Problems of legality

Legal Consciousness as a Philosophical and Legal Category: Historical and Contemporary Interpretations

2024-12-26T11:08:11+02:00

The relevance of this study stems from the need to develop a comprehensive understanding of legal consciousness as a multidimensional phenomenon, to create a theoretical foundation for effective practices in legal education and legal socialization, and to deepen knowledge of the mechanisms of formation and functioning of the legal system. Despite a significant number of studies dedicated to legal consciousness, there is still no unified, comprehensive model in the scholarly discourse that adequately describes this multifaceted phenomenon. The absence of such a model complicates further development in the theory of law and philosophy of law. Modern studies increasingly demonstrate that legal consciousness is an integrated socio-legal category. That is, it is not confined solely to philosophical and legal discourse but also encompasses psychological and social aspects. This broad scope presents challenges for research while simultaneously opening new perspectives for scholarly analysis. The aim of this work is to identify and describe the evolution of scholarly approaches to understanding legal consciousness. Such an analysis allows for identifying key stages in the development of the concept of «legal consciousness», determining dominant paradigms and concepts, analyzing the interconnection of philosophical, psychological, and sociological aspects of legal consciousness, and revealing unresolved issues and prospects for further research. The methodological aspects of the study include: historical analysis (examining the evolution of the concept of legal consciousness in the context of the development of philosophy, law, and society), comparative analysis (comparing various theoretical approaches to understanding legal consciousness), and an interdisciplinary approach (integrating philosophical, legal, psychological, and sociological research methods). This enables an analysis of the dynamic evolution of the concept, from ancient philosophical concepts to contemporary sociocultural interpretations; an understanding of shifting emphases, from moral and philosophical aspects to psychological, sociological, and cultural dimensions; and an examination of the influence of historical contexts – how the understanding of legal consciousness has changed in various sociocultural conditions. The research results identify the following key trends: interpretive pluralism – the absence of a single definition and the diversity of approaches to analyzing legal consciousness; interdisciplinarity in research – the interaction of philosophy of law, sociology, psychology, and other sciences in the study of this phenomenon; and problematization – growing interest in studying the distortions of legal consciousness in the context of modern social transformations. The conclusions of the study can be used as a theoretical basis for developing effective mechanisms to form society’s legal consciousness.

Mid-20th century vision of the concept of militant democracy

2024-12-24T00:07:04+02:00

With the beginning of the full-scale invasion, a new round of “militant democracy” is taking place. The current situation is very similar to the one that led to the invention of the very concept of “democracy capable of defending itself.” This raises the question of understanding “militant democracy” in its original and primary vision, which was formed in the middle of the twentieth century. The purpose of the article is to comprehensively disclose the concept of militant democracy in the middle of the twentieth century. It is based not only on the articles of Karl Löwenstahl, but also on the works of scholars in the fields of philosophy, political science and sociology. The achievement of this goal was made possible by the use of a set of methods of scientific knowledge, in particular, content analysis (for a comprehensive knowledge of the scientific works of scholars of the mid-twentieth century), formal logical method (to identify certain patterns, stable structures, interrelationships, and inconsistencies in scientific works), comparative legal method (by studying the experience of the last century and comparing it with the current understanding of the concept, to provide an up-to-date interpretation that would allow the use of the works cited in the article). In contrast to most studies of the sources of militant democracy, the article refers not only to the articles of the founder of “democracy capable of defending itself,” Karl Löwenstahl, but also to other scholars: Karl Schmitt, Karl Mannheim, and Karl Popper. The author shows the interrelation between the works and the mutual influence of the cited scholars. It is argued that the formation of the concept of militant democracy took place not only in the field of law, but also in other related sciences. Based on the results of the research, the author gives an intermediate definition of “democracy capable of defending itself”, which derives only from the articles of Karl Löwenstahl, and a finalized vision of militant democracy, which is a synthesis of all the analyzed works. On the eve of rethinking militant democracy in today's realities, it is necessary to re-comprehend the foundations of this concept, which will allow better implementation of necessary changes in our time.

Participants of the budget process at the level of local budgets: system, powers and challenges of martial law

2024-10-31T18:17:21+02:00

This article examines the powers and functions of key participants in the budgetary process at the local budget level in Ukraine. The activities of local self-government bodies, executive authorities, as well as territorial offices of the State Treasury Service, the State Tax Service, and the State Audit Service are analyzed. Particular attention is paid to their role in ensuring the efficient functioning of the budgetary system under martial law. It has been determined that coordination between the participants of the budget process, as well as ensuring financial transparency and accountability, is critical to maintaining the stability of local budgets, especially in light of the current challenges posed by armed aggression. The article also highlights the issues faced by the local budget management system during wartime, such as the need for rapid legislative adjustments, resource redistribution to support defense capabilities, and infrastructure restoration. The effectiveness of budget processes and the legal framework governing their implementation have been assessed. The analysis demonstrated that adapting the budget process to new realities is one of the key factors in maintaining the resilience of the financial system at the local level. Recommendations are provided for further improvement of legal regulation and financial control mechanisms to enhance the effectiveness of managing local budgets in times of crisis. The article contributes significantly to understanding the local budgetary process, particularly regarding the role of government bodies in ensuring the financial support of recovering and development of territorial communities under armed conflict conditions.

Defining intent as a form of fault: Implications for taxpayers

2024-10-28T10:39:34+02:00

The relevance of the research topic determines the systematic analysis of individual aspects of responsibility in the field of tax relations regulation. The study of the nature of individual elements of a tax offense is a prerequisite for a detailed analysis of the subjective side of a tax offense. The purpose of the article is to evaluate modern views on the nature and significance of finding out guilt when forming a holistic structure of a tax offense. At the same time, detailing the types of guilt and focusing principled attention on intent becomes important. This is due to the fact that the tax legislation and the specifics of the application of norms intentionally connect different amounts of fines for taxpayers. Achieving the set goal is based on the selection of the basic principles of clarifying the legal nature of the financial sanction depending on the specifics of the intentional behavior of the obliged person. The research uses a broad approach to the analysis of methods of scientific knowledge. The system method is implemented in the assessment of the grounds for the existence of a single system of financial responsibility based on the definition of all elements of the composition of a tax offense. This method makes it possible to build the basis of systematicity on two levels: on the one hand, through the formation of the system of elements of the composition of a tax offense, on the other hand, through the detailing of the system of types of intent. A certain continuation of the system method is the method of comparative analysis. Applying it in the work, attention is focused on the common features of various types of intent, the characteristics of the objective and subjective grounds of the composition of the tax offense. In addition, comparability characterizes the analysis of individual aspects of intent in the sense of criminal law and tax law regulation. The agreement of the prerequisites for the determination of intentionality in the assessment of the behavior of the payer and its application to the assessment of the relevant signs of intentionality were studied. Options for harmonizing the legislation, analysis of the Supreme Court's practice regarding the occurrence of adverse consequences in the form of the application of a fine when detailing the intentionality in the actions of the obliged persons are considered. The level and availability of scientific studies related to the characteristics of the problems included in the analysis of the composition of tax offenses and certain aspects of the assessment of intentionality in the actions of the subjects of the offense were analyzed. On the basis of the conducted research, conclusions were drawn and recommendations were made regarding the assessment of the behavior of tax offenders, the determination of their intent and the application of financial sanctions accordingly.

Are There Grounds for Tax Consequences of Non-Tax Reporting?

2024-10-28T10:44:39+02:00

The relevance of the research topic is determined by the peculiarities of the implementation of control powers by tax authorities in modern conditions. Similar features are related both to the sphere of relations, namely the circulation of excise goods, the procedures of which are controlled, and the specifics of materials and documents that are examined by the controlling authorities. Accordingly, there is a need for a clear answer to the question - whether non-tax reporting can directly generate tax consequences, which leads to the imposition of fines and penalties for the payer. The purpose of the article is to evaluate tax control measures that reflect the peculiarities of cameral, factual and documentary verification procedures. In order to achieve this goal, several tasks were identified. First, decide on the subject of camera and actual inspection, during which compliance with the legislation on the circulation of excise goods is assessed. Secondly, the ratio of the content of tax reporting and reports on the volume of acquisition and sale of tobacco products, which do not have a tax nature, but perform an exclusively statistical purpose. Thirdly, clarifying the reasons for tax consequences when submitting reports on compliance with licensing conditions for the sale of excise goods. The research uses a number of methods of scientific knowledge. First of all, the system method, on the basis of which the tax consequences regarding the control actions of tax authorities for the circulation of tobacco products are evaluated in the system of implementation of general methods of tax control, the system of tax inspections. In addition, in the mode of implementation of the comparative legal method, an assessment of the legislation that directly regulates tax relations and legislation, the regulation of which is aimed at streamlining the circulation of tobacco products, is carried out. And finally, the method of assessing the dynamics of the development of relations involves clarifying the nature of the phenomenon in dynamics from an assessment of how it happened before, how it is happening now, and what development prospects this phenomenon has. The reconciliation of the reasons for conducting tax audits with their consequences has been studied. Variants of harmonizing tax legislation and legislation regulating the circulation of excisable goods during the provision of tax reporting and its verification have been considered. The level and availability of scientific studies related to the generalization of the excise tax payment procedure, the state of judicial practice in resolving similar disputes, were analyzed.

Current Issues in the Application of the Provisions of the Law of Ukraine `On the Legal Regime of Martial Law` and Their Impact on the Administrative-Legal Status of Citizens During the Period of Martial Law

2024-12-16T11:13:16+02:00

The relevance of the conducted study is determined by the lack of comprehensive scientific research regarding the protection of citizens' rights during the enforcement of martial law. The purpose of the article is to analyze the provisions of the Law of Ukraine "On the Legal Regime of Martial Law" in terms of their impact on the administrative and legal status of citizens under martial law. General scientific and special methods of scientific inquiry were employed, including formal-logical, dialectical, systemic analysis, and dogmatic methods. The author conducted a systematic analysis of the provisions of the Law `On the Legal Regime of Martial Law`, addressing issues of potential violations of human and civil rights and freedoms due to the application of certain provisions of this law and their compliance with the norms of the Constitution of Ukraine. Factors and conditions for the introduction of martial law, as specified in the definition of `martial law` (Article 1), were analyzed, leading to the conclusion that the definition provided in the law does not fully correspond to the essence of the legal regime of martial law. It permits the imposition of martial law under conditions that do not pose a threat to the life and health of citizens or to the independence of the state, resulting in unjustified restrictions on citizens rights and freedoms. Based on the study, a revised definition of `martial law` was proposed, incorporating substantial changes compared to the existing law. This revised definition excludes the possibility of unwarranted imposition of martial law and stipulates restrictions only on specific rights and freedoms during its enforcement. To ensure the protection of citizens rights and freedoms, it is proposed to introduce two distinct emergency legal regimes in Ukraine related to external threats (aggression): a `state of threat (attack) regime` and a more stringent `martial law regime`. For each regime, the powers of state authorities, appropriate legal measures, and provisions for transitioning from one regime to another in the event of armed aggression must be defined. It is concluded that the implementation of the norms of the Law `On the Legal Regime of Martial Law`particularly the measures under the martial law regime, must not violate fundamental human and civil rights and freedoms that cannot be restricted even under martial law conditions. If the application of these norms leads to violations of citizens`rights, such norms must be amended or excluded from the law`s text.

The Impact of the Case Law of the EU Court of Justice on Law Enforcement in National Law in the Context of Ukraine's Integration into the European Union

2024-10-31T10:18:04+02:00

The article analyzes the legal status of the Court of Justice of the European Union in the legal system of the European Union in accordance with the EU founding treaties (Treaty on European Union, Treaty on the Functioning of the European Union), its interaction with the key institutions of the European Union, Member States and, in particular, their national judiciaries, as well as its role in ensuring respect for and a uniform approach to the application of European Union law in the territory of the 27 EU Member States. In the context of Ukraine's integration into the European Union, the author examines aspects of the importance of the EU Court of Justice and its case law in law enforcement, in particular, the emergence of a mechanism for interpreting EU law for national courts. The case-law of the EU Court of Justice, in particular, in the cases C-715/17, C-718/17, C-719/17 (European Commission v. Poland, Hungary and the Czech Republic), C-658/11 European Parliament v. Council of the European Union, studied in the article, demonstrates the importance of the EU Court of Justice in preventing disputes and ensuring the uniformity of EU law. The EU experience shows that the case law of the CJEU helps to overcome differences in legal interpretation, promotes the rule of law, and forms the basis for effective legal harmonization. Ukraine, as a country on a way to join the European Union, faces the need to implement the judgments of the EU Court of Justice and take them into account in law enforcement for effective adaptation of national legislation to European standards. The article examines the main aspects of the impact of the case law of the EU Court of Justice on the legal system of Ukraine after its accession to the European Union and focuses on the challenges that may arise in the process of harmonization of Ukrainian legislation with the EU acquis.