ScienceRise: Juridical Science

Legal nature of freedom of will: fundamental ideas and definition

Viktor Savchenko — 2023-09-13

The study aims to determine the legal nature of freedom of will, its definition and its place in the legal system as an idea, principle and norm. Research methods were chosen to consider the set goal and tasks: general and unique scientific methods of scientific knowledge of legal phenomena. In particular, the following research methods were applied: comparative-legal, formal-logical, systemic-structural, dialectical and others. These methods were used in their interdependence. The methodology contains information on philosophical aspects, methodological foundations of scientific knowledge, study of the structure and main stages of research. The paper examines the combination of two definitions, freedom and will, taking into account the legal specificity. The study proves that freedom in law is the possibility of behaviour not prohibited by law and the absence of coercion, except in cases, provided for by law. Will, in law, is the ability to control one's actions and manifestation from the outside, conscious regulation of one's behaviour, which is not limited to the legally defined possibility of behaviour. It is noted, that freedom has a passive character as the possibility of specific behaviour, and will is the active use of one's rights and opportunities. Will is the active use of freedom. The author emphasizes that although free will has a transcendent basis, it is inherent in law, confirmed by its global manifestation in legal science and practice. It is emphasized, that free will is a multi-layered, complex legal concept with a fundamental meaning. The position on the possibility of understanding freedom of will as a legal idea, an idea-principle, an idea-institute and an idea-norm that are not directly enshrined in normative legal acts, but reflected through the content of other legal institutions, principles and norms based on it, is substantiated. It is proved, that in the broadest sense, freedom of will in law is a legal idea, and the author's definition is proposed

Legal custom and other rules established by practice: issues of correlation

Marian Bedrii — 2023-09-13

The article is devoted to the issues of the comparison between legal custom and other rules, formed by practice. In particular, the correlation of legal custom with the practice of state authorities, legal precedent and personal business practice is considered. Identifying the relationships between them makes it possible to understand the meaning of the corresponding phenomena. Differences in the legal nature of the mentioned phenomena cause the fact that some are sources of law, while others are not. The acquisition or loss of certain parameters (features) can lead to the transition (transformation) of one phenomenon into another with corresponding consequences.

It is explained, that the practice of state authorities is not an independent form of law, but can create such forms - legal custom, legal precedent, etc. It can also create quasi-legal phenomena – agreements between governing subjects, clerk habits, etc. The criteria for distinguishing between legal custom and legal precedent are defined: subjects, the nature of law-making practice, the intensity of such practice, the justification of validity and content, the level of certainty and formalization, as well as the scope of legal action. A legal custom is a general social practice, which consists in repeating certain actions several times or refraining from them by a wide range of subjects. Instead, legal precedent is formed by the special practice of the competent authority in the course of law enforcement, which is most often expressed in a specific judicial or administrative decision.

It has been found, that business practice is able to create two basic types of rules for contracting parties – legal customs and rules of personal business practice. The first of them are characterized by generality and in terms of legal consequences are equated to the norms, contained in the legislation. Instead, the latter bind only specific counterparties, and therefore are equivalent to the terms of the contract, concluded between them. The use of the term "custom" to delineate the rules, formed by personal business practice, is not only contrary to its nature, but also creates a terminological imbalance in law of obligations

Incomplete mechanisms of authorities in issues of ensuring the functioning of the Ukrainian language as a state language

Anastasia Midina — 2023-09-13

The article is devoted to a comprehensive study of the current legislation regulating the issues of ensuring the functioning of the Ukrainian language as a state language. Analyzed such basic legal acts as the Constitution of Ukraine and the Laws of Ukraine "On ensuring the functioning of the Ukrainian language as a state language", "About Higher Education". It is determined, that the status of the Ukrainian language as a single state language in Ukraine is determined exclusively by the Constitution of Ukraine, and the procedure for the functioning and use of the state language is exclusively determined by law. The current legal acts contain gaps that are persistent.

Based on the results of the study, the author's vision of ways to regulate the imperfection of the mechanism of state power has been formed. Namely, it is proposed to supplement Article 10 of Section III of the Law of Ukraine “On Ensuring the Functioning of the Ukrainian Language as a State Language” with part 4 as follows: “as an alternative, the level of proficiency in the state language by persons, defined in the first and second parts of Article 9 of this Law, is certified by a document with Unified State Electronic Database on Education. This clarification in some cases will help simplify the mechanism for assessing the level of proficiency in the state language of military personnel serving in higher military educational institutions as scientific and pedagogical workers, as well as eliminate negative reactions from society regarding the failure to confirm the level of proficiency in the state language of persons applying for individual elective positions (Deputies of the Verkhovna Rada of Ukraine). After all, all citizens of Ukraine are equal before the Law and proper language skills are an integral part of professional competence, a guarantee of success in the profession, as well as an indicator of the general culture of the individual.

In addition, the article emphasizes that insufficient legal work and legal culture of local officials remain the problematic issues, faced by contract military personnel serving in the positions of scientific and pedagogical workers in institutions of higher military education. Therefore, one of the ways to increase the effectiveness of legal awareness of both military personnel (under contract) in the security and defense sector and officials of public authorities is to strengthen the work in teams on the interpretation of legal norms and ways to implement them

Legal concerns regarding the protection of minors’ personal data in compliance with national legislation and GDPR requirements

Olha Yavor — 2023-09-13

The article highlights the legal concerns surrounding the protection of minors' personal data. The writers have conducted an original study of the sources regulating civil and labor relations in the field of acquiring and using personal data. The expansion and use of information technology and online communications can potentially lead to the violation of personal rights by the owners of personal data, both in workplace settings and in the daily lives of ordinary residents. The purpose of this article is to highlight issues concerning the collection, storage, use, and dissemination of the personal data of a minor, as well as to develop methods to protect the personal data of a child based on a comprehensive analysis of international acts, Ukrainian legislation, unique literature, and case law materials pertaining to the protection of personal data of a minor.

Based on the analysis of national legislation and case law of the European Union, the author concludes that the right to personal data protection is one of the forms of realization of the right to respect for private and family life. The obligation to protect person's rights to processing and storage of his or her private information is a negative obligation on the part of both the State and the owners of personal data.

The article addresses current difficulties concerning the security of children' personal data under current civil and medical legislation in Ukraine and other countries. The provisions of the General Data Protection Regulation, the California Consumer Privacy Act, and Ukraine's "On Personal Data Protection" Law are compared. Possible steps to establish further protection of children's personal data during collection and processing, whether utilizing websites, video games, online purchases, and so on, are proposed.

The paper concludes that state functions should be executed without necessitating individuals' consent for the collection of personal data. Personal data processing should be carried out within the framework and on the basis of Ukrainian laws and regulations, taking into account international conventions in this area. The analysis of methods for safeguarding children's personal data enabled the identification of supplementary avenues for data protection. These include acquiring copies of personal data by both children and their parents, rectifying inaccuracies, completing incomplete data, exercising the 'right to be forgotten' and the 'right to erasure' of personal data, invalidating transactions, and seeking compensation for material and moral damages arising from the unlawful use of personal data

Electronic money, cryptocurrencies and payment systems: some trends in the legal regulation in the context of digitalization of public finance

Ievgenii Alisov — 2023-09-13

The article is devoted to certain legal aspects of the impact of the FinTech-industry on public finance. The emergence of new various financial services and instruments requires their appropriate legal assessment and effective legal regulation. Despite numerous publications and scientific studies of various aspects of the manifestation and application of FinTech, The Theory of legal regulation of digital finance is at the initial stage of its formation and is fragmented.

The paper reviews special literature, devoted to the problems of legal regulation of virtual assets and related payment services. It emphasizes the need to observe a balanced conservative nature of legal regulation of financial relations in the context of the introduction of digital financial technologies, taking into account the tasks of protecting both public interests and ones of individuals. Based on the analysis of the current legislation, trends towards breaking the state issue monopoly due to the introduction of electronic money in the economy are revealed.

The conclusions and theoretical generalizations are presented, the main of which are: 1) cryptocurrencies as alternative units of account pose a threat to the dominance of public currencies, as they make competition between private financial agents and states and their associations possible; 2) the issue of legal assessment of cryptocurrencies has not yet been finally resolved, including their legal nature remains debatable; 3) in its essence, electronic money is a kind of "electronic bill", but does not meet the formal characteristics of such a security; 4) there is a tendency to weaken the imperativeness of legal regulation of the sphere of monetary circulation fundamental for public finances by ensuring local rule-making within individual payment systems

Some issues of legal liability for violations of environmental protection legislation

Oleksandr Kalian — 2023-09-13

The classification of the environmental protection legislation of Ukraine has been carried out. For this purpose, Ukrainian legal acts were analyzed and systematized according to various criteria. The scientific literature, devoted to the issue of legal responsibility for violation of the norms of laws, in which the right to nature protection is enshrined, was studied. It has been proven, that in the conditions of globalization, environmental regulations must take into account international standards in the field of environmental protection, in particular, the achievements of the World Trade Organization and the European Union. The content of certain legal documents of international communities in this area has been clarified.

The types of legal responsibility are outlined. Some of them were considered in relation to the legal consequences for violating environmental legislation. In particular, material and disciplinary responsibility is characterized as having an indirect effect on environmental protection through employees of the state environmental inspection. This approach is due to the fact that the effectiveness of environmental legislation largely depends on the quality of work of the relevant employees.

At the same time, the issue of bringing offenders to economic and legal and other types of legal responsibility is considered.

It has been established, that mitigating the consequences of military actions on the territory of Ukraine requires the improvement of the institution of legal responsibility for violations of environmental regulations. Therefore, the main codified acts that regulate it, such as the Code of Labor Laws of Ukraine, the Code of Ukraine on Administrative Offenses, the Economic Code of Ukraine and the Criminal Code of Ukraine, were analyzed. Separate changes to regulatory legal acts are proposed.

In general, this research is based on the statement about the possibility of improving the state of nature by applying measures of responsibility to violators of environmental norms. This will make it possible to mitigate the consequences of military operations on the territory of Ukraine

An exploratory study on albinism killings in Umhlabuyalingana settlements of Kwazulu-Natal Province, South Africa

Witness Maluleke — 2023-09-13

People with Albinism are often terrified as the nature and extent of this crime continue increasing. Africa is mainly dealing with this issue, and South Africa appears to be one of the countries grappling with this horrific crime. Thus, this study’s main objective was to explore the Albnism killings of Umhlabuyalingana of KwaZulu-Natal (KZN) Province, South Africa, focusing on the nature of this practice and the perceptions of community members on this scourge. This qualitative study adopted the case study research design, aided by an exploratory research objective. About Twenty (20) participants were selected in Umhlabauyalingana area, using the convenience sampling technique; they were all subjected to one-on-one interviews. The collected data were analysed using the inductive Thematic Content Analysis (TCA) method. This study establishes that albinism genocide has an adverse effect on the livelihood of people living with albinism in the community. This scourge do affects their daily lives, hugely affecting performance of their duties without fear of being abducted. Moreover, individuals closer to the potential victims also fear for the lives of their loved ones. Therefore, albinism killings affects the entire community and people closer to the potential vitims/victim. For recommendation:visible and responsive programmes must be established across South Africa

International legal standards for the protection of internally displaced persons: theoretical and practical aspects

Nataliia Kaminska — 2023-09-13

The article analyzes the system of international legal standards for the protection of the rights and freedoms of internally displaced persons, their doctrinal sources, and mechanisms for ensuring them. The purpose of the article is to study the existing international legal standards on the protection of the rights and freedoms of internally displaced persons, their theoretical, contractual and institutional foundations, implementation problems and identification of improvement prospects.

It is substantiated, that the system of standards for the protection of IDPs constitutes a kind of international mechanism for ensuring the status, first of all, the rights and freedoms of IDPs, the corresponding guarantees, which are regulated by the norms of universal, regional and special treaties, are implemented by authorized subjects at various levels and spheres of life. The standards of the universal, supranational, regional levels, ones of mandatory legal force and recommendatory, permanent and temporary, etc. are distinguished.

Compared to refugees, who have a special mechanism of international protection, IDPs acquire protection indirectly, as they are under the legal protection of their country of citizenship and residence, its government, etc. Attention was drawn to the significance of the Guidelines of 1998, which are based on numerous acts of the Council of Europe, the EU, etc. However, the existing standards regarding IDPs do not have a unified character, as well as the corresponding institutional mechanism.

Therefore, at the national level, the authorized bodies are assigned a significant amount of tasks, functions, and powers to ensure the rights and freedoms of IDPs, guarantee their implementation and protection, restore violated rights, and implement international standards and best foreign practices. Therefore, it is natural to improve the legislation of Ukraine, ensure effective and accessible procedures, and integrate IDPs into the life of the community, society and the state. It is expedient to activate our state in international law-making on the issue of IDPs for the solution of existing problems, first of all, their social protection, electoral rights, housing and land rights, provision of legal assistance, etc

Effective means of legal regulation of foreign trade

Serhii Pyroha — 2023-09-13

The article proposes means of state-legal regulation of foreign trade, in particular legal, economic (in particular tax), political, financial and administrative instruments. The main shortcomings of the legislation are analyzed, which make it possible to effectively optimize taxation, carry out illegal export of capital and demand compensation from the budget. In order to avoid erosion of the tax base and profit shifting, a single object of taxation is proposed – value added, which is determined by the sum of factor incomes of the payers: wages fund and profit. Substantiated formation principle of the fair market value (price), which is equal to the sum of added value, VAT, charged on it, depreciation of means of production and costs, determined by the fair market value of goods/services, used in production. The established correspondence between the fair market price and the added value allows you to accurately determine the size of the tax base (VAT, personal income tax, profit tax and social contributions) and excludes any known methods of tax optimization. The amount of taxes paid determines the monetary equivalent of the added value and the increase in the sales price at each stage of production and distribution, which excludes the possibility of artificially reducing the tax base and/or transferring profits to jurisdictions with low taxes. The introduction of added value and its components as a single base of basic taxes and fees excludes weak capitalization and any other deductions from the tax base. The proposed definition of a single tax base significantly simplifies the administration of basic taxes and contributions and exhausts measures for the implementation of paragraphs 3, 4 and 5 of the BEPS plan.