VALIDITY IN THE CONTEXT OF DIALECTICAL LEGAL COMPREHESION
THE FORCE OF LAW AND ITS VALIDITY IN THE CONTEXT OF DIALECTICAL LEGAL COMPREHESION
УДК 340.12
DOI 10.37566/2707-6849-2024-3(48)-4
Mykhailo TEPLIUK,
Doctorof Juridical Sciences, Merited Lawyer of Ukraine,
Correspondonding Member
of National Academy of Legal Sciences of Ukraine
Deputy Secretary General, Secretariat
of the Parliament of Ukraine –Head of Central Legal Department
Oleksii YUSHCHYK,
Doctor of Juridical Sciences, Professor,
Merited Lawyer of Ukraine, Chief Research Scientist
Department of Constitutional Law and Local Self-Government
THE FORCE OF LAW AND ITS VALIDITY
IN THE CONTEXT OF DIALECTICAL LEGAL COMPREHESION
The article examines the question of the relationship between the concepts of "validity of law" and "force of law", which is key, in particular, for supporting processes of development, improvement and functioning of the informational base of legislation.
There is no doubt that access to the text of the law in its control state, which means the version of the law that is valid on the relevant calendar date, should be understood as a necessary condition for the correct application of the laws of Ukraine in solving any legal issues. We would like to highlight: the version of the certain law valid not at the time of application, but at a specific determined moment. From this arises need to form an informational base of the legislation, which would guarantee that every subject of legal relations could find an answer to the question: what is the valid (or not valid) text of the certain law at any given moment of time.
At the same time, the formation of such an informational base, as seen in practice, requires not only appropriate knowledge of legal techniques, but also a clear understanding of some general theoretical concepts, in particular, the concepts of "force of the law" and "validity of the law", as well as an understanding of their correlation. Meanwhile, legal science has not yet formed such an understanding based on a scientifically proven general theory of law.
Thus, the specific technical and legal problem of maintaining the current legislation of Ukraine in a control state requires, as a necessary condition for its proper solution, clarification of the concepts of validity and effect of the law from the point of view of a scientifically proven general theory of law. The article describes new scientific approaches to the correlation of these concepts. They are based on the previous research of the authors and can be used both for developing the general theory of law (concerning legal normative act as a cornerstone element of the legal system), and for the specific purpose of futher improvement of the informational base of legislation of Ukraine.
Key words: validity of law, force of law, legal force of law, informational base of legislature, control state of law.
References
Great Encyclopedic Legal Dictionary / edited by NAS of Ukraine Academician Y.Shemshuchenko. Second edition, revised. Kyiv, Yurudychna dumka, 2012. 995 p.
O. Yushchyk. The Crisis of understanding law and dialectical theory of law. Pravo Ukrainy (Law of Ukraine). 2016 (3), p. 258-265.
O. Yushchyk. Theoretical “shallowness” of dogmatic jurisprudence. Pravo Ukrainy (Law of Ukraine). 2016 (4), p. 139-148.
O. Yushchyk. Method of dialectic theory of law as a criterion of its scientific novelty. Pravo Ukrainy (Law of Ukraine). 2016 (5), p. 155-163.
O. Yushchyk. Sketch of the dialectical theory of law. Pravo Ukrainy (Law of Ukraine). 2016 (6), p. 156-166.
M. Tepliuk, O. Yushchyk. The Concept and Classification of Legal acts: a critical dimension. Journal of National Academy of Sciences of Ukraine. 2024, book 31 (2), p. 34-45.
M. Tepliuk. The Concept of Validity of laws in the aspect of constitutional jurisdiction. Viche. 2012 (4), p. 25-28.
PROBLEMS OF CHANGING THE VECTORS OF JUDICIAL PRACTICE IN CASES OF INVALIDITY OF A WILL AND ITS INTERPRETATION
PROBLEMS OF CHANGING THE VECTORS OF JUDICIAL PRACTICE IN CASES OF INVALIDITY OF A WILL AND ITS INTERPRETATION
УДК 347.65/68
ORCID: 0000-0003-1480-1864
DOI 10.37566/2707-6849-2024-3(48)-8
Oleh PECHENIY,
Associate Professor of the Department of Civil Law № 1
of Yaroslav Mudryi National Law University, Candidate of Juridicial Sciences
Member of the Scientific Advisory Board of the Supreme Court
PROBLEMS OF CHANGING THE VECTORS OF JUDICIAL PRACTICE IN CASES OF INVALIDITY OF A WILL AND ITS INTERPRETATION
The article presents the dynamics of the principle of freedom of will at the current stage of development of civil legislation and court practice. The author analyzes the latest legislation and court practice on the issues of invalidating wills and their interpretation. The trends in the development of the freedom of wills, the emergence of new types of wills, legal conclusions on the issues of invalidating wills, and the interpretation of wills have been studied. The article describes the specifics of determining the content of the will, when it contains the instructions of the testator regarding binding rights and obligations, including rights and obligations under pledge and suretyship agreements.
The same consequences occur if the borrower's death occurred during the consideration of the case on the creditor's claim against the borrower for debt collection. In disputed legal relations, the debtor's identity is not replaced by his heirs, even if the guarantor's claim was made in time. If in the will the testator divides the inheritance of rights and obligations according to the main and security obligations, this provision of the will must be inserted, taking into account the accessory nature of the corresponding types of security.
The author drew attention to the peculiarities of the interpretation of the will, which are problematic as they arise in practice, and proved the need to allow an expansive interpretation of the will.
In the article, the author analyzes the judicial practice of the Supreme Court on the interpretation of the will, in the case of modification of the law.
In the case of the need for the interpretation of the will, along with the literal interpretation, the supplementary interpretation of the will can also be applied as a method of clarifying the will of the testator, which requires the adjustment of approaches in judicial practice.
Keywords: inheritance law; will; interpretation; ensuring the fulfillment of the obligation; pledge; bail; freedom of will.
References
Pecheny`j O. P. Osobly`vosti vy`rishennya sporiv pro spadshhy`nu v konteksti onovlennya procesual`nogo zakonodavstva. Slovo Nacional`noyi shkoly` suddiv Ukrayiny`. 2017. # 4. S. 98–108. URL: https://slovo.nsj.gov.ua/images/pdf/2017_4_21/Pechenyy%20O.%20Osoblyvosti%20vyrishennia%20sporiv.pdf
Pecheny`j O. P. Deyaki problemy` nedijsnosti zapovitu. Chasopy`s Ky`yivs`kogo universy`tetu prava. 2021. # 2. S. 189–192. URL: https://chasprava.com.ua/index.php/journal/issue/view/83/98
Pecheny`j O. P. Vtrata chy`nnosti zapovitom. Tlumachennya zapovitu. Visny`k Akademiyi pravovy`x nauk Ukrayiny` 2010. # 4. S. 128–137. URL: https://dspace.nlu.edu.ua/bitstream/123456789/6183/1/Pechenyi_128.pdf
Kuxaryev O. Y. Teorety`chni ta prakty`chni aspekty` tlumachennya zapovitu yak special`nogo sposobu zaxy`stu prav spadkoyemciv. Chasopy`s cy`vilisty`ky`. 2020. Vy`p. 39. S. 17–23. URL: https://univd.edu.ua/science-issue/issue/4798
Minenkova N. O. Svoboda zapovitu ta yiyi obmezhennya za cy`vil`ny`m zakonodavstvom Ukrayiny` ta deyaky`x yevropejs`ky`x. Pravo Ukrayiny`. 2013. # 8. S. 280.
Wigram J. An Examination of the Rules of Law respecting the Admission of Extrinsic Evidence in Aid of the Interpretation of Wills. Published by London; Charles Hunter; 1834.
Hawkins F. V. Concise Trearise on the Constuction of Wills. 5 ed. R., Kerridge, Sweet & Maxwell Ltd, UK, 2000.
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Pecheny`j O.P. Realizaciya deyaky`x vy`div zabezpechennya vy`konannya zobov'yazannya u rusi spadkovy`x pravovidnosy`n. Naukovy`j visny`k Uzhgorods`kogo nacional`nogo universy`tetu. Ser. Pravo. 2024. Vy`p. 84. Ch. 1. S. 367, 368. https://visnyk-juris-uzhnu.com/wp-content/uploads/2024/08/84-part-1.pdf
Postanova KCS VS vid 22.03.2023 u spravi # 595/731/21. URL: https://reyestr.court.gov.ua/Review/109776236
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DETERMINING THE BEST INTERESTS OF THE CHILD DURING THE CONSIDERATION OF CIVIL CASES RELATED TO WITH THE UPBRINGING OF THE CHILD
DETERMINING THE BEST INTERESTS OF THE CHILD DURING THE CONSIDERATION OF CIVIL CASES RELATED TO WITH THE UPBRINGING OF THE CHILD
УДК 347.626:347.635/637
ORCID: 0000-0001-9124-1413
DOI 10.37566/2707-6849-2024-3(48)-13
Olha STUPAK,
The Judge of the Civil Court of Cassation of the Supreme Court
DETERMINING THE BEST INTERESTS OF THE CHILD
DURING THE CONSIDERATION OF CIVIL CASES RELATED TO
WITH THE UPBRINGING OF THE CHILD
The article is devoted to the disclosure of scientific and applied aspects of the procedure for determining the best interests of a child by courts in civil cases related to child-rearing. Results of the research. It is determined that the obligation to bring up a child is imposed on parents and consists in the implementation of a system of educational measures aimed at forming a fully and harmoniously developed personality. It is substantiated that sometimes, in the process of raising a child, divorced parents cannot agree on certain aspects of a joint approach to upbringing. It is not uncommon for one of the parents to demonstrate a state of concern (or indeed to be in such a state) about the possible negative impact on the child by the other parent, and therefore may initiate a claim to change the manner of participation in the child's upbringing determined by a court decision.
It is proved that a father and mother have equal rights and obligations and when deciding on the frequency of visits, the possibility of joint recreation, and visits to the place of residence of the parent with whom the child does not live, one should proceed solely from the interests of the child. In certain cases, if it is in the child's best interests, the court may condition visits with the child on the presence of another person, maintaining a reasonable balance between the participation of both parents in the child's upbringing. The right of a father to communicate with his child is his indisputable right, and communication between a minor child and his father is in his best interests. In the absence of a stable psychological connection between the father and the child, the child may not fully perceive him as a father, and meetings between the father and the child without the mother's presence may negatively affect the child's psycho-emotional state. It takes time to establish a trusting relationship between a father and a child, during which time communication will gradually be established and the daughter's emotional attachment to her father will be formed.
It is stated that the legal regime of martial law has made adjustments to the procedure for consideration of cases in which the best interests of the child are realized and ensured. Cases involving the establishment of the fact of independent upbringing of children are considered both in separate proceedings and in the course of action, depending on the issue to be established by the courts. With regard to the first issue – in particular, cases of establishing the fact that children are fully dependent on one of their parents – the problem has become more relevant with the introduction of the legal regime of martial law in Ukraine.
It is proved that an application for establishing a fact of legal significance is not subject to judicial review in a separate proceeding, since there is a dispute about the right of one of the parents to participate in the upbringing and maintenance of the child. Given the principle of inalienability of family responsibilities in family law and the impossibility of waiving them, including the responsibilities of raising a child, the issue of establishing the fact of independent upbringing of a child cannot be clarified without regard to the actions of the other parent and may be resolved within the framework of a dispute on the right between the child's parents under the general rule in an action.
Key words: best interests of the child, civil proceedings, participation in upbringing, change of upbringing, action proceedings, separate proceedings, establishment of a fact of legal significance.
References
Rezvova O. V. Rights and obligations of parents regarding the upbringing of a child in the family law of Ukraine. Candidate of Sciences, Doctor of Philosophy. Philos. 081 Law. Кyiv, 2021. 214 с.
Family Code of Ukraine: Law of Ukraine of January 10, 2002, No. 2947-III (as amended). URL: https://zakon.rada.gov.ua/laws/card/2947-14
Judgment of the Novovolynsk City Court of Volyn Region, case # 165/2839/17. October 23, 2018. URL: https://reyestr.court.gov.ua/Review/77332754
Judgment of the Volyn Court of Appeal composed of the panel of judges of the Judicial Chamber for Civil Cases. February 20, 2019, case # 165/2839/17. URL: https://reyestr.court.gov.ua/Review/80175104
Judgment of the Supreme Court as part of the Civil Court of Cassation. April 01, 2020, case # 165/2839/17. URL: https://reyestr.court.gov.ua/Review/88707341
Review of the judicial practice of the Civil Court of Cassation of the Supreme Court on resolving disputes over participation in the upbringing of a child Decisions entered into the USRCD for 2018 – September 2022. URL: https://supreme.court.gov.ua/userfiles/media/new_folder_for_uploads/supreme/ogliady/Oglyad_KCS_vuh_dutunu.pdf. 80 p.
Judgment of the Supreme Court as part of the Civil Court of Cassation. September 04, 2024, case # 932/665/20. URL: https://reyestr.court.gov.ua/Review/121570431
Ryhina O. M. USA: Evolution of the Doctrine of the «Best Interests of the Child of the XIX–XX centuries» Scientific Bulletin of the International Humanitarian University. Ser: Jurisprudence. 2015 # 13. Vol. 1. С. 18–21.
Judgment of the Supreme Court of Ukraine as part of the Civil Court of Cassation, June 17, 2020, case # 522/9916/17. URL: https://reyestr.court.gov.ua/Review/90021380
Judgment of the Odesa Court of Appeal, case # 522/9916/17. June 27, 2019. URL: https://reyestr.court.gov.ua/Review/82812681
Judgment of the Supreme Court as part of the Civil Court of Cassation. September 30, 2021. case # 176/1955/20. URL: https://reyestr.court.gov.ua/Review/100068068
Judgment of the Supreme Court as part of the Civil Court of Cassation. September 30, 2021, case # 176/1955/20. URL: https://reyestr.court.gov.ua/Review/100068068
Judgment of the Desnianskyi District Court of Kyiv. November 15, 2018, case # 754/9026/16-c. URL: https://reyestr.court.gov.ua/Review/78141466
Judgment of the Kyiv Court of Appeal. February 13, 2019. case # 754/9026/16-c. URL: https://reyestr.court.gov.ua/Review/79834620
Judgment of the Supreme Court as part of the Civil Court of Cassation of June 23, 2020. case # 7549026/16-c. URL: http://reyestr.court.gov.ua/Review/90021471
Judgment of the Kyiv Court of Appeal. February 13, 2019, case # 754/9026/16-c. URL: https://reyestr.court.gov.ua/Review/79834620
Judgment of the Supreme Court as part of the Civil Court of Cassation. November 19, 2020, case # 757/4643/18-c. URL: https://reyestr.court.gov.ua/Review/93053561
Judgment of the Supreme Court as part of the Civil Court of Cassation. November 18, 2020. case # 127/6439/19. URL: https://reyestr.court.gov.ua/Review/93053388
Judgment of the Rivne City Court. March 07, 2023, case # 569/14585/21. URL: https://reyestr.court.gov.ua/Review/109619319$
Judgment of the Supreme Court as part of the Civil Court of Cassation. December 7, 2023, case # 569/14585/21 of URL: https://reyestr.court.gov.ua/Review/115654117
Judgment of the Dnipro Court of Appeal. October 12, 2022, case # 210/529/19. URL: https://reyestr.court.gov.ua/Review/106720646
Judgment of the Supreme Court as part of the Civil Court of Cassation. April 05, 2023, case # 210/529/19 of URL: https://reyestr.court.gov.ua/Review/115654117
Judgment of the Zhovtnevyi District Court of Zaporizhzhia. July 22, 2022, case # 331/1868/22. URL: https://reyestr.court.gov.ua/Review/10627132824 Judgment of the Bila Tserkva City District Court of Kyiv Region. September 25, 2023, case # 357/10174/23 of URL: https://reyestr.court.gov.ua/Review/113672392
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RESTORATIVE JUSTICE AS A LEGAL CATEGORY AND INSTITUTION OF LAW: CONCEPTUAL ASPECTS OF ESSENCE AND CONTENT
RESTORATIVE JUSTICE AS A LEGAL CATEGORY AND INSTITUTION OF LAW: CONCEPTUAL ASPECTS OF ESSENCE AND CONTENT
УДК 340.1
ORCID: 0000-0002-5870-9261
DOI 10.37566/2707-6849-2024-3(48)-3
Nataliia PARKHOMENKO,
Doctor of Law, Professor, Institute of State and Law Named after V.M. Koretsky National Academy of Sciences of Ukraine
RESTORATIVE JUSTICE AS A LEGAL CATEGORY AND INSTITUTION OF LAW: CONCEPTUAL ASPECTS OF ESSENCE AND CONTENT
The article considers the phenomenon of restorative justice. Its essence, content and significance as a legal category, categories of law are determined. The necessity of accelerating the pace of development of social relations that require legal influence, the search by the State within the framework of its realization of the human rights and legal renewal function of new forms and methods of realization of state power and the fulfillment by the State of its duties through interaction with civil society. It is about strengthening the mutual responsibility of all subjects of social relations and the possibility of the state delegating certain powers to such institutions, in particular, the possibility of resolving the conflict in the field of law in an extrajudicial way - through various forms of restorative justice. Appearing within the framework of criminal legal relations, as a form of extrajudicial resolution of the dispute and resolution of the conflict, the category of "restorative justice" has now become universal, since it can be applied within different types of procedural legal relations: civil, criminal, labor, administrative, family, marriage, economic.
Consideration of restorative justice as a reflection on the legal conflict as a legal compromise and legal consensus is proposed; legal means and form of human rights protection and restoration of its violated rights; a variety of social practices and forms of interaction between the state and civil society.
In the aspect of increasing the efficiency of the legal regulation of public relations, the importance of conceptualizing the doctrine of restorative justice as a certain social practice is emphasized, which performs important from the point of view of ensuring and maintaining law and order, protecting the interests of society and the state, tasks and functions, and is gradually institutionalized in the form of an intersectoral institution of law.
Key words: restorative justice, category of law, legal category, institution of law, legal conflict, legal compromise, legal consensus.
References
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