«Law and Health Law» Course
LESSON № 4 Financial Legislation of Ukraine
(Practical – 6 hours)
Theme: Financial Legislation
v Financial Legislation.
v Basics of Administrative Law.
v Criminal Legislation.
v Financial Legislation.
Insurance in Ukraine
The Law “On Insurance” dated March 7, 1996 (the “Insurance Law”), sets forth general provisions regulating insurance activity in Ukraine. The Insurance Law provides for inter alea, the list of entities/persons which may conduct insurance activities, forms and kinds of insurance, objects of insurance, requirements to and procedures for reinsurance, execution, performance under and termination of insurance contracts, state control over insurance activity in Ukraine.
According to the Insurance Law, an insurer may not be established by less than three founders in the form of a joint-stock company, general partnership, limited partnership or additional liability company.
The insurer is not allowed to begin operating on the market until it obtains “a license on carrying out insurance activity”. Under the Commercial Code, such licenses are issued for the purpose of conducting specific kinds of insurance activities determined in such licenses (e.g. life, health insurance, investment insurance). The insurer is entitled to perform only those kinds of insurance which are covered by the respective licenses. An insurer, which obtained a license for life insurance activity is not entitled to perform any other kinds of insurance. The licenses on insurance activities are issued by State Commission for Regulation of Financial Services Markets (the “Financial Services Commission”) for a fixed term (except for life insurance licenses, the validity term of which is not indicated).
The Law “On Financial Services and State Regulation of Financial Services Markets” dated July 12, 2001 (the “Law On Financial Services”) and the Insurance Law states that insurers are deemed as financial institutions, a status that imposes certain requirements on them. In particular, financial institutions are required to be registered with the State Register of Financial Institutions maintained by the Financial Services Commission, and such registration is proved by the Certificate on Registration of Financial Institution.
The Insurance Law establishes that the amount of chartered capital of an insurer performing life insurance should be not less than Euro 1.5 million, and an insurer performing other kinds of insurance – Euro 1 million. The chartered capital of an insurer is required to be exclusively in monetary form (in-kind contributions are prohibited). The Insurance Law further prohibits chartered capital with bills of exchange, insurance reserve assets, loans, secured funds as well as other intangibles. Specific rules apply to the possibility of insurers investing into the chartered capital of other insurers. In particular, the total amount of contribution to the chartered capitals of other Ukrainian insurers may not exceed 30% of the company’s own chartered capital and the limit of investment into one insurer constitutes 10% of internal chartered capital.
According to the Insurance Law, an insurer may be engaged exclusively in the following activities: (a) insurance, (b) reinsurance, (c) financial activities related to the attraction, investment and management of insurance funds.
The Insurance Law provides for two forms of insurance in Ukraine: voluntary and mandatory. The Insurance Law sets forth an exhaustive list of more than forty kinds of mandatory insurance and a list indicating the types of voluntary insurance. Any mandatory type of insurance becomes effective only after adoption of the specific regulation on such type of insurance by the Cabinet of Ministers.
According to the Insurance Law, insurance contracts should comply with insurance rules, which are elaborated by the insurer and should be registered with the Financial Services Commission. The Insurance Law stipulates the list of essential elements of any insurance contract, which include the object of insurance, insured accidents, amount of insurance payments, and insurance tariff.
The Insurance Law sets forth general regulatory framework for and requirements for reinsurance activities in Ukraine. According to the Insurance Law, the insurer remains fully liable before the insured under the insurance contract after entering into a reinsurance contract with a re-insurer. The resolution of the Cabinet of Ministers “On Approval of Procedures for and Requirements for Performance of Re-insurance with Non-Resident Insurer (Re-insurer)” dated February 4, 2004 (the “Re-insurance Resolution”) provides for specific requirements for performance of reinsurance activities between a resident insurer and non-resident re-insurer. The Re-insurance Resolution stipulates that Ukrainian insurers are permitted to enter into reinsurance agreements only with foreign re-insurers which correspond to the following criteria: the re-insurer performed insurance activities for not less than three years and did not violate the insurance legislation of the relevant jurisdiction; the resident country of the re-insurer has enforced legislation envisaging state control over insurance activities, as well as anti-money laundering and anti-terrorist legislation. Ukrainian insurers are required to inform the Financial Services Commission within a ten-day period about the conclusion of reinsurance agreements with non-Ukrainian re-insurers.
v Basics of Administrative Law.
Administrative law of Ukraine is a homogeneous, isolated in a system of jurisprudence legal matter, which is characterized as:
1) the branch of law,
2) science,
3) academic discipline.
Administrative law of Ukraine as a branch of the law, a science and a discipline
In the judgment of Valentyn Galunko, the matter of the branch of the administrative law of Ukraine is the system of broad social relations between the public administration and the objects of public management, which arise in the sphere of authoritative-administrative activity, rendering of administrative services with the aim of public guaranteeing of rights and liberties of the person and the citizen and normal functioning of the civil society and the state, with the possibility of applying of measures of administrative compulsion and administrative responsibility to disturbers of the administrative-legal regulations. The foremost method of the administrative law is the administrative-legal method of legal regulation of social relations, the essence of which consists in the fact that the subject of the public management is empowered with authoritative competence, and the object is obliged to fulfill his legal requirements. Under the conditions of the democratic lawful state the mentioned method has lost authoritarian features, because it is balanced by strict compliance with legality by the public administration and by the possibility of the object of public management to appeal against his actions to several independent instances.
Administrative-legal regulation, administrative-legal relations
An administrative-legal regulation is an established, approved or ratified by the state, officially defined, legally compulsory and protected by the means of state compulsioorm of behavior of participants of administrative-legal relations with the aim of guaranteeing of public rights and liberties of the person and the citizen and normal functioning of the civil society and the state. Administrative-legal relations is the form of social interaction of the public administration and the objects of public management, which arises on the grounds of the administrative-legal regulations, with the aim of guaranteeing of rights and liberties of the person and the citizen and normal functioning of the civil society and the state, the participants of which have subjective rights and bear legal liabilities. The administrative-legal relations have the structure characterized by interrelationship of all its constituents. Here belong subjects of legal relations, objects, legal facts and essence of legal relations.
Principles of the administrative law
The principles of the administrative law are the basic initial, impartially conditioned grounds, on which the activity of subjects of the administrative law is formed, the rights and liberties of the person and the citizen as well as normal functioning of the civil society and the state are guaranteed.
Mechanism of the administrative-legal regulation
The mechanism of the administrative-legal regulation is the means of functioning of the common system of administrative-legal regulation with the aim of guaranteeing of rights, liberties and public legal interests of natural and legal persons and functioning of the civil society and the state. The administrative-legal regulation is the purposeful impact of regulations of the administrative law on social relations with the aim of guaranteeing with aid of administrative-legal measures of rights, liberties and public legal interests of natural and legal persons and normal functioning of the civil society and the state.
Sources of the administrative law
The source of the administrative law is the way of external registration of the administrative-legal regulations that verifies the state general obligation of authorities thereof (ways and forms of expression and strengthening of state liberty).
The subjects of the administrative law
The subjects of the administrative law are natural and legal persons, which have subjective rights and legal liabilities and which are empowered with specific legal properties connected as to the realization thereof. With regard to the structure of the public management, to the subjects of the administrative law belong both the subjects of public administration and the objects of public management.
Forms of the administrative law
The form of the administrative law is the external expression of similar by character and legal nature groups of administrative actions of the public administration, executed within the procedure of legality and competence for achievement of the administrative-legal aim – public guaranteeing of rights and liabilities of the person and the citizen and normal functioning of the civil society and the state.
Methods of the administrative law
Under the methods of the administrative law one understands the ways and modes of purposeful impact on the behavior of the participants of the administrative-legal relations. The main methods of the administrative law are persuasion and compulsion.
Public service and administrative-legal regulation
Public service is the activity on public positions, professional activity of courts, public prosecutors, military service, alternative (not military) service, diplomatic service, other state service, service in government authorities of the Autonomous Republic of Crimea and in local government authorities.
Execution in cases about administrative offenses
Execution in cases about administrative offenses is the special kind of activity of the district (municipal) court and the public administration as to execution of procedural actions on examining of the case about administrative offense and pronouncing of the resolution on it, which is directed to bringing to administrative responsibility of the persons, who have committed the administrative offenses.
Administrative-legal protection of rights, liberties and legal interests of natural and legal persons
The administrative-legal protection of rights, liberties and legal interests of natural and legal persons – is the legally applied and law-enforcement authoritative activity of the public administration as to solving of individual cases with the aim of prevention and renovation of the breach of rights, liberties and legal interests of natural and legal persons, reimbursement of losses to victims and bringing of guilty persons to administrative responsibility and/or creation of conditions for bringing of them to another kind of legal responsibility.
v Criminal Legislation.
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey these laws. Criminal law is to be distinguished from civil law.
History
The first civilizations generally did not distinguish between civil law and criminal law. The important elements are mens rea and actus reus. The first written codes of law were designed by the Sumerians. Around 2100-2050 BC Ur-Nammu, the Neo-Sumerian king of Ur, enacted the oldest written legal code whose text has been discovered: the Code of Ur-Nammu although an earlier code of Urukagina of Lagash ( 2380-2360 BC ) is also known to have existed. Another important early code was the Code Hammurabi, which formed the core of Babylonian law. These early legal codes did not separate penal and civil laws. Of the early criminal laws of Ancient Greece only fragments survive, e.g. those of Solon and Draco.
The Old Bailey in London (in 1808) was the venue for more than 100,000 criminal trials between 1674 and 1834, including all death penalty cases.
The similarly significant Commentaries of Gaius on the Twelve Tables also conflated the civil and criminal aspects, treating theft or furtum as a tort. Assault and violent robbery were analogized to trespass as to property. Breach of such laws created an obligation of law or vinculum juris discharged by payment of monetary compensation ordamages. The criminal law of imperial Rome is collected in Books 47-48 of the Digest.[3] After the revival of Roman lawin the 12th century, sixth-century Roman classifications and jurisprudence provided the foundations of the distinction between criminal and civil law in European law from then until the present time.[4]
The first signs of the modern distinction between crimes and civil matters emerged during the Norman Invasion of England.[5] The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scolasticism (see Alfonso de Castro), when the theological notion of God’s penalty (poena aeterna) that was inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal law.[6] The development of the state dispensing justice in a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law had formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.
Objectives of criminal law
Criminal law is distinctive for the uniquely serious potential consequences or sanctions for failure to abide by its rules. ([[Dennis J. Baker, The Right Not to be Criminalized: Demarcating Criminal Law’s Authority, (Ashgate 2011)]] Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishmentmay be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.
Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each.
§ Retribution – Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to “balance the scales.” People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be murdered himself. A related theory includes the idea of “righting the balance.”
§ Deterrence – Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.
§ Incapacitation – Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.
§ Rehabilitation – Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong.
§ Restitution – This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any hurt inflicted on the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restitution is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law, that is to say returning the victim to his original position.
Selected criminal laws
Many laws are enforced by threat of criminal punishment, and their particulars may vary widely from place to place. The entire universe of criminal law is too vast to intelligently catalog. Nevertheless, the following are some of the more known aspects of the criminal law.
Elements
Main article: Element (criminal law)
The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Scholars label this the requirement of an actus reus or guilty act. Some crimes – particularly modern regulatory offenses – require no more, and they are known as strict liability offenses (E.g. Under the Road traffic Act 1988 it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit). Nevertheless, because of the potentially severe consequences of criminal conviction, judges at common law also sought proof of an intent to do some bad thing, the mens rea or guilty mind. As to crimes of which both actus reus and mens rea are requirements, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times.
Actus reus
Main article: Actus reus
An English court room in 1886, withLord Chief Justice Coleridge presiding
Actus reus is Latin for “guilty act” and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal duty to act. For example, the act of A striking B might suffice, or a parent’s failure to give food to a young child also may provide the actus reus for a crime.
Where the actus reus is a failure to act, there must be a duty of care. A duty can arise through contract, a voluntary undertaking,a blood relation with whom one lives,[10] and occasionally through one’s official position. Duty also can arise from one’s own creation of a dangerous situation. On the other hand, it was held in the U.K. that switching off the life support of someone in a persistent vegetative state is an omission to act and not criminal. Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the patient’s best interests, no crime takes place. In this case it was held that since a PVS patient could not give or withhold consent to medical treatment, it was for the doctors to decide whether treatment was in the patient’s best interest. It was reasonable for them to conclude that treatment was not in the patient’s best interest, and should therefore be stopped, when there was no prospect of improvement. It was never lawful to take active steps to cause or accelerate death, although in certain circumstances it was lawful to withhold life sustaining treatment, including feeding, without which the patient would die.
An actus reus may be nullified by an absence of causation. For example, a crime involves harm to a person, the person’s action must be the but for cause andproximate cause of the harm.[14] If more than one cause exists (e.g. harm comes at the hands of more than one culprit) the act must have “more than a slight or trifling link” to the harm.
Causation is not broken simply because a victim is particularly vulnerable. This is known as the thin skull rule However, it may be broken by an intervening act (novus actus interveniens) of a third party, the victim’s own conduct,[17] or another unpredictable event. A mistake in medical treatment typically will not sever the chain, unless the mistakes are in themselves “so potent in causing death.”[18]
[edit]Mens rea
Main article: Mens rea
Mens rea is another Latin phrase, meaning “guilty mind”. This is the mental element of the crime. A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person’s motive[19] (although motive does not exist in scots law).[citation needed]
A lower threshold of mens rea is satisfied when a defendant recognises an act is dangerous but decides to commit it anyway. This is recklessness. It is the mental state of mind of the person at the time the actus reus was committed. For instance, if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbour’s house, he could be liable for poisoning.[20] Courts often consider whether the actor did recognize the danger, or alternatively ought to have recognised a risk.[21] Of course, a requirement only that one ought to have recognized a danger (though he did not) is tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law but is obviously still an imporant part in the criminal system.
Wrongfulness of intent also may vary the seriousness of an offense and possibly reduce the punishment but this is not always the case. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter.[22] On the other hand, it matters not who is actually harmed through a defendant’s actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck.[Note: The notion of transferred intent does not exist within Scots’ Law. In Scotland, one would not be charged with assault due to transferred intent, but instead assault due to recklessness.] [23]
Strict liability
Main article: Strict liability
Strict liability can be described as criminal or civil liability notwithstanding the lack mens rea or intent by the defendant. Not all crimes require specific intent, and the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offenses of absolute liability, other than the prohibited act, it may not be necessary to show the act was intentional. Generally, crimes must include an intentional act, and “intent” is an element that must be proved in order to find a crime occurred. The idea of a “strict liability crime” is an oxymoron. The few exceptions are not truly crimes at all – but are administrative regulations and civil penalties created by statute, such as crimes against the traffic or highway code.
Fatal offenses
Main articles: Murder and Culpable homicide
A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In many jurisdictions, the crime of murder is divided into various gradations of severity, e.g., murder in the first degree, based on intent. malice is a required element of murder. Manslaughter (Culpable Homicide in Scotland) is a lesser variety of killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness.
Settled insanity is a possible defense.
Personal offenses
Main articles: Assault, Battery (crime), Rape, and Sexual abuse
Many criminal codes protect the physical integrity of the body. The crime of battery is traditionally understood as an unlawful touching, although this does not include everyday knocks and jolts to which people silently consent as the result of presence in a crowd. Creating a fear of imminent battery is an assault, and also may give rise to criminal liability. Non-consensual intercourse, or rape, is a particularly egregious form of battery.
Property offenses
Main articles: Criminal damage, Theft, Robbery, Burglary, and Fraud
Property often is protected by the criminal law. Trespassing is unlawful entry onto the real property of another. Many criminal codes provide penalties for conversion, embezzlement, theft, all of which involve deprivations of the value of the property. Robbery is a theft by force. Fraud in the UK is a breach of the Fraud Act 2006 by false representation, by failure to disclose information or by abuse of position.
Participatory offenses
Main articles: Accomplice, Aid and abet, and Inchoate offenses
Some criminal codes criminalize association with a criminal venture or involvement in criminality that does not actually come to fruition. Some examples are aiding, abetting, conspiracy, and attempt. However, in Scotland, the English concept of Aiding and Abetting is known as Art and Part Liability. See Glanville Williams, Textbook of Criminal Law, (London: Stevens & Sons, 1983); Glanville Williams, Criminal Law the General Part (London: Stevens & Sons, 1961).
Mala in se v. mala prohibita
While crimes are typically broken into degrees or classes to punish appropriately, all offenses can be divided into ‘mala in se’ and ‘mala prohibita’ laws. Both are Latin legal terms, mala in se meaning crimes that are thought to be inherently evil or morally wrong, and thus will be widely regarded as crimes regardless of jurisdiction. Mala in se offenses are felonies, property crimes, immoral acts and corrupt acts by public officials. Mala prohibita, on the other hand, refers to offenses that do not have wrongfulness associated with them. Parking in a restricted area, driving the wrong way down a one-way street, jaywalking or unlicensed fishing are examples of acts that are prohibited by statute, but without which are not considered wrong. Mala prohibita statutes are usually imposed strictly, as there does not need to be mens rea component for punishment under those offenses, just the act itself. For this reason, it can be argued that offenses that are mala prohibita are not really crimes at all.[24]
Defenses
Main article: Criminal defenses
Criminal law jurisdictions
Public international law deals extensively and increasingly with criminal conduct that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. The Nuremberg trials marked the beginning of criminal fault for individuals, where individuals acting on behalf of a government can be tried for violations of international law without the benefit of sovereign immunity. In 1998 an International criminal courtwas established in the Rome Statute.
The Basic law of
Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge made law is not consolidated. In some countries, religion informs the law. Law provides a rich source of scholarly inquiry, into legal history, philosophy, economic analysis or sociology. Law also raises important and complex issues concerning equality, fairness and justice. In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government’s bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress.
State is a form of society organization, a bearer of public power, integrity of interrelated establishments and organizations that govern the society on behalf of the people.
The place and role of the state are determined by the basic principles of its functioning:
1. Supremacy of public power.
2. Preservation of state integral structure that is based on the reach of compromise between those who rule and those who are ruled regardless of the government stuff and ruling party.
3. Reaching of the state unity through certain relation with social forces of society – classes, groups, nations, political parties, etc. – by the means of the right and possibility to perform inner and foreign policy on behalf of the people through the natural interaction with the civic society in general. The state is characterized by:
1. Power organization according to certain territorial principle: population division according to the inhabited territory but not to family features.
2. Integral character – a state embodies with its influence all the people that inhabit its territory including the citizens of the other countries.
3. Public power that is performed only by people that are engaged in society administration and protection of established rules.
4. Right and possibility to conduct inner and foreign policy on behalf of the whole society.
5. Monopoly on coercion influence on the population and special system of institutions, establishments and means of coercion (army, police, courts, prisons) that fulfil functions of the state power.
6. Sovereign legislative branch of power – right to issue laws that are obligatory to the entire population.
7. Monopoly on tax collection for national budget formation, support of state apparatus.
Basic theories of state origin can be grouped into the following groups:
1. Theological theory explained the state origin by the will of God. The theory supposes the dependence of the state upon the religious organizations and leaders.
2. Non-historic theory was proposed by Aristotle. He declared that nature of a man who is a political creature determined its life in the society and the state is a natural result of human communities’ development.
3. Patriarchal theory says that a state is the result of the family development. The absolute state power is the continuation of the father’s power in the family.
4. Treaty theory appeared in the Ancient Greece. According to this theory the state appeared in the result of a treaty between the sovereign dwellers of certain territory with the ruler according to the laws of human intelligence with the aim to achieve order and stability.
5. Psychological theory relates the state origin to special qualities of the human psychology that needs to depend on some great personality.
6. Violence theory says that a state appeared as a consequence of conquest of one people by the other.
7. Marxist (class) theory links state origin with class division of society. The dictatorship of a ruling class is the essence of a state. It was founded by K. Marx and F. Engels. They claimed that appearance of a state is the result of natural- historical objective process. State was formed in the last phase of primeval order and developed during a long historic period of time.
To the basic state features belong:
1. The system of sovereign political power (legislative, executive, judicial). Sovereignty means that a state enjoys the supreme and unlimited power on the inner subjects inside the state and the other states are to recognize it.
2. Territory. A state is associated with a certain territory where its laws have absolute power. The territory includes the land, entrails, air space and sea- expanse.
3. Monopoly on legal applying of the power. A state creates special apparatus of coercion that is used in situations established by the law. The range of state coercion spreads from limitation of freedom to physical extermination of the person.
4. State language. This is a language of the majority of population.
5. State apparatus as a rule consists of the parliament, local governing bodies, president, government and its regional bodies, judicial bodies, prosecuting magistracy.
6. National law system. Every state functions in the certain law system. State law system establishes norms that regulate social life, and which subordinate all the subjects and objects of politics.
7. Population. A state influences all the people in the country. No person can exists outside the state and disobey it, because state appliance is a social necessity and is regulated у the law.
State functions are the main trends of state activity that consist its social essence and mission. There are different points of view on the problem of state functions classification.
All the state functions can be divided into temporal and permanent, temporal functions are performed on a certain stage existing (e.g. during a war), permanent functions are realized during all the time of state existing. The most acceptable is the one that supposes division into inner and foreign functions.
The inner state functions include:
1. Economical – protection of economical basis of society, existing way of production, different property forms; regulation of economic activity, market relationships; state government in economic sphere.
2. Social – regulation of relationships between social and ethnical communities and prevention of social conflicts and contradictions and their settling in case of occurrence; regulation of interests and needs of individuals and social groups; efficient demographic policy.
3. Support of legality and order – control and supervision over law norms following and application of coercion in the case of need; protection of rights and freedoms of the citizens, creation of conditions for their safety, social order, etc
4. Legislative – creation and adoption of new laws and other juridical norms.
5. Cultural-educational – regulation and development of educational system, system of culture, science, physical culture and sport, morality, humanism, common to mankind and national values.
6. Ecological – environment protection, rational use of natural recourses, formation of ecological culture.
Foreign state functions are:
1. Defense and national security – protection of the country from the outer aggression and protection of its integrity.
2. Diplomatic – protection and realization of national interests of the state and its citizens in international life; realization of independent international policy.
3. Cooperation – development of economic, political, cultural relationships between countries; deepening of integration processes on public, regional and political basis.
State organization is a division of a state into certain components and division of the power between them.
Forms of state organization:
1. Unitarian states.
2. Federations.
3. Confederations.
State government is a way of organization and performing of the state power.
Forms of state government: Monarchy. Republic.
Democratic state is such a type of state where the people is the source of power, where state democratic social-political institutions and democratic type of political culture provide perfect combination of people’s participation in state affairs solving and wide civil rights and freedoms.
Social state is a state that strives to provide every citizen with worthy conditions for existence, social security, participation in government of production, equal chances, possibility of self-realization of personality.
Legal state is such a type of state that has law supremacy, power distribution, legal protection of a person, juridical equality of a citizen and state as its basic principles.
A lawful state is a sovereign politically-territorial organization of public power that is based on principles of respect to the person and inviolability of his rights and freedoms, supremacy of the law and following the law. A lawful state is a system of the authorities and institutions that guarantee and protect normal functioning of civic society.
Constitutional jurisdiction. Constitution is the main law that makes the basis for adopting other laws.
1. Supremacy of the law.
2. Really existing rule of law.
3. Parliamentarism.
4. Developed electing system.
5. Guarantees of following the law and legislation.
6. Priority of human rights.
7. Developed law culture.
8. Power division.
10.Orientation on a person as on the supreme value.
The classical Theory of State and Law – TSL focused (and still focuses) on “interior” and “exterior” functions of governance. The interior functions include the state budget, focused on enhancing the economic development of the country; the reduction of unemployment; the social protection of citizens; the improvement of public health and public infrastructures (transportation, water, sewage, electricity, gas, etc.); and law enforcement, especially the “struggle against infringement of laws” (but without discussion of whether the government is itself governed by law). The exterior functions include “maintaining mutually beneficial relations with foreign countries” and “defending the country against aggression.
Conflict of laws (or private international law) is a set of procedural rules which determine which legal system, and the law of which jurisdiction, applies to a given dispute. The rules typically apply when a legal dispute has a “foreign” element such as a contract agreed by parties located in different countries, although the “foreign” element also exists in multi-jurisdictional countries such as the
The term conflict of laws itself originates from situations where the ultimate outcome of a legal dispute depended upon which law applied, and the common law courts manner of resolving the conflict between those laws. In civil law lawyers and legal scholars refer to conflict of laws as private international law. Private international law has no real connection with public international law, and is instead a feature of municipal law which varies from country to country.
The three branches of conflict of laws are
Jurisdiction – whether the forum court has the power to resolve the dispute at hand
Choice of law – the law which is being applied to resolve the dispute
Foreign judgements – the ability to recognise and enforce a judgement from an external forum within the jurisdiction of the adjudicating forum.
Terminology
Its three different names – conflict of laws, private international law, and international private law – are generally interchangeable, although none of them is wholly accurate or properly descriptive. The term conflict of laws is primarily used in jurisdictions of the Common Law legal tradition, such as in the
Within the federal systems where legal conflicts among federal states require resolution, as in the United States and Australia, the term conflict of laws is preferred simply because such cases do not involve an international issue. Hence, conflict of laws is a general term to refer to disparities among laws, regardless of whether the relevant legal systems are international or inter-state. The term, however, can be misleading when it refers to resolution of conflicts between competing systems rather than “conflict” itself. The term private international law was coined by American lawyer and Judge Joseph Story, but was abandoned subsequently by common law scholars and embraced by civil law lawyers.
History
The first instances of conflict of laws in the Western legal tradition can be traced to Greek law. Ancient Greeks dealt straightforwardly with multistate problems, and did not create choice-of-law rules. Leading solutions varied between the creation of courts for international cases, or application of local law, on the grounds that it was equally available to citizens of all states.
More significant developments can be traced to Roman law. Roman civil law (jus civile) being inapplicable to non-citizens, special tribunals had jurisdiction to deal with multistate cases. The officers of these specialized tribunals were known as the praetor peregrini. The Praetor peregrini did not select a jurisdiction whose rules of law should apply. Instead, they “applied” the “jus gentium.” The jus gentium was a flexible and loosely-defined body of law based on international norms. Thus the praetor peregrini essentially created new substantive law for each case. Today, this is called a “substantive” solution to the choice-of-law issue.
The modern conflict of laws is generally considered to have begun in Northern Italy during the late Middle Ages and in particular at trading cities such as Genoa, Pisa and Venice. The need to adjudicate issues involving commercial transactions between traders belonging to different cities led to the development of the theory of statuta, whereby certain city laws would be considered asstatuta personalia “following” the person whereby it may act, and other city laws would be considered as statuta realia, resulting in application of the law of the city where, e.g., the res would be located (cf. lex rei sitae).
Maritime law was also a great driver of international legal rules; providing for the enforcement of contracts, the protection of shipwrecked sailors and property, and the maintaining of harbours.
The modern field of conflicts emerged in the
However, in the
The Stages in a Conflict Case
1. The court must first decide whether it has jurisdiction and, if so, whether it is the appropriate venue given the problem of forum shopping.
2. The next step is the characterization of the cause of action into its component legal categories which may sometimes involve an incidental question (also note the distinction between proceduraland substantive laws).
3. Each legal category has one or more choice of law rules to determine which of the competing laws should be applied to each issue. A key element in this may be the rules on renvoi.
4. Once the applicable law is decided, that law must be proved before the forum court and applied to reach a judgment.
5. The successful party must then enforce the judgment which will first involve the task of securing cross-border recognition of the judgment.
In those states with an underdeveloped set of Conflict rules, decisions on jurisdiction tend to be made on an ad hoc basis, with such choice of law rules as have been developed embedded into each subject area of private law and tending to favour the application of the lex fori or local law. In states with a more mature system, the set of Conflict rules stands apart from the local private civil law and adopts a more international point of view both in its terminology and concepts. For example, in the European Union, all major jurisdictional matters are regulated under the Brussels Regime, e.g. the rule of lis alibi pendens from Brussels 1 Regulation applies in the Member States and its interpretation is controlled by the European Court of Justice rather than by local courts. That and other elements of the Conflict rules are produced supranationally and implemented by treaty or convention. Because these rules are directly connected with aspects of sovereignty and the extraterritorial application of laws in the courts of the signatory states, they take on a flavour of public rather than private law because each state is compromising the usual expectations of their own citizens that they will have access to their local courts, and that local laws will apply in those local courts. Such aspects of public policy have direct constitutional significance whether applied in the European context or in federated nations such as the United States, Canada, and Australia where the courts have to contend not only with jurisdiction and law conflicts between the constituent states or territories, but also as between state and federal courts, and as between constituent states and relevant laws from other states outside the federation.
Choice of Law Rules
Courts faced with a choice of law issue have a two-stage process:
1. the court will apply the law of the forum (lex fori) to all procedural matters (including, self-evidently, the choice of law rules); and
2. it counts the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection, e.g. the law of nationality (lex patriae) ordomicile (lex domicilii) will define legal status and capacity, the law of the state in which land is situated (lex situs) will be applied to determine all questions of title, the law of the place where a transaction physically takes place or of the occurrence that gave rise to the litigation (lex loci actus) will often be the controlling law selected when the matter is substantive, but the proper lawhas become a more common choice.
Conflict of Law rules in Matrimonial Cases
In divorce cases, when a court is attempting to distribute marital property, if the divorcing couple is local and the property is local, then the court applies its domestic law lex fori. This becomes much more complicated when local laws allow polygamy. For example, Saskatchewan Canada stands alone as a province in
Different jurisdictions follow different sets of rules. Before embarking on a conflict of law analysis, the court must determine whether a property agreement governs the relationship between the parties. The property agreement must satisfy all formalities required in the country where enforcement is sought.
Whereas commercial agreements or prenuptial agreements generally do not require legal formalities to be observed, when married couples enter a property agreement, stringent requirements are imposed, including notarization, witnesses, special acknowledgment forms. In some countries, these must be filed (or docketed) with a domestic court, and the terms must be “so ordered” by a judge. This is done in order to ensure that no undue influence or oppression has been exerted by one spouse against the other. Upon presenting a property agreement between spouses to a court of divorce, that court will generally assure itself of the following factors: signatures, legal formalities, intent, later intent, free will, lack of oppression, reasonableness and fairness, consideration, performance, reliance, later repudiation in writing or by conduct, and whichever other concepts of contractual bargaining apply in the context.
In the absence of a valid and enforceable agreement, here’s how the conflict of law rules work:
§ Movable v. Real Estate – In general, applicable matrimonial law depends on the nature of the property. Lex situs is applied to immovable property (i.e., real estate), and the law of matrimonial domicile applies to movable property, provided there has beeo subsequent change in the spouses’ domicile.
§ Full Mutability Doctrine – property relations between spouses are governed by their latest domicile, whether acquired before or after the marriage.[4] This is also the norm in
§ Immutability Doctrine – the original personal law of the parties at the time of marriage continues to govern all property including subsequently acquired property, regardless of a later change in domicile or nationality. This is the Continental approach in
§ Partial Mutability or Mutability of New Acquisition – this is the American approach to conflicts of law in matrimonial property division cases. All movable property acquired during the marriage is subject to the parties’ domicile law at the time of acquisition, and not that of the original or intermediate domicile. What was acquired before the marriage is governed by the law of the parties’ domicile at the time of marriage. Thus, if rights vested in a property when and where it was purchased, it would not be adversely affected by a later change of domicile.
§ Lex Fori – In many cases, courts simply avoid this complicated and expensive analysis by applying their local law to the parties’ entire property, even if there is a foreign element. This is based on the assumption that laws around the world are basically similar in their treatment of marriage as a co-partnership. Since the partnership can be placed in the forum, the forum’s law applies to all its aspects.
Note that Lex Fori also applies to all procedural relief (as opposed to substantive relief). Thus, issues such as the ability to grant pre-trial relief, procedure and form, as well as statutes of limitations are classified as “procedure” and are always subject to domestic law where the divorce case is pending.
The Status of Foreign Law
Generally, when the court is to apply a foreign law, it must be proved by foreign law experts. It cannot merely be pleaded, as the court has no expertise in the laws of foreign countries nor in how they might be applied in a foreign court. Such foreign law may be considered no more than evidence, rather than law because of the issue of sovereignty. If the local court is actually giving extraterritorial effect to a foreign law, it is less than sovereign and so acting in a way that is potentially unconstitutional. The theoretical responses to this issue are:
§ (a) that each court has an inherent jurisdiction to apply the laws of another country where it is necessary to achieving a just outcome; or
§ (b) that the local court creates a right in its own laws to match that available under the foreign law. This explanation is sustainable because, even in states which apply a system of binding legal precedents, any precedent emerging from a conflicts case can only apply to future conflicts cases. There will be no ratio decidendi that binds future litigants in entirely local cases.
§ (c) that the national court, when applying a foreign law, does not give an extraterritorial effect but recognizes, through its own “conflict of laws rule”, that the situation at hand falls under the scope of application of the foreign rule. In order to understand this argument one must first define the notion of extraterritorial application of a rule. This notion is susceptible to two distinct meanings:
On the one hand, this notion is used to describe the situation where a local court applies a rule other than the Lex fori (local law).
On the other hand, it could mean that the rule is being applied to a factual situation that occurred beyond the territory of its state of origin. As an example of this situation, one can think of an American court applying British tort statutes and case law to a car accident that took place in London where both the driver and the victim are British citizens but the lawsuit was brought in before the American courts because the driver’s insurer is American. One can then argue that since the factual situation is within the British territory, where an American judge applies the English Law, he does not give an extraterritorial application to the foreign rule. In fact, one can also argue that the American judge, had he applied American Law, would be doing so in an extraterritorial fashion.
Once the lex causae has been selected, it will be respected except when it appears to contravene an overriding mandatory rule of the lex fori. Each judge is the guardian of his own principles of ordre public (public order) and the parties cannot, by their own act, oust the fundamental principles of the local municipal law which generally underpin areas such as labour law, insurance, competition regulation, agency rules, embargoes, import-export regulations, and securities exchange regulations. Furthermore, the lex fori will prevail in cases where an application of the lex causae would otherwise result in a fundamentally immoral outcome, or give extraterritorial effect to confiscatory or other territorially limited laws.
In some countries, there is occasional evidence of parochialism when courts have determined that if the foreign law cannot be proved to a “satisfactory standard”, then local law may be applied. In the United Kingdom, in the absence of evidence being led, the foreign law is presumed to be the same as the lex fori. Similarly, judges might assume in default of express evidence to the contrary that the place where the cause of action arose would provide certain basic protections, e.g. that the foreign court would provide a remedy to someone who was injured due to the negligence of another. Finally, some American courts have held that local law will be applied if the injury occurred in an “uncivilized place that has no law or legal system.”[6]
If the case has been submitted to arbitration rather than a national court, say because of a forum selection clause, an arbitrator may decide not to apply local mandatory policies in the face of a choice of law by the parties if this would defeat their commercial objectives. However, the arbitral award may be challenged in the country where it was made or where enforcement is sought by one of the parties on the ground that the relevant ordre public should have been applied. If the lex loci arbitri has been ignored, but there was no real and substantial connection between the place of arbitration and the agreement made by the parties, a court in which enforcement is sought may well accept the tribunal’s decision. But if the appeal is to the courts in the state where the arbitration was held, the judge cannot ignore the mandatory provisions of the lex fori.
v Constitutional Legislation of
The Constitution of Ukraine is divided into 15 chapters:
2. Human and Citizens’ Rights, Freedoms and Duties
6. Cabinet of Ministers of Ukraine. Other Bodies of Executive Power
7. Prokuratura
8. Justice
9. Territorial Structure of Ukraine
10. Autonomous Republic of Crimea
12. Constitutional Court of Ukraine
13. Introducing Amendments to the Constitution of Ukraine
14. Final Provisions
The form of the Ukrainian state is the mixed type of republic. It contains the Parliament and the President forms of ruling.
· The National Flag (blue-on-top and yellow at the bottom)
· The National Emblem (The Trident)
· The National Anthem (“
The
The legal system of
The primary law making body is the Ukrainian Parliament (Verkhovna Rada), also referred to as the legislature (Ukrainian: zakonodavtsi’). The power to make laws can be delegated to lower governments or specific organs of the State, but only for a prescribed purpose. In recent years, it has become common for the legislatures to create “framework laws” and delegate the creation of detailed rules to ministers or lower governments (e.g. a province or municipality).
Law is formed when a state has been formed and they are connected. The degree of this connection is interpreted in various theories in the variety of ways. There are the following theories of law:
· Law natural theory. It was developed by Lokk, Russo. According to the theory every person had natural law on life, free development, work etc.
· Law historical theory. It was created by Gugo G., Puhta F. According to the theory state had only such laws which were formed during historical development.
· Law realistic theory. It was developed by Yeryng R. Due to the theory the law was formed and developed under the influence of outer factors. Those factors had to reflect interests of people. That’s why the main task of the state power was to protect the interests of people.
· Law socialist theory. It was created in XX cent. According to the theory the law interrelationship had to be provided among the members of the society.
· Law normative theory. It was developed by Shtamler. Due to the theory the law had to regulate only outer social life.
Therefore, taking into consideration those law theories we can make a conclusion that LAW is the system of compulsory rules of behavior which have been formed by the state to express common and individual interests of the country population. Law is the principal regulator of social relationships.
Types of the law:
· Subjective (actions of the person)
· Objective (laws which are formed by the state)
Statuses of the law:
Status is referred to the place and role of the person in the law system of the state.
· Common status (laws of all society members)
· Special status (laws of the certain group of people)
· Individual status (laws of the certain person)
There are special written documents (the Law-Normative Deeds) which are formed by the state body and can be cancelled only by it.
Ukrainian law is commonly divided into the following areas:
v Public law. Public law is a theory of law governing the relationship between individuals (citizens, companies) and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law. This theory is at odds with the concept of Constitutional law, which requires all laws to be specifically enabled, and thereby sub-divisions, of a Constitution.
Generally speaking, public law is the area of law in a society that affects the relationships between individuals or groups without the intervention of the state or government. In many cases the public/private law distinction is confounded by laws that regulate private relations while having been passed by legislative enactment. In some cases these public statutes are known as laws of public order, as private individuals do not have the right to break them and any attempt to circumvent such laws is void as against public policy.
v Private law. Private law (Civil law) is that part of a legal system that involves relationships between individuals. This includes the law of contracts or torts and the law of obligations. It is distinguished from public law, which deals with law involving the state, including regulatory statutes, penal law and other law of public order.
In general terms, public law involves interrelations between the state and the general population, whereas private law involves interactions between private citizens. The concept of private law in common a law country is a little broader, in that it also encompasses private relationships between governments and private individuals or other entities. That is, relationships between governments and individuals based on the law of contract or torts are governed by private law, and are not considered to be within the scope of public law.
v International law. International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. In other words it is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe in their relations with each other and which includes also :
· The rules of law relating to the function of international institutions or organizations, their relations with each other and their relations with States and individuals; and
· Certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals and non-state entities are the concern of the international community.
However, the term “international law” can refer to three distinct legal disciplines:
· Public international law, which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.
· Private international law, or conflict of laws, which addresses the questions of law in which legal jurisdiction may a case be heard; and the law concerning which jurisdiction(s) apply to the issues in the case.
· Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.
v Civil law
Civil law regulates the everyday life of persons and other legal entities, such as corporations. The main code of Ukrainian civil law is the Civil Code of Ukraine. It comprises provisions governing ownership, intellectual property rights, contracts, torts, obligations, inheritance law, and the definition of legal entities. The Code introduces new types of business contracts into the legal practice, including factoring, franchising, rent service, and inherited contracts. Civil litigation is governed by the Civil Procedural Code of Ukraine.
v Criminal law
Criminal law deals with the prosecution and punishment of criminal offenses. The Criminal Code of Ukraine contains the written criminal laws of
v Constitutional law
Constitutional law considers the constitution and the structure of
v Administrative law
Administrative law is the area of law that regulates the operation of the various levels of government and the way in which persons and legal entities can appeal decisions of the government. The main code of Ukrainian administrative law is the Administrative Code of Ukraine.
v International law
International law involves the application of international laws (mostly laid down in treaties) in
v Commercial law
The Commercial Code of Ukraine describes the details of compliance with the Constitution of Ukraine clauses for commercial activity. The Code regulates the fundamentals of commercial activity, including business entities, property basis, responsibility for violations, peculiarities of legal regulation, and foreign commerce.
Commercial law – body of law that governs business and commercial transactions. It is often considered to be a branch of civil law and deals with issues of both private law and public law. It is also called business law.
Branches of commercial law
§ Competition law (antitrust)
v Basics of Civil Legislation.
In general, legal systems around the world can be split between civil law (legal system) jurisdictions on the one hand and on the other systems using common law and equity. This is largely the result of countries having a shared history. The term civil law, referring to a legal system, should not be confused with civil law as distinguished from criminal law, or as distinguished from public law. A third type legal system still accepted by some countries, even whole countries, is religious law, based on Biblical transcripts.
Civil law, as a type of legal system, is the form of law used by most countries around the world today. Civil law systems mainly derive from the
A march in Washington DC, during the civil rights movement in 1963Perhaps the most crucial institution in the law is simply the civil partnerships and associations of ordinary people holding no official positions. Freedom of Speech, and Freedom of Association are our human rights, our civil liberties and most developed and developing countries uphold them. They form the basis of an active, thoughtful and deliberative democracy. The more people are involved with and concerned by how political power is exercised over their lives, the more acceptable and legitimate the law becomes to the people. Developed political parties or debating clubs, trade unions, impartial media, charities and perhaps even online encyclopedias are signs of a healthy civil society.
King John of
The term “civil society” traces back to Adam Ferguson, who saw the development of a “commercial state” as a way to change the corrupt feudal order and strengthen the liberty of the individual. Later on, Georg Wilhelm Friedrich Hegel, a German philosopher, made the distinction between society and the ‘state’ in his Elements of the Philosophy of Right. Hegel thought civil society (Zivilgesellschaft) was a stage on the dialectical relationship between Hegel’s perceived opposites, the macro-community of the state and the micro-community of the family.
The main kinds of religious law are Halakha in Judaism, Sharia in Islam, and Canon law in some Christian groups. In some cases these are intended purely as individual moral guidance, whereas in other cases they are intended and may be used as the basis for a country’s legal system. The Halakha is followed by orthodox and conservative Jews in both ecclesiastical and civil relations. No country is fully governed by Halakha, but two Jewish people may decide, because of personal belief, to have a dispute heard by a Jewish court, and be bound by its rulings. Sharia Law governs a number of Islamic countries, including
Civil procedure includes the legal rules governing the procedure of the court consideration and solving the disputes and the enforcement of writs. This legal field is governed by the Civil Procedural Code of Ukraine.
The Law of Ukraine On Protection of Economic Competition of 2001 sets forth the unified rules of competition and defines the measures for the restriction of monopolism in the field of business.
Civil law comprises provisions governing the ownership and non-property, and intellectual property rights, contracts, torts, etc.
The main act in this field of legislation is the newly adopted Civil Code. It contains six books and practically establishes a new for
The other subjects of the new Civil Code are as follows: obligations, contract law, inheritance law, legal entities concept and other. The Code introduces new types of business contracts into the legal practice: factoring, franchising, and rent service or inherited contracts etc.
The Law of Ukraine on Protection from Unfair Competition adopted in 1996 establishes the fundamentals for the protection of business participants and consumers against unfair competition.
v Residential Legislation.
The Residential Tenancies Act 1997 (RTA) establishes the tribunal’s jurisdiction and contains provisions relating to residential tenancies, rooming houses and caravan parks.
Among other things, the RTA sets out the general duties of landlords, tenants, owners and residents; provides for rights of entry by landlords or owners; and sets out the means by which a tenancy agreement or agreement in relation to a residency right may be ended.
The mechanisms for ending an agreement or for seeking compensation or compliance orders (where a party to an agreement is in breach of his or her obligations) are also set out in the RTA. The RTA provides in part 7 division 2 for an alternative procedure for obtaining possession of rented premises. Applications are made to the Principal Registrar and are supported by affidavit, where the tenant has not objected to this procedure.
The RTA deals with goods and personal documents left behind by tenants and residents. Finally, the RTA establishes the regime for the lodgement of bonds with the Residential Tenancies Bond Authority.
v Marriage and Family related Laws.
Family law is an area of the law that deals with family-related issues and domestic relations including:
· the nature of marriage, civil unions, and domestic partnerships;
· issues arising throughout marriage, including spousal abuse, legitimacy, adoption, surrogacy, child abuse, and child abduction
· the termination of the relationship and ancillary matters including divorce, annulment, property settlements, alimony, and parental responsibility orders (in the
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union, often formalized via a wedding ceremony, may also be called matrimony.
People marry for many reasons, including one or more of the following: legal, social, emotional, economical, spiritual, and religious. These might include arranged marriages, family obligations, the legal establishment of a nuclear family unit, the legal protection of children and public declaration of commitment. The act of marriage usually creates normative or legal obligations between the individuals involved. In some societies these obligations also extend to certain family members of the married persons. In cultures that allow the dissolution of a marriage this is known as divorce.
Marriage is usually recognized by the state, a religious authority, or both. It is often viewed as a contract. Civil marriage is the legal concept of marriage as a governmental institution irrespective of religious affiliation, in accordance with marriage laws of the jurisdiction. If recognized by the state, by the religion(s) to which the parties belong or by society in general, the act of marriage changes the personal and social status of the individuals who enter into it.)
(A civil union is a legally recognized union similar to marriage. Civil unions can often come under other terms such as registered partnership and civil partnership. Beginning with Denmark in 1989, civil unions under one name or another have been established by law in many developed countries in order to provide same-sex couples rights, benefits, and responsibilities similar (in some countries, identical) to opposite-sex civil marriage. In some jurisdictions, such as
Many countries with civil unions recognize foreign unions if those are essentially equivalent to their own; for example, the
Supporters of civil unions contend that civil unions grant same-sex couples equal rights to married couples. Some commentators, such as Ian Ayres, are critical of civil unions because they say they represent a separate status unequal to marriage. According to an American history scholar Nancy Cott “there really is no comparison, because there is nothing that is like marriage except marriage.” Others, such as Robert Knight, are critical because they say civil unions endow the same rights and privileges of heterosexual marriages — alleging that they allow same-sex marriage by using a different name)
In the common law tradition, the law of domestic relations is a broad category that encompasses:
divorce;
property settlements;
alimony, spousal support, or other maintenance;
the establishment of paternity;
the establishment or termination of parental rights;
child support;
child custody;
visitation;
adoption; and
Emancipation of minors.
In some jurisdictions, guardianships, truancy, and matters related to juvenile delinquency are considered part of the law of domestic relations.
Many sorts of dispute fall into this broad category; many people who will not otherwise have any dealings during their lives with the judicial system have domestic relations disputes. Because of the volume of legal business generated by the law of domestic relations, a number of jurisdictions have established specialized courts of limited jurisdiction, sometimes called family courts, which hear domestic cases exclusively.
Divorce (or the dissolution of marriage) is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. In most countries divorce requires the sanction of a court or other authority in a legal process. The legal process for divorce may also involve issues of spousal support, child custody, child support, distribution of property and division of debt.
In most Western countries, a divorce does not declare a marriage null and void, as in an annulment, but it does cancel the married status of the parties. Where monogamy is law, this allows each former partner to marry another. Where polygyny is legal, divorce allows the woman to marry another. Divorce laws vary considerably around the world. Divorce is not permitted in some countries, such as in
Annulment is a legal procedure for declaring a marriage null and void. Unlike divorce, it is usually retroactive, meaning that an annulled marriage is considered to be invalid from the beginning almost as if it had never taken place (though some jurisdictions provide that the marriage is only void from the date of the annulment[1]). In strict legal terminology, annulment refers only to making a voidable marriage null; if the marriage is void ab initio, then it is automatically null, although a legal declaration of nullity is required to establish this. The process of obtaining such a declaration is similar to the annulment process. Generally speaking, annulment, despite its retrospective nature, still results in any children born being considered legitimate in the
Domestic violence, also known as domestic abuse, spousal abuse or intimate partner violence (IPV), can be broadly defined as a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, friends or cohabitation. Domestic violence has many forms including physical aggression (hitting, kicking, biting, shoving, restraining, slapping, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and economic deprivation. Alcohol consumption and mental illness can be co-morbid with abuse, and present additional challenges when present alongside patterns of abuse.
Awareness, perception, definition and documentation of domestic violence differ widely from country to country, and from era to era. Estimates are that only about a third of cases of domestic violence are actually reported in the
A marriage, by definition, bestows rights and obligations on the married parties, and sometimes on relatives as well, being the sole mechanism for the creation of affinal ties (in-laws). These may include:
§ Giving a husband/wife or his/her family control over a spouse’s labor, and property.
§ Giving a husband/wife responsibility for a spouse’s debts.
§ Giving a husband/wife visitation rights when his/her spouse is incarcerated or hospitalized.
§ Giving a husband/wife access rights to his/her spouse’s private parts.
§ Giving a husband/wife control over his/her spouse’s affairs when the spouse is incapacitated.
§ Establishing the second legal guardian of a parent’s child.
§ Establishing a joint fund of property for the benefit of children.
§ Establishing a relationship between the families of the spouses.
These rights and obligations vary considerably between societies, and between groups within society.
v Labour & Employment Legislation.
Labour law (American English: labor) or employment law is the body of laws, administrative rulings, and precedents which addresses the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In
The labour movement has been instrumental in the enacting of laws protecting labour rights in the 19th and 20th centuries. Labour rights have been integral to the social and economic development since the industrial revolution.
The function and origins of labour law
Labor law arose due to the demands of workers for better conditions, the right to organize, and the simultaneous demands of employers to restrict the powers of workers’ organizations and to keep labour costs low. Employers costs can increase due to workers organizing to win higher wages, or by laws emposing costly requirements, such as health and safety or equal opportunities conditions. Workers’ organisations, such as trade unions, can also transcend purely industrial disputes, and gain political power – which some may be opposed to. The state of labour law at any one time is therefore both the product of, and a component of, the conditions for, struggles between different interests in society.
Collective labour law
Collective labour law concerns the tripartite relationship between employer, employee and trade unions. Trade unions (or labour unions) are the form of workers’ organisation most commonly defined and legislated on in labour law. However, they are not the only variety. In the
Individual labour law
Individual labour law deals with people’s rights at work place on their contracts for work. Where before unions would be major custodians to workplace welfare, there has been a steady shift in many countries to give individuals more legal rights that can be enforced directly through courts.
There may be law stating the minimum amount that a worker can be paid per hour.
The minimum wage is usually different from the lowest wage determined by the forces of supply and demand in a free market, and therefore acts as a price floor. Those unable to command the minimum wage due to a lack of education, experience or opportunity would typically work in the underground economy, if at all. Each country sets its own minimum wage laws and regulations, and while a majority of industrialized countries has a minimum wage, many developing countries have not.
Hours of labour and holidays
Eight-hour day
Before the Industrial Revolution, the workday varied between 11 and 14 hours. With the growth of capitalism and the introduction of machinery, longer hours became far more common, with 14-15 hours being the norm, and 16 not at all uncommon. Use of child labour was commonplace, often in factories. In
The eight-hour movement’s struggle finally led to the first law on the length of a working day, passed in 1833 in
The main features of the Code are:
Retroactivity: The Labor Code extends its force to the existing labor relations established before its adoption. However, this is not absolute retroactivity, meaning that Labor Code will not be applied to regulate labor disputes already arisen and submitted to courts before its adoption.
Stricter definition of legal labor relations: that is relation between employer and employee is established for the purpose of performance of the work by the employee for the employer followed by remuneration of an employee for the work carried out. Hence, performance of the work without remuneration and relation with the employer is not considered as legal labor relation.
Extending workig age: In general the labor capacity of a person shall arise upon the attainment of the age of sixteen years, i.e. it is permitted to hire sixteen years old person without consent of his/her legal representative. Arising of labor capacity does not mean the arising of full capacity which normally arises upon attainment of the age of eighteen years. Accordingly, arising of labor capacity for a person attained at the age of sixteen years does not extend to other legal relations and is related only to the right to conclude the labor contract. It is also possible to conclude a labor contract with the person under sixteen. However, in this case, the employer shall request the consent of statutory representative of person or guardianship and curatorship agency. While hiring a person under 16 several mandatory terms are to be observed: a) labor relations shall not be at variance with the interest of a minor, shall not impair his/her moral, physical and mental development and b) shall not prevent him/her from receiving the compulsorily education. The labor contract with the minor under the age of fourteen years may be concluded only in the fields of sport, art, cultural activities and advertising .
Hence, new Labor Code regulates the issues related to the labor contract by means of nonmandatory norms, which during the conclusion of contract gives the parties a wider choice and does not limit them with imperative requirements concerning the observance of the form of the contract. However, the procedure of termination of the contract is regulated by imperative norms in order to protect the employee.
European labour law
The European Working Time Directive limited the maximum length of a working week to 48 hours in 7 days, and a minimum rest period of 11 hours in each 24 hours. Like all EU Directives, this is an instrument which requires member states to enact its provisions iational legislation. Although the directive applies to all member states, in the
Labor law includes the legal rules combined in the Labor Code of 2001 that governs the matters of the labor contracts, working hours, holidays and rest days, safety at the working place, wages, sick leave, social protection, the labor disputes resolution, as well as basics of trade union activity.
Professional orientation of students:
Medical law is the branch of law which concerns the prerogatives and responsibilities of medical professionals and the rights of the patient. It should not be confused with medical jurisprudence, which is a branch of medicine, rather than a branch of law.
The main branches of medical law are the law on confidentiality, negligence and torts in relation to medical treatment (most notably medical malpractice), and criminal law in the field of medical practice and treatment. Ethics and medical practice is a growing field.
Medical ethics is a system of moral principles that apply values and judgments to the practice of medicine. As a scholarly discipline, medical ethics encompasses its practical application in clinical settings as well as work on its history, philosophy, theology, and sociology.
BIBLIOGRAPHY:
A. Principal:
1. Law Dictionary: Mass Market Edition (Barron’s Legal Guides), Stephen H. Gifis.
2. Universal Human rights in Theory and Practice, Jack Donnelly.
4. From Modernization to Globalization. Social perspectives on International Development // J. Timons, Amy Hite. – Blackwell Publishers, Oxford, UK, 1999.
5. Lon L. Fuller, The Morality of Law (1964, 2nd ed. 1969). See also Barnabas D. Johnson, Rule of Law: Ten Principles Governing Law and Law-Making, which summarizes and builds on Fuller’s work.
4. Lecture.
B. Sites:
http://www.hg.org/law-books.html;
http://www.campusbooks.com/books/law/.
The methodical instruction has been worked out by: Sopiha M.O.
The methodical instruction was discussed at the Chair sitting «27» August 2013
Minute № 3
The Head of the Department of Medical Law Rogalskyy I.O.
TERNOPIL2013
