Київський юридичний журнал

RESTRICTION ON PUBLIC SERVANTS AS A COMPONENT OF THEIR LEGAL STATUS UNDER THE CONDITIONS OF THE LEGAL REGIME OF MARTIAL LAW

Oleh Hubanov — 2024-12-30

This article is devoted to the analysis of restrictions in the activities of public servants in Ukraine. Theoretical approaches to defining restrictions and clarifying their place in the system of the legal status of public servants are analyzed, considering professional and functional approaches. Special attention is paid to the regulatory provision of restrictions for public servants. It is found that restrictions in the public service system are designed to balance between the implementation of their powers provided for by law and the permissible limit of sanctioned state power, which is delegated to public servants or granted in another way. Restrictions can be implemented and manifest their functional purpose in different ways, in particular: act as an element of the legal status of public servants in a functional sense; act as a deterrent factor in the implementation of the duties of public servants, setting the limits of the implementation of their rights (provided that their double interpretations are not allowed); act as a criterion for the legitimacy of the activities of public servants, that is, those legal grounds, adhering to which it can be argued that a specific public servant performs his powers and exercises his rights in a clearly defined legal (regulatory) field; act as a burden placed on public servants when they perform their powers; be a basis for holding them accountable in case of their violation. Considering the essence of public service and its purpose, restrictions must be normatively defined, which gives them a legal character. The impact of restrictions on the implementation of the legal status of public servants under the special legal regime of martial law is separately analyzed. It is established that restrictions on public servants during the special regime of martial law may also concern, in addition to restrictions related to the performance of their labor function, issues of financial control of activities, termination of civil service, remuneration, promotion within the service career, etc.

AXIOLOGICAL DETERMINANTS OF PUBLIC SERVICE IN UKRAINE

Tamara Hubanova — 2024-12-30

The article is devoted to the theoretical and practical (normative) analysis of the axiological prerequisites for the formation and axiological manifestations in the system of functioning of the institution of public service. It is found that in the system of functioning of public service, values form the powers and functions of public service subjects and cease to be declarative abstract concepts but acquire a new law-making content. It is established that one of the features of legal axiology is the complexity of its forecasting, which is explained by its close connection with the actual state of development of social relations. The axiology of public service is considered in the context of its normative certainty. It is found that the axiology of public service determines its effectiveness and efficiency, reflects the main mission of public service – serving the interests of people and society. The fact of a direct connection between the manifestations of the axiological function of law in the context of the implementation of the tasks of the service and its public nature is proven, which is mediated by the connection with the state and the fact that the state itself forms the public service. At the same time, attention is focused on the objectification of the values of the public service within the framework of the legal norm. It is proposed to consider the axiological determinants of the public service through the prism of the anthropology of law, since it is in the context of the anthropological manifestations of law that it is appropriate to consider the values of the public service, since such an approach makes it possible to balance and reconcile the fact that the values of the public service are formed by the state for its representatives, and anthropocentrism makes it possible to correctly look at the place and role of values in the process of their implementation by the subjects of the public service. It is found that values are a general concept, and principles and norms are subordinate and interdependent. It has been established that the principles of public service can exist at the level of conditions, foundations, and concepts, and can be transformed into a legal norm, as well as that not all principles of the functioning of public service are values, since they can regulate intra-organizational issues of its activities.

THE PLACE OF MATERIAL RESPONSIBILITY OF PUBLIC SERVANTS IN THE SYSTEM OF LEGAL RESPONSIBILITY

Valeriia Chernyshova — 2024-12-30

The article is devoted to the study of the nature and place of material responsibility of public servants in the system of legal responsibility of the specified subjects. Various theoretical approaches to the definition of material responsibility are analyzed, which outline its features and mediate in the system of deterrence of negative consequences of public service activities. It is found that scientific approaches to the definition of material responsibility differ, and most often the essence of material responsibility is associated with civil responsibility. It is established that the material responsibility of public servants should be considered as an integral element of their legal status, which determines a separate place for this type of responsibility in the system of legal regulation of public service activities. Analysis of the current regulatory and legal regulation of the material responsibility of public servants allows us to establish the incorrectness of the procedure for its application, which is clearly defined by the provisions of the articles of current laws and negatively affects its implementation, the main goal of which is to restore the violated legal status, violated rights, freedoms and legitimate interests of private individuals from arbitrariness and unlawful activities of public service entities. It is concluded that the material responsibility of public servants has common features with civil responsibility, however, the current regulatory does not replace these types, but allows them to exist together, which sometimes provokes situations of difficulty in determining a specific type of responsibility, which consist in determining the composition of the offense, and especially the subjective side. The main practical problem that remains in the legal sphere of regulating the procedure for holding public servants responsibility is the unjustified dispositivity and insufficient regulation at the level of the provisions of the Law of Ukraine “On Civil Service”, which allows for the discretion to make decisions on the appropriateness of holding a specific public servant liable.

LEGAL REGULATION OF MEDICAL CANNABIS USE IN UKRAINE

Anatolii Berlach — 2024-12-30

The article provides a comprehensive theoretical and legal analysis of the regulatory framework governing the use of Cannabis plants under martial law in Ukraine. The provisions of the Law of Ukraine “On Amendments to Certain Laws of Ukraine Regarding State Regulation of Cannabis Plants (Cannabis) Circulation for Use in Educational Purposes, Educational, Scientific and Scientific- Technical Activities, Production of Narcotic Drugs, Psychotropic Substances and Medicines to Expand Patient Access to Necessary Treatment” dated December 21, 2023, and its impact on the development of Ukraine’s healthcare system have been analyzed. Based on a systematic analysis of scientific literature, international legal acts, and national legislation, potential risks and prospects for implementing legal regulation of cannabis use for medical purposes have been identified. Special attention is paid to ensuring proper control over medical cannabis circulation under martial law and developing mechanisms to prevent abuse. The organizational and legal mechanisms for controlling the cultivation, production, and distribution of cannabis-based preparations have been studied, and the compliance of national legislation with international standards in this field has been analyzed. The analysis of international experience in legal regulation of medical cannabis use, particularly the practices of European Union countries, has been conducted, and possibilities for its adaptation to Ukrainian realities have been determined. The specifics of the legal regime for licensing activities related to the cultivation and processing of cannabis plants, as well as the peculiarities of state control in this area, have been examined. The article addresses issues of liability for violations of established requirements regarding medical cannabis circulation and analyzes law enforcement practices in this field. Particular attention is paid to the problems of harmonizing national legislation with European Union law and fulfilling Ukraine’s international obligations regarding narcotic drug control.

ABUSE OF OFFICIAL POSITION IN THE SPHERE OF HEALTH CARE OF UKRAINE DURING A FULL-SCALE WAR

Oleksiі Palladii — 2024-12-30

The article thoroughly examines the issues of abuse of power in Ukraine’s healthcare sector through a detailed analysis of current Ukrainian legislation and practical actions by state authorities. It highlights the key problems arising from such abuses, particularly in the context of a fullscale war, where transparency and accountability are critically important. The authors provide a comprehensive definition of “abuse of power” based on Ukrainian legislation, particularly the Criminal Code of Ukraine, and present scientific approaches to describing this concept. The article explores theoretical and practical aspects of the issue, focusing on the operation of medical and social expertise under martial law. It identifies the primary type of fraud during examinations, such as issuing unjustified health assessments to avoid military service or obtain excessive social benefits. Specific examples are included to illustrate the scale of the problem. Particular attention is paid to the legal liability of medical professionals who exploit their positions for personal gain or to benefit third parties. The article details the applicable laws for prosecuting offenders and outlines potential measures to strengthen accountability. Additionally, the paper analyzes the U.S. experience in preventing abuse in the healthcare sector. It lists key U.S. legislative acts, such as the Health Care Fraud and Abuse Control Program, the Stark Law, the Health Insurance Portability and Accountability Act, and the Federal Anti-Kickback Statute. The authors note that strict penalties, a robust system of inspections, and transparency in the U.S. effectively address such problems. Finally, the article briefly outlines the current state of healthcare reform in Ukraine’s medical and social expertise system. The primary focus is on digitalizing all stages of the process to minimize opportunities for abuse. The necessity of reviewing previous MSEC decisions, particularly regarding the establishment of disabilities and allocation of social benefits, is emphasized as a critical step in reforming the system.

THE CIVIL CODE AS A SYSTEMIC FACTOR IN THE FORMATION OF LEGAL SYSTEMS OF COUNTRIES BELONGING TO THE ROMANO-GERMANIC LEGAL FAMILY

Mykhailo Kravchenko — 2024-12-30

The article focuses on the role of civil codes in the formation and spread of the Romano-Germanic legal family. The study is based on the analysis of legislation of Ukraine, France, Germany, Austria and Switzerland, as well as domestic and foreign specialty literature on the development of private law in the Romano-Germanic legal family. The methodological basis of the study is comparative legal, historical, structural and functional research methods. Their application made it possible to clarify the role of civil codes in the formation and spread of the Romano-Germanic legal family in continental Europe and beyond. Their application allowed to comprehensively analyze the subject of research and form a clear author’s position on the issues that were studied in the scientific article. This study has made it possible to state that the codification of private law is the systemic factor which influenced the formation and spread of the Romano-Germanic legal family. The civil codes of France, Austria, Germany, and Switzerland did not remain the property of their respective nations. Their influence went beyond the national legal systems and led to the spread of this legal family far beyond the borders of continental Europe. First of all, civil codes are the chains that connect the legal systems of the countries united in the Germanic legal family. It is found that the ideological basis of civil codes is a number of factors. The legal heritage of Ancient Rome, which is summarized in the Corpus iuris civilis, is central among them. Other sources of civil codes include canon law, legal customs, case law, academic law, etc. It is stated that the legal system of Ukraine was formed under the influence of countries belonging to the Germanic subgroup of the Romano-Germanic legal family. It is argued that the experience of Germany and Austria can become a benchmark for Ukraine: a) for a better understanding of the legal structures which were borrowed into Ukrainian legislation from the law of these countries; b) for the search for new effective models of legal regulation which have proven their effectiveness in these countries and can be introduced in Ukraine; c) to interpret legal categories, explain their nature, content and purpose.

ECONOMIC ACTIVITY IN THE HEALTHCARE SPHERE

Olena Chernenko — 2024-12-30

The article considers some aspects related to the implementation of economic activities in the healthcare sector. The quality and accessibility of medical services are ensured by the following components: human, scientific, organizational, financial, intellectual, information resources, and material and technical support. Health care institutions that carry out economic activities are formed and function as state, municipal, private or based on a mixed form of ownership. The specified entities must use new technologies, create new services, resist competitors, calculate risks, and form a professional team. The main goal of state and municipal health care institutions is the implementation of state policy in the field of health care, primarily the implementation of medical (rehabilitation) services to the population using the tools of state financial guarantees of such services. As a rule, the main goal of private medical and rehabilitation institutions is to make a profit for the owners of such institutions. The services provided and the goods sold in the healthcare sector are special, since it is on their quality that human health and life depend. The implementation of the outlined services, the promotion of goods on the market are closely related to their advertising, which must comply with the general principles of advertising, to which the legislator refers: legality, accuracy, reliability, the use of forms and means that do not harm the consumer of advertising. However, despite the clearly defined requirements for advertising of medicines in the legislation, cases of dishonesty are not uncommon. Unfair advertising deliberately manipulates information about the drug and its properties and encourages people to self-medicate. Business entities engaged in economic activities in the healthcare sector face a number of problems, including personnel, economic, political problems, changing legislation, low solvency of the population, slow investment attraction, competition, etc. Therefore, state policy should be aimed at proper legal regulation of economic activities in the healthcare sector in order to protect the rights of consumers of medical services and create conditions for the stable development of entrepreneurship.

ASPECTS OF OPENING A PRIVATE KINDERGARTEN

Dasha Кalientsova — 2024-12-30

Today, there are a number of private kindergartens in Ukraine that provide quality educational services and serve as a worthy alternative to state-run kindergartens, which can be particularly difficult for parents to enrol in due to long waiting lists and additional requirements. In view of this, there is a growing demand for new private kindergartens given their popularity. Therefore, it was important to investigate the legal aspects of opening a private kindergarten. This issue is not sufficiently studied by scholars, so it was necessary to conduct our own research. The purpose of the article is to analyse the main provisions defining the legal aspects of establishing a kindergarten. First of all, the article provides a detailed definition of a private kindergarten as a privately owned institution of pre-school education and upbringing which belongs to the All-Ukrainian Union of Private Institutions of Ukraine and which provides education and upbringing of a child aged 1.5 to 6 years inclusive. The author examines the peculiarities of the status of a private kindergarten and important aspects of its functioning. Unlike a public kindergarten, a private kindergarten is distinguished by the fact that it is privately owned, and the education and upbringing of children in such a kindergarten is carried out on a private basis. It is determined that the main legal acts regulating its functioning and which should be taken into account when establishing it are the Constitution of Ukraine, the Law of Ukraine ‘On Education’, the Law of Ukraine ‘On Preschool Education’ and the Basic Component of Preschool Education. It is established that in order to establish a private kindergarten, a person must have the status of an individual entrepreneur or have a registered legal entity - in any case, the main activity must be the provision of educational services. In addition, licensing of educational activities of a private kindergarten is required. The author analyses the provisions of the current legal acts regulating the relevant aspects of establishing such an educational institution. Thus, these legal conditions are mandatory when establishing a private kindergarten. Otherwise, a person has no right to provide educational services of this kind. The study made it possible to identify all the legal aspects of establishing a private kindergarten which must be observed.

MILITARY PERSONNEL AND THEIR CRIMINAL RESPONSIBILITY FOR VIOLATING THE RULES OF USE AND STORAGE OF MILITARY PROPERTY

Roman Lavronov — 2024-12-30

This scientific article is dedicated to a detailed analysis of the issues surrounding the criminal liability of military personnel for violations of rules governing the use and storage of military property, a critical aspect of maintaining discipline and efficiency within military structures. The article examines the motivational factors contributing to such violations, including the insufficient awareness of military personnel, a lack of proper educational influence, and gaps in internal control systems. It identifies the primary causes of these violations as poor management of military property, inadequate professional training of personnel, and the absence of preventive control mechanisms. The analysis of existing disciplinary procedures reveals their limited effectiveness, which is attributed to inconsistencies in the regulatory framework, ambiguity in sanctions, and the lack of effective mechanisms for monitoring the implementation of disciplinary decisions. Significant attention is paid to international experience in regulating the use of military property, particularly in the context of armed forces participating in peacekeeping operations. The necessity of harmonizing national legislation with international standards to enhance control efficiency is emphasized. The article proposes several specific measures to improve management systems and strengthen discipline among military personnel. These include the introduction of stringent monitoring mechanisms, regular training sessions to enhance legal awareness, the modernization of property accounting and storage systems, and fostering a culture of accountability and consciousness within military structures through the development of motivational programs. In conclusion, the findings of the study can serve as a foundation for further improvement of the regulatory framework and practical measures aimed at enhancing discipline, optimizing the management of military property, and preventing violations within military structures. The article aims to contribute to systemic changes in approaches to ensuring discipline and efficiency in the military sector.

MILITARY LEGISLATION OF THE WESTERN UKRAINIAN PEOPLE’S REPUBLIC (HISTORICAL AND LEGAL ANALYSIS)

Oleksandr Vovk — 2024-12-30

This article reveals the author’s understanding of the system of acts of military legislation of the Western Ukrainian People’s Republic, determines their general division by types of legal regulation of socio-political relations in the military sphere. The work was carried out using worldview, general scientific, special and specific scientific methods of cognition - of which the historical and legal method is preferred, which characterizes the significance of the norms of domestic military law of 1917–1921. It was established that the subjects of rule-making of the ZUNR in general and in the military sphere in particular include: the Ukrainian National Council (UNRada), the State Secretariat, sectoral secretariats, the UNRada Division, the Labor Congress, the Plenipotentiary Dictator Yevhen Petrushevych (since June 9, 1919), district commissars and military commandants, as well as district UNRadas as self-governing bodies. It was investigated that legal acts adopted by certain subjects of the rule-making of the ZUNR had different names, namely: introduction, declaration, report, law, instruction, information message, memorial, order, circular, operational set, message, dictator’s power, oath, dictator’s order, protocol, report, recommendations, order, order, order, agreement, universal, system, resolution, staff, circular, etc. It was determined that the sources of military law of the ZUNR were: constitutional laws of the ZUNR; ordinary laws of the ZUNR; subordinate normative acts of central government and administration bodies; local acts of local executive bodies, local self-government and departments: acts of military command (chiefs of associations, military units and institutions); international legal treaties, military legal customs. It was analyzed that the acts of military legislation of the ZUNR provided: the legal basis for protecting the national security of the ZUNR; regulation of the activities of bodies that ensured the military security of the ZUNR; the procedure for organizing and operating public services in the armed forces of the ZUNR; the most important provisions relating to the performance of military duty; the legal status of servicemen and social protection of their family members; the legal responsibility of servicemen for committing offenses; the basis for information security of servicemen of the ZUNR; legal protection of civilians during war; the decision-making process during military operations in the armed forces of the ZUNR. It is indicated that the new military legislation of the Western Ukrainian People’s Republic confirmed the already existing army order and formalized the legal position of the military organization of the state, its organizational principles of formation and structure of the armed forces. It is noted in the conclusion that the entire complex of public legal acts of the military legislation of the Western Ukrainian People’s Republic of the end of 1918–1919, which effectively carried out legal regulation in the military sphere, should be divided into types according to their special purpose in military construction. Further exploration of the history of the sources of domestic military law is proposed to be carried out on the basis of comparative legal research in order to streamline and improve the modern legal system of Ukraine.

INSTITUTIONAL AND LEGAL BASIS OF CIRCULAR ECONOMY DEVELOPMENT IN THE COUNTRIES OF THE EUROPEAN REGION

Olga Mikichurova — 2024-12-30

The paper covers the analysis of the transition to a circular economy of European member states of the United Nations Economic Commission for Europe, in particular, the institutional and legal principles of the development of a circular economy in the countries of the European geographical area. The author notes that among the sustainable development goals, the achievement of which was identified by the UN in 2015 as priority, the leading place is occupied by “responsible consumption and production”, which is the basis of a circular economy. This goal has become the basis of the policy of European countries, which is separately emphasized in the paper. Thus, the paper analyzes positive examples of institutional interaction at the national and international levels in the field of transition to a circular economy in European countries, models of organizing institutional cooperation within the framework of states regarding the transition to a circular economy, as well as problems that arise along the way. Particular attention is paid to circular economy roadmaps as an important element of economic transformation for European countries. The author also analyzes the legal practice of the European Union (EU) in respect of the transition to a circular economic model of member states, the adopted European Green Deal for the period until 2050, and the EU’s cooperation with international governmental and non-governmental organizations in the field of transition to a circular economy. In particular, with the Global Alliance on Circular Economy and Resource Efficiency, the UN Economic Commission for Europe, UNEP, UNDP and others. The article also highlights the work of circular economy funds and programs in European countries and Ukraine. In addition, the paper emphasizes the presence of a circular economy monitoring system developed by the EU, which includes production and consumption, waste management, secondary raw materials, as well as competitiveness and innovation. For the first time in the domestic doctrine, the paper provides a definition of circular law. Thus, circular law is defined as a set of legal norms that determine and regulate social relations in the field of a circular economy. Due attention is paid to the institutional and legal foundations of Ukraine’s transition to a circular economy, in particular, the EU project for Ukraine of 2023: “Circular Economy – Promoting Sustainable Production and Consumption Models in Ukraine” and Ukraine’s ways of implementing it are analyzed.

STATE OF PUBLIC ADMINISTRATION IN UKRAINE AND AT THE INTERNATIONAL LEVEL

Yelyzaveta Zushchyk — 2024-12-30

The article reveals the current state of public administration in Ukraine, comparing it with the experience of other countries. The concept of public administration was analysed and its characteristic features, which distinguish interrelation with concepts, such as: state governance, public governance. Such characteristic features were: lexical load, subject composition, and powers. This distinction was made on the basis of a number of normative and legal acts, works of scientists in the field of administrative law, that justify and illuminate modern problems of administrative law, international programs in which Ukraine is a member. And therefore, it was ascertained, that public administration includes state governance and public governance, which creates the ambiguity of official translations of international programs in the Ukrainian language, which interpret terms “public administration”, “public governance” as state governance. The difference between the concepts of “public administration” and “public management” was clarified by using terminology from foreign scientists, who reveals “public management” through the prism of activity by public servants. Defined, that at the international level, the category of public servants is more profound, comparing to Ukraine, and there is an acceptable opinion in the foreign information and scientific space that explores these two concepts, that new “management” includes “administration”. It was concluded that the institution of public administration directly depends on the state of public service, public servants and the limits of their activity. As a result, it was noted that the development of public administration, public service and the formation of new, an international understanding of “public management” will improve the activity of the public sector, provision of public services and will create a positive environment for the improvement of those institutions.