Problems of legality

Legal Science in the Context of the European Research Area: Paradigmatic and Institutional-Functional Aspects of the Integration of Scientific Knowledge

2026-04-29T14:49:33+03:00

This article provides a comprehensive overview of the paradigmatic and institutional-functional aspects of the integration of scientific knowledge in Ukrainian legal scholarship, taking into account the relevant experience of Romania and Bulgaria as member states of the European Union. Particular attention is paid to the analysis of current trends in the transformation of the concept of the European Research Area, which envisages the improvement of mechanisms for the interaction of legal science with the state, society, and legal practice. These changes are aimed at the effective integration of EU scientific resources and ensuring the free movement of researchers, knowledge, and technologies. It is argued that the institutional-functional dimension of the integration of scientific knowledge determines the level of institutional capacity of legal science, its ability to influence social processes, and the formation of legal policy. The methodological foundation of the study is based on a combination of comparative legal, doctrinal, and interdisciplinary approaches, which allows for a comprehensive understanding of the evolution of legal science. The methodology of legal science is interpreted as a complex discursive system that integrates doctrinal-ideological, strategic, and instrumental components. The results obtained are aimed at substantiating the priority directions for the methodological renewal of legal science in Ukraine in the context of European integration and strengthening its role in social development.

Public Control in a Constitutional Democracy: Ecuadorian Experience and Ukrainian Perspective

2026-05-12T11:08:15+03:00

The development of constitutional democracy in Ukraine under martial law, the digital transformation of governance, and the strengthened role of civil society make it increasingly important to provide a clear legal conceptualisation of the activity of citizens who influence public authority without holding an electoral mandate. At the level of current legislation, certain forms of civic participation have received normative regulation; however, the holistic constitutional and legal status of a citizen who exercises an oversight and supervisory function in relation to public authority without an electoral mandate remains normatively undefined. The aim of the study is to clarify the relationship between the activity of representative institutions grounded in an electoral mandate and civic participation without such a mandate in a constitutional democracy, drawing on the experience of Ukraine and Ecuador. The study employs the comparative legal method, a formal-legal analysis of the constitutional provisions of both states, as well as systemic-structural and functional approaches to distinguishing the significance of representative activity and civic participation within the mechanism of public authority. As a result of the study, it is proposed to introduce into legal terminology the concept of the «participant» — used here in a narrow, substantive sense as a counterpart to the «representative» — to designate the subject of participatory action, by analogy with how «representative» designates the subject of representative action. A functional distinction between these two roles has been identified: the representative acts within the hierarchy of public authority, whereas the participant performs an oversight and supervisory function from outside it. An example of such a distinction at the constitutional level is provided by Ecuador, where representation and civic participation are recognized as equally weighted components of the constitutional order. Prospects for further research relate to the conceptualization of the figure of the participant as an independent subject of constitutional democracy — its doctrinal elaboration as a necessary component of the state order alongside the figure of the representative. At the same time, account should be taken of the negative aspects of the Ecuadorian experience, which faced the political capture of participatory bodies in cases where they were vested with authoritative.

Issues Regarding the Determination of the Status of Local Government Officials in the Practice of the Supreme Court

2026-05-16T13:21:15+03:00

This article examines the impact of entering a fixed-term employment contract on the legal status of a local government official. The topic is relevant because of the ambiguity in judicial practice regarding the application of Article 10 of the Ukrainian Law on Service in Local Self-Government Bodies, the decentralization reform, the expansion of temporary appointments under martial law, and the need to ensure legal certainty in the public service sector in the context of Ukraine’s European integration.

The study provides a comprehensive analysis of Ukrainian legislation, legal positions of the Grand Chamber of the Supreme Court, the Supreme Court, and the National Agency of Ukraine on Civil Service regarding the status of individuals appointed to local self-government bodies under fixed-term employment contracts. The article also examines scholarly approaches to the nature of municipal service and the correlation between formal and functional criteria for determining the status of a public servant.

Attention is devoted to a comparative legal analysis of the legislation of France, the Republic of Lithuania, and the Federal Republic of Germany, which demonstrates the prevalence of a functional approach in European legal systems when determining the status of persons exercising public authority functions within local self-government bodies.

The author substantiates the conclusion that the fixed-term nature of an employment contract should not, in itself, preclude a person from acquiring the status of a local self-government official where such a person performs organizational-administrative and advisory functions. The article proposes reconsidering the existing judicial approach and improving Ukrainian legislation to ensure legal certainty, equality, and compliance with the principles of good public governance.

Theoretical and Practical Issues of the Concurrence of Positions and Statuses in the Local Self-Government System

2026-05-06T15:00:06+03:00

This academic article examines the issue of the concurrent holding of positions by certain public authorities, a topic of current relevance in the fields of constitutional and municipal law. It provides a general overview of the legal regulation of concurrent holding in the sphere of local self-government and analyses the constitutional provisions governing this matter. Greater attention is paid to the regulation of the mechanism prohibiting the combination of positions and statuses at the level of Ukrainian laws, as it is these that elaborate on the constitutional principles. At the same time, given the title and purpose of the article, the scope of the study focuses on legislation in the sphere of local self-government. The article develops views on the institution of concurrent office-holding as an interdisciplinary legal institution. It is identified as particularly important that the regulation of the procedure for holding concurrent positions and restrictions on such holding is governed by both labour legislation and municipal law. Therefore, this institution combines private-law and public-law relationships, which requires these features to be taken into account during their legislative regulation. Taking into account the legislator’s approach to introducing a ban on holding concurrent posts at those levels where this could genuinely lead to corruption, the article highlights those which, in our view, have been unjustifiably excluded from legislative restrictions. We present our own conclusions and generalisations, which will contribute to resolving the existing problems regarding the implementation of the principle of non-combination of positions and statuses in the sphere of local self-government.

Genesis of the principle of freedom of contract

2026-03-14T13:28:40+02:00

The relevance of the study lies in the fact that the article is devoted to the genesis of the principle of freedom of contract. Attention is paid to the correlation between the principles of contractual obligation and freedom of contract, taking into account existing legal doctrines that reflect different approaches to their understanding and correlation. The purpose of the article is to outline the genesis of the principle of freedom of contract, taking into account the methods of interpretation and scientific doctrine. From the point of view of methodology, the article is built taking into account the analysis of the doctrine, national views and legislation, which cover the boundaries of understanding the principle of freedom of civil law contracts. To achieve the goal of the study, the following methods were used: formal-logical, generalization, linguistic analysis, and comparative law method. The methods presented make it possible to objectively and fully outline the legal nature and genesis of the principle of freedom of civil law contracts. The following results were obtained in the process of the study. The author asserts the need to maintain the vector of elegant socialisation of contract law, which is based on the ideas of F. Lotmar and O. von Hierke. (in particular, the idea of a “drop of social oil” (Tropfen des sozialen Oels). Courts must take into account the principle of contract bindingness, the rules for interpreting the contract until it is clear that the parties are acting unfairly, unreasonably or trying to evade the performance of the contract by applying the principle of freedom of contract. Given that contracts occur in both civil and labour law, there is no single trend in contract law to formalise requirements for the procedure for coordinating the wills of the parties. The author also found that if the socialization of the contract and the fairness of the terms of a particular contract are inferior to the bindingness of the contract, then in this case, the economic efficiency of the contractual model outweighs the constitutional and human value of human rights. The author also came to the conclusion that the doctrine of contract fairness is inferior to the doctrine of contract bindingness due to insufficient depth of elaboration, as it contains diffusion in the form of “blurring” of the criteria for its application in practice.

Verification as a Methodological Problem of the Modern Theory of Civil Judicial Procedure

2026-03-02T10:12:31+02:00

The relevance of the article is determined by the need to study problems arising from the insufficient development of methodological support for civil procedural law, which manifests itself, in particular, in the crisis trends of modern legal methodology and the need to adapt the principles of logical positivism to the specifics of legal reality. These circumstances highlight the need to strengthen the role of special methods of scientific knowledge, among which verification is of particular importance as a tool for checking the reliability and validity of scientific propositions in the field of civil procedure. The purpose of the article is to study verification as a methodological problem of modern civil procedure theory, as well as to identify ways to increase the level of verifiability of scientific results in procedural and legal research, in particular based on the analysis of judicial practice as an empirical basis for legal knowledge. The methodological basis of the study is a combination of general scientific and special legal methods of cognition, in particular formal legal, systemic, structural-functional, as well as empirical methods aimed at analyzing and generalizing judicial practice in order to verify the theoretical provisions for their compliance with the reality of law enforcement. The key methodological guideline is the principle of methodological pluralism, which ensures the comprehensiveness and multi-level nature of the study, as well as creates the possibility of combining normative, doctrinal, and empirical levels of cognition. The scientific novelty of the study lies in substantiating the place, role, and functional purpose of verification in the system of civil procedural law methodology, determining its significance as a means of increasing the reliability of scientific results and ensuring their compliance with law enforcement practice. The work reveals the specific qualitative characteristics of procedural and legal methodology, determines its features in the general system of legal methodology, and justifies the need to integrate empirical research methods as a tool for testing and confirming theoretical propositions. The theoretical and practical significance of the results obtained lies in the possibility of their use for the further development of the methodology of civil procedural law science, increasing the level of validity of scientific research, as well as improving law enforcement and judicial practice based on verifiability, objectivity, and methodological validity.

Tortious and Contractual Liability: (Re)Demarcation, Enclaves, and Grey Zones

2026-04-05T19:26:03+03:00

The article examines the problem of delimiting tortious and contractual liability in civil law – a question that, despite its apparent theoretical clarity, retains considerable practical complexity. It is established that the demarcation line between the two liability regimes is not a clear normative boundary but a dynamic and structurally unstable one, giving rise to two types of problematic situations: "enclaves" and "grey zones."

"Enclaves" refer to situations where a legal institution that by its nature gravitates toward one regime operates within the space of the other. A telling example is liability for damage caused by a defect in a product (product liability): notwithstanding the contractual relationship between the manufacturer and the buyer, the legislature deliberately subjects this class of harm to the tort regime, precluding any contractual limitation of liability for damage caused to life, health, or property falling outside the "orbit" of the contract. The "grey zone" is occupied by pre-contractual liability (culpa in contrahendo), whose legal nature remains contested, though functional analysis supports its tortious characterisation – with corresponding consequences for the scope of recoverable damages. The tort of inducing breach of contract is examined separately, illustrating the capacity of tort law to protect relative rights arising from a contract.

The relevance of this study to the Ukrainian legal order is defined by the operation of the non-cumul principle – the prohibition on the concurrence of actions – which renders a mischaracterisation of the claim directly consequential in procedural terms. It is concluded that the correct classification of harm as contractual or tortious is the outcome of a teleological analysis rather than the mechanical application of formal criteria.

Court Fees as a National Instrument for Access to Justice in Ukraine: a Procedural Barrier or a Forced Necessity

2026-03-19T12:09:50+02:00

This article explores the legal nature of ‘court fees’ as one of the indicators and procedural filters for access to justice. Thus, in examining the main doctrinal approaches to the value of access to justice, the authors conclude that account must be taken not only of the legal framework but also of the social and economic development of the country in which an individual seeks to protect their violated, unrecognised or disputed rights. Furthermore, the authors conduct a detailed analysis of theoretical and legal approaches to the procedure for determining the ‘court fee formula’, and identify the main problematic issues and ways to address them. An analysis of European Union legislation regarding the differentiation of court fees suggests that it would be appropriate to introduce uniform standards regarding their amount. The research devotes considerable attention to institutional mechanisms for amending national legislation concerning court costs, in particular their differentiation by court level. As a result, the authors make proposals for improving the current legislation of Ukraine.

The Mobile Conflict of Laws in Matrimonial Property Regimes: European Approaches and National Case Law

2026-04-07T11:59:42+03:00

This article examines the phenomenon of the mobile conflict in the law of matrimonial property regimes within the framework of private international law. A mobile conflict arises when spouses relocate between states, potentially altering the connecting factor that determines the applicable law governing their property regime. The relevance of the topic is driven by the growing international mobility of married couples, the deepening European integration of Ukraine, and the absence of specific conflict-of-laws rules on matrimonial property regimes involving a foreign element in national legislation, which gives rise to divergent case law. The aim of the article is to examine the principle of immutability of the matrimonial property regime in cross-border relations through the lens of the European approach and national case law, and to substantiate the need for a clear distinction between the property statute and the matrimonial property statute when adjudicating such disputes. The achievement of this aim was made possible through a comprehensive methodological approach, including the comparative legal method to contrast the legal regulation of the EU, Italy and Ukraine; the formal legal method to interpret conflict-of-laws rules and judicial decisions; and the systemic method to establish the interrelationship between property law, family law and private international law. The article traces the doctrinal evolution from classical models of automatic mutability to the modern principle of immutability, codified in EU Regulation No. 2016/1103 on the law applicable to matrimonial property regimes. Particular attention is devoted to the distinction between the matrimonial property statute and the property statute, the conflation of which is identified as a recurring error in judicial practice. Through analysis of the Supreme Court of Ukraine judgment of 28 January 2026 in case No. 554/4080/23, the article examines the divergent approaches of successive court instances to the legal status of real property acquired in Ukraine by spouses who had contracted marriage in Italy under the separate property regime. It is concluded that the court of first instance correctly applied the conflict-of-laws rule recognising the foreign matrimonial agreement, whereas the appellate court erred by substituting the matrimonial property statute with the property statute. The Supreme Court held that the separation regime chosen at the time of marriage constitutes an element of the matrimonial property statute and continues to govern property acquired during marriage regardless of its location. The article argues for harmonisation of the Ukrainian approach with the immutability principle enshrined in EU law.

Digitalization of Customs and Foreign Economic Activities in International Law and EU Customs Legislation: Rule of Law in the Digital Paradigm

2026-05-19T11:08:22+03:00

The relevance of this topic is determined by the need to expand doctrinal perspectives on the legal nature of digitalization and digital transformation within the fields of customs and foreign economic activity in the European Union, specifically through the prism of the digital paradigm of the rule of law. The article aims to examine the organizational and legal foundations, as well as the current state of legal framework governing the digitalization and digital transformation of the activities of customs authorities within international customs law and EU customs legislation and finding the ways to rule of law challenges emerging within the digital paradigm. The achievement of the specified objective was made possible through an integrated approach to the application of scientific methods, specifically: the dialectical method; the historical-legal method; the formal-legal method; the comparative-legal method; the systems approach; the formal-legal method as well as the method of systems analysis and the formal-logical method, among others. A comprehensive analysis of international standards and EU customs legislation regarding the harmonization and simplification of customs procedures, customs security issues, digitalization, and the digital transformation of customs authorities has been conducted. The process of digitalization and digital transformation of EU customs authorities is described, and its stages are identified. The legal nature of the digitalization of EU customs authorities is elucidated against the backdrop of globalized cross-border trade and scientific and technological progress. General trends in digitalization and digital transformation within international customs law and EU customs legislation are identified, specifically concerning the implementation of the «e-Customs» project and the creation of a paperless customs environment and the transition from transaction-based checks to continuous data-driven surveillance, relying on integrated digital platforms, unified databases, and innovative risk management tools, as well as the establishment of a supranational customs authority to ensure the centralized functioning of the «EU electronic customs». The ways to overcome challenges to the rule of law are outlined, along with promising directions for further scientific research within the context of the digital paradigm of the rule of law.

Current Issues of Ensuring Citizens’ Right to a Fair Trial under the Legal Regime of Martial Law

2026-05-25T08:19:41+03:00

The subject of this research is highly relevant, given that the war initiated by the Russian Federation against Ukraine has been ongoing for twelve years. However, even under martial law, the state must guarantee citizens’ right to judicial protection and to a fair trial as established by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Constitution of Ukraine, and the laws of Ukraine. Unfortunately, only a limited number of comprehensive studies have been conducted in Ukraine regarding the state’s obligation to ensure citizens’ rights to judicial protection, particularly procedural rights, during the operation of the legal regime of martial law. The purpose of this article is to provide a systematic analysis of the adopted legal and regulatory acts in terms of their effectiveness in ensuring the implementation of citizens’ right to a fair trial during wartime. In particular, the study examines amendments to Article 147 of the Law of Ukraine “On the Judiciary and the Status of Judges,” as well as orders issued by the Head of the Supreme Court of Ukraine and decisions of the High Council of Justice concerning changes in territorial jurisdiction and the restoration of court operations, in the context of their impact on the administrative and legal status of citizens during martial law. The study employed both special and general scientific methods of cognition, including the dialectical, dogmatic, system analysis, and formal-logical methods. The research concludes that in cases where court proceedings are transferred from courts located in active combat zones to courts operating in safer regions, such cases at the new location may be considered only upon the written consent of the claimant (applicant or complainant) as the initiator of the judicial process, except where the person has submitted a request for consideration of the case in their absence. It has been demonstrated that territorial jurisdiction is determined personally by the claimant (applicant or complainant) when filing a claim in accordance with the rules of jurisdiction established by the relevant procedural legislation, taking into account the person’s status, place of residence, subject matter of the claim, and other circumstances. Therefore, territorial jurisdiction of a case cannot be altered by judicial authorities. The study also concludes that persons who, as a result of the armed aggression of the Russian Federation against Ukraine, were forced to leave the territory of Ukraine and who were parties to judicial proceedings or against whom claims were filed during the war should have the right to mandatory suspension of proceedings upon their request. This is justified by the fact that such persons left the country not voluntarily, but due to force majeure circumstances caused by the war. Accordingly, amendments to procedural legislation are proposed in order to establish the court’s obligation to suspend proceedings in such cases.

The Formation and Development of Administrative and Legal Regulation of Children's Sports in Ukraine (19th – Early 21st Century)

2026-04-27T17:02:55+03:00

The article provides a comprehensive historical-legal and theoretical-legal analysis of the formation and development of administrative-legal regulation of children's sports. The research aims to identify the patterns in the evolution of the legal status of the child in the sphere of sports legal relations and to determine its contemporary content. It is established that the development of children's sports has been uneven and dependent on transformations in public administration models. Three main historical stages are distinguished. Within the imperial period, the absence of an institutionally established system of children's sports and the non-recognition of the child as a subject of sports legal relations are recorded. The Soviet period is characterized by the formation of a centralized administrative-command model, within which children's sports acquired institutional form; however, the child was viewed as an object of state policy and an element of the sports reserve training system. At the current stage, a transformation of this model is taking place, accompanied by the formal recognition of the child as a participant in sports legal relations, yet without proper specification of their administrative-legal status. It is argued that the current state of legal regulation of children's sports has a transitional nature and combines elements of different historical models. The scientific novelty of the research lies in the formation of a holistic model of the evolution of the legal personality of the child in the field of sports, which reflects the transition from its absence to declarative recognition and requires further normative development.

Between Necessity and Excess: Social Conditionality of the Criminalization of Aggression Justification (Article 4362 of the Criminal Code of Ukraine)

2026-04-28T14:17:52+03:00

Relevance. In the context of the full-scale armed invasion by the Russian Federation and its prolonged hybrid aggression against Ukraine, the issue of the social conditioning of criminal law prohibitions aimed at countering information aggression acquires particular theoretical and practical significance. Article 436² of the Criminal Code of Ukraine, which establishes criminal liability for justifying, recognizing as lawful, denying the Russian Federation's armed aggression against Ukraine, and glorifying its participants, constitutes a relatively recent legislative decision that requires comprehensive scholarly analysis from the perspective of criminal law doctrine.

Purpose. The study aims to identify and analyse the combination of factors that served as the driving force behind the criminalization of the relevant acts, as well as to assess whether the legislative decision corresponds to genuine social needs.

Methods. The study employs a three-dimensional analysis of the grounds for criminalization — legal-criminological, socio-economic, and socio-psychological — in their interrelation with the principles of criminalization as systemic-legal guidelines for legislative activity. The dialectical method was used to identify the contradiction between social needs and the capabilities of the criminal law tools; general logical methods for forming generalized conclusions; special legal methods for analyzing the disposition and sanctions of Article 436² of the Criminal Code of Ukraine, its conflicts and statistics of judicial practice; as well as systemic and historical approaches to establishing correlations between the deformations of criminalization and the genesis of the information aggression of the Russian Federation.

Results. It is established that the social conditioning of criminal liability for acts covered by Article 436² of the Criminal Code of Ukraine is fundamentally differentiated depending on the form of their commission. Criminalization of public forms of relevant acts is socially justified, since they are characterized by a high degree of public danger and the ability to influence mass consciousness. On the other hand, the extension of the criminal law prohibition to non-public forms of behavior has signs of excessive criminalization, since it is not based on sufficient legal and criminological, socio-economic and socio-psychological grounds.

Prospects. Further research is associated with developing an optimal legislative model of criminalization that ensures a balance between the effectiveness of countering information aggression and the observance of individual rights and freedoms.

Methods of Encroachment on Cryptoproperty: Main Types and Qualification

2026-05-19T16:25:59+03:00

The rapid growth in the capitalisation of the cryptoasset market has led to an increase in the number of criminal encroachments on cryptoproperty. The technological complexity and digital nature of cryptoassets give rise to new methods of their unlawful acquisition, which creates a need for the scientific systematisation of such encroachments and the formation of unified approaches to their criminal-law qualification. The aim of the article is to classify the principal methods of stealing cryptoassets and, based on the analysis of the mechanism by which they are committed, to determine the specific features of the criminal-law qualification of such acts under the criminal legislation of Ukraine. The dialectical, formal-legal, system-structural, comparative-legal, and sociological methods have been employed. It is proposed to divide the methods of encroachment on cryptoproperty into two groups: traditional (violent seizures, fraudulent acquisitions, misappropriation, embezzlement, or seizure through the abuse of office) and non-traditional (the use of spyware, substitution of payment details, the use of counterfeit tokens, and exploitation of vulnerabilities in smart contracts). In cases involving the use of technical means of interference in the operation of information systems, the perpetrator's actions require additional qualification under the articles of Chapter XVI of the Criminal Code of Ukraine.

National and foreign experience in the criminal-legal protection of an individual’s digital rights

2026-05-17T22:36:45+03:00

The relevance of the study is determined by rapid globalization, the digitalization of social relations, the development of artificial intelligence, and the emergence of a new object of criminal law regulation, namely the digital rights of the individual. The purpose of the article is to define the concept of “digital rights of the individual” and the body of these freedoms as an object of criminal law protection, as well as to clarify the specific features of their protection in the national and international dimensions. The research methodology includes formal legal, comparative legal, analytical, and systemic-structural methods. It has been established that the digital rights of the individual have evolved from the traditional rights to privacy, secrecy of correspondence, and protection of personal data. It has been found that the criminal legislation of Ukraine already contains provisions aimed at protecting digital rights; however, these norms protect them only indirectly and do not define digital freedoms as a separate object of legal regulation. It has been clarified that the Budapest Convention, acts of European Union law, the case law of the European Court of Human Rights as a source of national law, as well as foreign approaches to the regulation of digital rights, are of considerable importance for the formation of policies concerning this object. It has been proved that the European model is based on a risk-oriented approach, the American model on a pragmatic approach, while the Ukrainian model has a prohibitive-regulatory character. Prospects for further research are connected with clarifying the list of digital rights, distinguishing them as a separate object of criminal law protection, and modifying criminal legislation in accordance with the challenges of hybrid warfare, the development of artificial intelligence, cyber threats, and digitalization.