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MODERN LEGAL SYSTEMS

There are hundreds of legal systems in the world. Although each system has its own individuality, it is possible to group many of them into legal 'families'.

In general, legal systems around the world can be split into civil law jurisdictions, systems using common law and equity, religious and customary law.  The specific system that a country follows is often determined by its history, its connection with countries abroad, and its adherence to international standards. The sources that jurisdictions recognize as binding are the defining features of legal systems. Yet classification of different systems is a matter of form rather than substance, since similar rules often prevail.

Civil law (sometimes known as Continental European Law or Romano-Germanic law) is the legal system used in most countries around the world today. In civil law the sources recognized as authoritative are, primarily, legislation – especially codifications in constitutions or statutes passed by government – and, secondarily, custom. Even the most ancient peoples compiled law codes. The earliest legal code known in its entirety is the Code of Hammurabi, a king who reigned over Babylon around 2000 BC. But modern civil law systems essentially derive from the legal practice of the Roman Empire, whose texts were rediscovered in medieval Europe. In the 6th century Emperor Justinian I appointed a commission to collect and consolidate existing sources of Roman law. This commission published three books that were collectively known as the Corpus Juris Civilis (Body of Civil Law), or the Justinian Code. The Code embodied many generations of legal documents as well as interpretations by great jurists (legal scholars).

The revival of the Roman civil law tradition eventually formed the basis for a common legal language throughout Europe.

Common law and equity (also called Anglo-American law) are systems of law whose special distinction is the doctrine of precedent. Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire. Common law had its beginnings in medieval England, influenced by the Norman conquest of England which introduced legal concepts and institutions from the Norman and Islamic laws.

Religious law is based on scriptures and their interpretations. The source of religious law is the deity, legislating through the prophets. Examples include the Jewish law (Halakha) and Islamic Sharia, both of which mean the "path to follow". Religious laws are eternal and immutable because the word of God cannot be amended or legislated against by judges or governments. However religion never provides a thorough and detailed legal system. In a religious legal system disputes are usually settled by an officer of that religion, so the same person is both judge and priest.

Customary law

In many parts of the world unwritten local or tribal custom sets the standard of behaviour and provides for conciliation and dispute settlement. Most of the African countries, for instance, have a formal constitutional and commercial law inspired by French, Belgian or British models but the relations between private individuals are regulated by customary law.   This also applies to China and India.

LEGAL PROFESSION in Ukraine

One of the most popular professions among the young people of our country is the profession of a lawyer. It is very interesting and important. Our country is creating a law-governed state, and lawyers play a very significant role in this process. They are necessary for regulating social relations in the state.

In Ukraine, training lawyers is the task of the law establishments such as Law Academies, Law Institutes, and law faculties of several higher institutions. Graduates of different law schools can work at the Bar, in the organs of the Prosecutor’s Office, in different courts, in notary offices, in legal advice offices, in organs of tax inspection, militia, as well as in different firms, companies, banks, enterprises, etc. They can work as advocates, judges, notaries, investigators, prosecutors, legal advisors, inspectors, customs officers, traffic officers, and other workers of law enforcement agencies.

Legal profession combines legal practitioners and scholars, members of the judiciary, and the Bar, prosecutors, defense lawyers, notaries, jurists and counsels (legal advisors of private, public, state and municipal enterprises, establishments and organizations) etc.

The Academy of Legal Sciences was established in 1993.  It is a national scientific organization, which carries out the fundamental researches and coordinates, organizes and fulfils works in the field of state and law.  The academicians and known scientists are the members of the Academy. There are also some other professional unions of lawyers in Ukraine.

The Union of Lawyers of Ukraine carries out lawmaking, scientific, methodological, educational and informative activities with the aim of promoting lawyers of Ukraine in their professional and social interests, their public activities and participation in the state policy development.

The Ukrainian Bar Association unites lawyers from all spheres of legal profession with the aim of protecting their professional and other common interests, developing the legal profession, and creating a law-governed state in Ukraine.

The Union of Advocates of Ukraine is an independent and self-governed public all-Ukrainian organization.  It is aimed at facilitating the role and authority of the Bar in our society and the state, the true independence and self-regulation of the Bar and developing the democratic state in Ukraine.

The Ukrainian Association of Prosecutors has a purpose to protect legal rights and interests of its members who worked/work in the Prosecutor’s Office, and support the prosecutors’ positive image in Ukraine and abroad, helping to fulfill their tasks.

The Ukrainian Notarial Chamber is a public organization which supports its members in their professional activities, makes efforts to improve notary system and participates in the law-making process.

The Ukrainian branch of the European Law Students’ Association – ELSA Ukraine is comprised of students and recent graduates of the Ukrainian law education establishments who are interested in law and have demonstrated commitment to international issues.

Spheres of Law

Law is a system of rules and guidelines, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. The field of civil rights deals with the balance of governmental power and individual liberties. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal and real property. Real estate law generally involves anything dealing with real property (land). These laws are designed to determine who owns land and the buildings on it, who has a right to possess and use land or buildings, the sale and purchase of real property, landlord and tenant issues, the development of real property, and compliance with local, state, or national regulations affecting the use of real property.

If the harm is criminalised in a statute, criminal law offers means by which the state can prosecute the perpetrator. So, it is a body of law that prohibits certain kinds of conduct and imposes sanctions for unlawful behaviour. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign states in activities ranging from trade to environmental regulation or military action. Employment law addresses the legal rights of workers and their employers. Issues might include disputes regarding wages, hours, child labor, workplace safety, discrimination based upon race, gender, age, and disabilities; and trade unions.

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 case law is not consolidated into the code. 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.

All legal systems deal with the same basic issues, but each country categorises and identifies its legal subjects in different ways. A common distinction is that between "public law" (a term related closely to the state, and including constitutional, administrative and criminal law), and "private law" (which covers contract, tort and property). In civil law systems, contract and tort fall under a general law of obligations, while trusts law is dealt with under statutory regimes or international conventions. International, constitutional and administrative law, criminal law, contract, tort, property law and trusts are regarded as the "traditional core subjects", although there are many further disciplines.

CONSTITUTIONAL LAW: TYPES AND FUNCTIONS OF CONSTITUTIONS

 

 Constitutions are the framework for government and may limit or define the authority and procedure of political bodies to execute new laws and regulations. Not all nation states have codified constitutions though all law-governed states have law of land consisting of various imperative and consensual rules. They may include common law, conventions, statutory law and international rules.

  Codified constitutions are considered rulemaking fundamentals, or rules about making rules to exercise power. They govern the relationships among the judiciary, the legislature and the executive bodies. One of the key tasks of constitutions within this context is to indicate hierarchies of power. For example, in a unitary state the constitution will vest ultimate authority in the central administration and legislature, and judiciary, though there is often a delegation of authority to local or municipal bodies. When a constitution establishes a federal state it will identify several levels government coexisting with exclusive or shared areas of jurisdiction over lawmaking, application and enforcement.

   Human rights or liberties for citizens form a crucial part of a country’s constitution and govern the rights of the individual against the state. Most jurisdictions, like the United States, Ukraine and France, have a single codified constitution. A recent example is the Charter of Fundamental Rights of the European Union, which was intended to be included in the Treaty establishing a Constitution of Europe.

   Some countries, like the United Kingdom, have no entrenched document setting out the fundamental rights – in this jurisdiction the constitution is composed of statute, case law and convention. Inspired by a famous philosopher John Locke, the fundamental constitutional principle is that the individual can do anything but that is forbidden by law, while state may do nothing but that is which authorized by law.

   The function of codified constitution is also to describe the procedure by which parliaments may legislate. For instance, special majorities may be required to alter the constitution. In two-chamber legislatures there may be a process laid out for second or third readings of bills before a new law can be passed.          

LOCAL GOVERNEMENT

A democracy is any system of government in which rule is exercised either directly by the people (direct democracy) or by means of elected representatives of the people (representative democracy). The acceptance of democratic values such as equality and individual liberty constitutes the essence of democracy. The key idea of democracy is that the people hold sovereign power. According to Abraham Lincoln democracy is “government of the people, by the people, and for the people”.

Democracy may take one of the two basic forms: direct and indirect. In direct democracy the people realize their power by voting on issues individually as citizens. But such form of democracy exists only in very small societies where citizens can actually meet regularly to discuss and decide key urgent problems (f.e. cantons of Switzerland). In indirect or representative democracy the people elect representatives and delegate them power to make laws and conduct government.  

Government is the mechanism through which the public will is expressed and made effective. The public will may be voiced by the people directly, through the agency of the initiative and referendum, but more often it is made manifest by action of the elected representatives in parliaments, legislatures and municipal councils. Representative democracy means a system of limited government where the people are the ultimate source of governmental power.    

Any social grouping possesses a kind of governmental structure. Local government is the basis of national self-government. Its essentiality is grounded on providing members of the community with various services for their benefit. The notion of self-government denotes the right and ability of local governmental authorities exercise the regulation and administration of a considerable part of social rights in the interests of local inhabitants according to their competence and legislature in force. This competence is granted by the Constitution of Ukraine and the Local Self-Government Law of Ukraine and local self-government charters. 

Lawmaking, establishing, controlling and law-governing are among the main functions of the local self-government. The territory is the basis of the local government. Administratively Ukraine is divided into 24 regions and the autonomous republic of Crimea. Each region has its local government bodies. Local self-government has its common, economic and legal guarantees. 

Every  local government area has its council, elected by the inhabitants. Councils are the representative bodies of local self-government. Local councils’ deputies and city mayors are directly elected by the citizens. Mayor leads the executive committee of the respective council and presides at its meetings. The council passes ordinances, the laws of the city sets the tax rate on property and apportions money among the various local departments.

Material and financial basis of local government is movable and immovable property, revenues of local budgets, land, natural resources owned by territorial communities of villages, settlements, cities, city districts, as well as objects of their common property that are managed by district and oblast councils.

According to the Local Self-Government Law of Ukraine, the functions of local self-government bodies are the following: social, economic and cultural development, planning and registration, budget, finances and prices, administration of the municipal property, housing and communal services, consumer and commercial services, public catering, transport and connection, building, education, health protection, culture, physical training and sport; regulation of land relations and preservation of environment, social protection of population, external economic activity, defensive work, guaranteeing of legality law and order, the rights liberties and legal interests protection of citizens.  

Judicial System in Ukraine

       Judicial power in Ukraine is based on the Constitution. It is an independent branch of state power created to solve legal problems between the state and citizens, citizens and legal persons; to supervise over constitutionality of laws; to defend citizens’ rights in their relations with bodies of state power and officials; to supervise citizens’ rights in the course of investigating crimes and conducting operational search activity; to establish the most significant legal facts.

      Judicial power is realized by judges in the form of civil, criminal, economic, administrative as well as constitutional legal proceedings. Thus, judicial system is an aggregate of all existing courts in Ukraine. They have jurisdiction over all legal relations that appear in the state. The system provides availability of justice for every person. The courts interpret and apply the laws created according to the Constitution of Ukraine.Their decisions are made on behalf of Ukraine and are obligatory for enforcement on the entire territory of the country.

       Judicial proceedings are administered by the Constitutional Court of Ukraine and courts of general jurisdiction.

      The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction. It decides on issues of conformity of laws and other legal acts with the Constitution and provides their official interpretation.

       Courts of general jurisdiction form the common system of courts united by aims, tasks, principles of organization and activity, and are headed by the Supreme Court of Ukraine. They are set up according to principles of territoriality and specialization. General courts are local, appellate, Highest Specialized Courts, and the Supreme Court. Economic, administrative and some other courts are defined as specialized.

       The lowest courts are local (district, city, etc), which are courts of first instance or trial courts, decide different types of cases. The appellate courts hear appeals from the local ones. The Highest Specialized Courts deal with cassations and determine the legality and reasoning of the previous court judgments. The Supreme Court, the highest court in their system, administers justice, ensures equal application of legislation by all courts of general jurisdiction.

       The specialized courts of general jurisdiction consist of administrative and economic courts resolving disputes in the sphere of administrative and economic legal relations.

                  Justice is administered by professional judges and, in cases determined by law, people’s assessors and jurors. Judicial proceedings are administered by a judge personally, a board of judges or a jury.

       A citizen of Ukraine of at least 25 years old, who has higher legal education and work experience in the sphere of law for not less than 3 years, has resided in Ukraine at least 10 years and speaks state language may be recommended by the qualification  commission for the position of a judge. The first appointment is made by the President for a five-year term. All other judges, except for judges of the Constitutional Court, are elected by the Verkhovna Rada for a lifetime. Professional judges must not belong to political parties and trade unions, occupy any other paid positions, and perform other paid work except scientific, teaching and creative activity.

      The independence and immunity of judges are guaranteed by the Constitution and laws of Ukraine.

The USA Court System

       Being the federal republic, the USA has both a federal and a state court system. The federal court system is responsible for interpreting and applying the laws created by the federal government under the authority of the US Constitution. Article III of the US Constitution requires the establishment of a Supreme Court and permits the US Congress to create other federal courts, and place limitations on their jurisdiction.

       The Supreme Court is the highest judicial body, the court of last resort and leads the federal judiciary. It meets in Washington, D.C. It is mainly an appellate court and hears only federal appeals which it has chosen. Most of the cases involve the interpretation of the Constitution. It also has the “power of judicial review”, i.e. the right to declare laws and actions of the federal, state, and local governments unconstitutional. Besides, the Court has limited original jurisdiction in cases involving foreign diplomats and in those, in which a state is a party. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states. It consists of the Chief Justice and eight Associate Justices, who serve “during good behaviour”, that is while they obey the law. Cases are decided by majority vote of the Justices.

       The federal Courts of Appeals (or circuit courts) are the intermediate appellate courts, and must hear all appeals from the district courts within their federal judicial circuits, and in some cases from other designated federal courts and administrative agencies. Now there are thirteen judicial circuits with one court of appeals. They review decisions of trial courts for errors of law and their decisions are binding precedents. An appeal is almost always heard by a panel of three judges who are selected from the available judges but in some cases all judges decide an appeal.        

       The District Courts are the federal trial courts. They hear both civil and criminal cases, and often decide claims based on state law. There are 94 federal judicial districts with at least one district court for each state, the District of Columbia and Puerto Rico. There is a US bankruptcy court as a unit of the district court.        

       Besides, some federal courts of special jurisdiction, such as the Tax Court, the Court of International Trade, Courts of Federal Claims and others administer justice in the country.

        All federal judges are appointed for life by the President with the approval of the Senate.

        Each state has an independent system of courts operating under the constitution and laws of the state. The names and jurisdiction of the courts differ from state to state but as a rule they have general jurisdiction. The highest court is the state supreme court (known by various names in various states), which hears appeals of legal disputes. In most states the lowest courts are the magistrates’ courts or police courts.

        The relationship between state courts and federal courts is quite complicated. Although the United States Constitution and federal laws override state laws where there is a conflict between federal and state law, state courts are not subordinate to federal ones. Rather they are two parallel sets of courts with different often overlapping jurisdiction.  

Types of Punishment

Criminal Punishment is a penalty imposed by the government on individuals who violate criminal law.  People who commit crimes may be punished in a variety of ways. Offenders may be subject to fines or other monetary assessments, the infliction of physical pain (corporal punishment), or confinement in jail or prison for a period of time (incarceration). In general, societies punish individuals to achieve revenge against wrongdoers and to prevent further crime—both by the person punished and by others contemplating criminal behaviour. Some modern forms of criminal punishment reflect a philosophy of correction, rather than (or in addition to) one of penalty. Correctional programs attempt to teach offenders how to substitute lawful types of behaviour for unlawful actions.

Throughout history and in many different parts of the world, societies have devised a wide assortment of punishment methods. In ancient times, societies widely accepted the law of equal retaliation (known as lex talionis), a form of corporal punishment that demanded “an eye for an eye.” If one person’s criminal actions injured another person, authorities would similarly maim the criminal. Certain countries throughout the world still practice corporal punishment. For instance, in some Islamic nations officials exact revenge-based corporal punishments against criminals such as amputation of a thief’s hand. Monetary compensation is another historic punishment method. In England during the early Middle Ages  payments of “blood money” were required as compensation for death, personal injury, and theft.

Although some societies still use ancient forms of harsh physical punishment, punishments have also evolved along with civilization and become less cruel. Contemporary criminal punishment also seeks to correct unlawful behaviour, rather than simply punish wrongdoers.

Certain punishments require offenders to provide compensation for the damage caused by their crimes. There are three chief types of compensation: fines, restitution, and community service.

A fine is a monetary penalty imposed on an offender and paid to the court. However, fines have not been widely used as criminal punishment because most criminals do not have the money to pay them. Moreover, fining criminals may actually encourage them to commit more crimes in order to pay the fines.

The term restitution refers to the practice of requiring offenders to financially compensate crime victims for the damage the offenders caused. This damage may include psychological, physical, or financial harm to the victim. In most cases, crime victims must initiate the process of obtaining restitution from the offender. Judges may impose restitution in conjunction with other forms of punishment, such as probation (supervised release to the community) or incarceration.

Alternatively, restitution may be included as a condition of an offender’s parole program. Prisoners who receive parole obtain an early release from incarceration and remain free, provided they meet certain conditions.

Offenders sentenced to community service perform services for the state or community rather than directly compensating the crime victim or victims. Some of the money saved by the government as a result of community service work may be diverted to a fund to compensate crime victims.

The most serious or repeat offenders are incarcerated. Criminals may be incarcerated in jails or in prisons. Jails typically house persons convicted of misdemeanours (less serious crimes), as well as individuals awaiting trial. Prisons are state or federally operated facilities that house individuals convicted of more serious crimes, known as felonies.

The most extreme form of punishment is death. Execution of an offender is known as capital punishment. Like corporal punishment, capital punishment has been abolished in Ukraine. 

Criminal Law

Criminal law (also known as penal law) is the body of law that deals with crime and the legal punishment of criminal offenses.

Criminal law seeks to protect the public from harm by inflicting punishment upon those who have already done harm and by threatening with punishment those who are tempted to do harm. The harm that criminal law aims to prevent varies. It may be physical harm, death, or bodily injury to human beings; the loss of or damage to property; sexual immorality; danger to the government; disturbance of the public peace and order; or injury to the public health. Criminal law also often tries to avoid harm by forbidding conduct that may lead to harmful results.

Criminal punishment, depending on the offense and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines. There are some archetypal crimes, like murder, but the illegal acts are not wholly the same between different criminal codes, and even within a particular code lines may be blurred, as civil law violations sometimes give rise also to criminal consequences. Criminal law typically is enforced by the government, unlike the civil law, which may be enforced by private parties.

Criminal law involves prosecution by the government of a person for an act that has been classified as a crime. Civil cases, on the other hand, involve individuals and organizations seeking to resolve legal disputes. In a criminal case, the state, through a prosecutor, initiates the suit, while in a civil case the victim brings the suit. Persons convicted of a crime may be incarcerated, fined, or both. However, persons found liable in a civil case may only have to give up property or pay money, but are not incarcerated.

CRIME INVESTIGATION: FORENSIC SCIENCE

Forensic science and scientific expertise serves the administration of justice by providing scientific support in the investigation of crime and providing evidence to the courts.

When a crime is reported to the police, patrol officers are usually the first to arrive at the scene. They perform the initial investigation; fill out the forms, such as the complaint; interview witnesses; make an arrest if there is a suspect. If a crime requires expert investigation, detectives are called in. The detective’s first task usually is to examine the facts in order to determine whether a crime has actually been committed and whether further investigation is required. If a full investigation is initiated, detectives collect evidence, interview witnesses and victims, contact informants. After an arrest is made, investigative work is extremely important to the outcome of a court case. Case preparation includes reviewing and evaluating all evidence and reports on the case; re-interviewing witnesses and assisting in their preparation for court appearances; and preparing the final report.

Legal detectives and investigators in common-law countries have a wide variety of techniques available in conducting investigations. However, the majority of cases are solved by the interrogation of suspects and the interviewing witnesses, which takes time. Besides interrogations, detectives may rely on a network of informants they have processed over the years. Informants often have connections with persons a detective would not be able to approach formally. The best way is to obtain a confession from the suspect, usually this can be done in exchange for entering plea bargain for a lesser sentence. Evidence collection and preservation can also help in identifying a potential suspect(s).

Criminalistics as a subdivision of forensic science is the application of various sciences to answer questions relating to examination and comparison of different types of evidence in criminal investigations. Typically, evidence is examined in a crime lab.

         A Crime Laboratory (often Crime Lab), is a scientific laboratory where scientists examine evidence from a criminal case. A typical crime lab has two sets of personnel. These are the investigators who go to crime scenes and collect evidence and process the scene. The second type of personnel in a crime lab is the people who run experiments on the evidence once it is brought to the lab.

       Each type of evidence has a specific value in an investigation. Evidence used to resolve an issue can be split into 2 areas. The testimonial evidence refers to any witnessed records of an incident. The physical evidence is any material item that is on the crime scene. What will evidence collected at a scene do for the investigation:

May prove that a crime has been committed.

Establish any key elements of a crime.

Link a suspect with a scene or a victim.

Establish the identity of a victim or suspect.

Confirm verbal witness testimony.

Release the innocent.

Among the identification methods there are fingerprinting, DNA profiling and microscopic examination.

THE PROSECUTOR’S OFFICE

           The Prosecutor’s Office of Ukraine is a part of the law-enforcement system of Ukraine. It composes a centralized system of organs united by common tasks, functions, principles of organization and activity. The head of this system is the Prosecutor General of Ukraine. He is appointed to the post for a five-year term by the President of Ukraine. But Verhovna Rada must approve this appointment. His resignation from the office may be made either by the President of Ukraine or by Verhovna Rada as a result of a vote of no confidence.

           Units of the Prosecutor’s Office are created and function according to the administrative and territorial principle and their specialization.

           The Prosecutor’s Office activity is directed at comprehensive consolidation of the rule of law and keeping law and order. Its task is to protect various public and personal values by preventing any offence. While fighting crime the Prosecutor’s Office also defends the foundations of our state and society: democratic order, sovereignty,  independence, humanity, law and order and so on.  

           In accordance with the Constitution of Ukraine the Prosecutor’s Office is entrusted with the following functions:

  1) supervision of the observance of laws by agencies conducting  detective and search activity, inquiry and preliminary investigation;

  2) supervision of the observance of laws while executing court decisions on criminal cases and applying other enforcement measures as for the restriction of personal liberty of citizens;

  3) upholding prosecution in court on behalf of the state ;

  4)representation of the interests of the State and its citizen in cases fixed by the law.

5) supervision of the observance of personal rights and freedoms, observance of laws relating to these problems by executive bodies their officials and office workers

    Activity of the Prosecutor’s Office of Ukraine is based on principles of unanimity and centralization, independence, publicity, equal defense of  rights and freedoms of citizens, priority of rights of an individual, legality and the rule of law.

 

The Nature of Civil Law

Civil Law, is a term applied to a legal tradition originating in ancient Rome and to the contemporary legal systems based on this tradition. Modern civil law systems, which were originally developed in Western European countries, have spread throughout the world. Civil law is typically contrasted with common law, a system that evolved in medieval England and that is the basis of law in most of the United Kingdom, Canada, and the United States.

The term civil law also applies to all legal proceedings (whether taking place in a civil law or a common law system) that are not criminal in nature. Under this definition laws regulating marriage, contracts, and payment for personal injury are examples of civil law.

The most obvious feature of a civil law system is the presence of a written code of law. The code is a systematic and comprehensive accumulation of legal rules and principles.

The civil law tradition traces its origin to the Roman Republic. The early custom and laws of Rome were put in writing for the first time in 451 and 450 bc, when they were inscribed on 12 bronze tablets. The principles contained within these Twelve Tables constituted the basis for all Roman civil law.

In compiling the Corpus Juris Civilis, Justinian sought to rescue the Roman legal system from years of deterioration and to restore it to its former glory. The vast quantity of material written on the civil law convinced him that the code should eliminate error, resolve conflicts.

The rise of nationalism that began in the 18th century led to the adoption of distinct civil codes for each European country, of which the French Code Napoléon of 1804 is the most famous. In the early 1900s Switzerland and Germany adopted similar codes. The subject matter of all these codes is almost identical with the first three books of the Corpus Juris Civilis.

The civil law tradition makes a sharp distinction between private and public law. Private law is the law that governs relations between private citizens and private

businesses. When applied to financial and commercial transactions, it is known as commercial law. All other private law is known as civil law or labour law. Civil law refers to the law of persons, family law, marital property law, property law, contract law and tort law. Labour law regulates the relations of employers and their employees.

In general, public law regulates the relations between organs of the government and between the government and private citizens. Public law consists of matters that concern the government: constitutional law, criminal law, and administrative law, it also includes taxation and business licensing. In many countries with civil law systems, two sets of courts exist—those that hear public law cases and those that address matters of private law.

CIVIL PROCEDURE LAW

Procedural law, commonly contrasted with substantive law, is the body of rules governing the court proceedings and the methods of enforcing rights and providing redress of wrongs. Civil procedure involves the principles surrounding the resolution of civil disputes in the courts and the various tools available to the lawyer who must defend or bring a lawsuit. It comprises rules related to jurisdiction, pleading, evidence, appeal, and execution of judgments, representation, costs and other matters. So the purpose of the civil procedure rules is to provide just and effective means by which persons can resolve their disputes.

The Anglo-American judicial system is based on the adversary model that influences the development of particular procedures. As a passive adjudicator of disputes, courts do nothing, neither initiate nor encourage litigation, until one of the parties has called on it through appropriate procedures. The parties control and shape the litigation while the judge sits solely to rule on disputed questions, as presented by the parties, and to apply sanctions properly requested by a party. Issues that have not been raised and objections that have not been made are commonly waived. The case moves forward only in the response to the demands of the parties and the litigants bear the ultimate responsibility for the case.

Procedural rules create the process that is used to decide the merits of a dispute. At the beginning of the process, these rules explain what a plaintiff must do to start a lawsuit and how a legal claim against a defendant can be asserted. Defendants are similarly told how to raise defences and claims once they have been notified of suit. Procedural rules determine what documents must be prepared, what each of them must contain, and how they should be presented to the court and the defendant. Once the lawsuit has been initiated, procedures govern how the parties discover relevant information and evidence, especially when it is in the possession of one's opponent. Rules also govern the conduct of a trial, enforcement procedures, the conduct of appeals, and the imposition of sanctions on rule violators.

There are several procedural stages but before other issues first of all questions about jurisdiction should be resolved that means to choose a court, which has the authority to determine the merits of a dispute and to grant relief. A court has jurisdiction when it has this power both over the subject-matter of the case and over the persons of the plaintiff and defendant or the property that is in dispute. The main types of jurisdiction are: in personam jurisdiction which permits a court to enter a judgment that is personally binding on the defendant (the court has power over the person, therefore judgment will have full faith and credit in all other states and can be easily enforced) and in rem jurisdiction which permits a court to adjudicate the rights of all claimants to a specific piece of property (the court has jurisdiction over property of the other party, thus a judgment can be entered effecting that property and be binding against the defendant even if the defendant is not in the jurisdiction of the court).

NOTARY BODIES OF UKRAINE

Notes: draughtsman (=draftsman)  автор документа, законопроекту 

           shorthand (writer)                стенографіст

           draught (draft ) of will        проект заповіту

           conveyance                           передача (майна)       

The origin of the term “notarius” traces back to the Roman law, where it meant a draughtsman, a shorthand writer, who took notes of the proceedings in the Senate or a court, prepared draughts of wills, conveyances, etc.

The role of the notary in civil law countries is much greater than in common law countries. The most typical areas of practice for civil law notaries are in property conveyance and registration, contract drafting, commercial transactions, successions and other estate related matters. They usually have no authority to appear before courts on behalf of their clients; their role is limited to drafting, authenticating, and archiving certain types of important transactional documents.

The notary service board (notariate) in Ukraine is the system of notary bodies and officials whose functions are to certify rights and facts of legal significance and to perform other notarial acts provided for by the law in order to give them legal authenticity.

Notarial acts in Ukraine are committed by the public notaries, working in the state notary offices and the record offices (archives), and private notaries. The documents drawn up by the public and private notaries have identical legal force. The only difference between them is that fees for services charged by public notaries are regulated and set by the state. Fees paid to private notaries are not regulated and are set by private notaries themselves.

The notarial acts may also be exercised by the authorized public officials of the executive committees in the local councils, consulates or diplomatic representative offices of Ukraine.

Notaries are not allowed by law to work in courts, police, and prosecutor’s office and represent people in courts or any other government offices.

Notaries of Ukraine are empowered to discharge their professional duties in strict conformity with the law and the oath of allegiance, to provide legal aid to citizens, enterprises, public organizations in realization of their rights and in the defence of their legal interests, to explain their rights and duties, to warn them about the consequences of their notarial acts. 

The public notaries are authorized to  perform the following notarial acts:

  1.  to attest contracts, wills,  transactions, deeds, marriage contracts, powers of attorney, etc;
  2.  to verify copies of documents, to authenticate  signatures, translations of documents;
  3.  to certify hereditary rights, deeds of purchase-and-sale, conveyance of property, gifts ;
  4.  to certify the fact that a citizen is alive;
  5.  to certify the fact that a citizen stays in a certain place;
  6.  to certify the identity of a citizen and the person on the photo;
  7.  to perform certain official acts, especially in commercial matters, such as protesting  notes and bills;
  8.  to prepare marine protests. 

 Every notarized document (agreement, contract, certificate) is issued on numerated, special paper form, protected by security features and is registered in the notary book which is kept after completion in regional record office for good.

European Judicial System

European Judicial System includes the following courts: European Court of Human Rights (ECHR); European Court of Justice (ECJ) or Court of Justice of the European Communities; Court of First Instance (CFI); Civil Service Tribunal; European Court of Auditors and Court of the European Free Trade Association (EFTA Court).

The Court of Justice of the European Communities sits in Luxembourg. It consists of 27 judges and 8 Advocates-General (AG) appointed for a renewable six-year term by agreement between the Member States, which select them “from persons whose independence is beyond doubt”. The decisions of the court are binding and there is no appeal against them. Advocates-General give opinions, which are not binding on ECJ, in cases where the ECJ considers that a case raises new points of law. There is no specialization of AGs by subject matter and only one AG is appointed per case.

The ECJ interprets the treaties establishing the European Community, decides upon the validity and the meaning of Community legislation, and determines whether any act or omission by the European Commission, the Council of the European Union, or any member state constitutes a breach of Community law. Its functions are constitutional, civil, administrative and arbitration.

The Court of First Instance (CFI) consisting of 27 judges only was set up in 1989. It has jurisdiction, subject to further appeal to the Court of Justice on points of law, to deal with disputes between the Commission and individuals or businesses as well administrative disputes within the institutions between the Community and its staff.

The Court of Auditors has 27 members appointed for a six-year term by agreement between the Member States after consultation with the European Parliament. It checks that revenue is received and money is spent “in a lawful and regular manner” and that the Community's financial affairs are properly managed.

Civil Service Tribunal established in 2004 has jurisdiction limited to staff cases. The parties may appeal to CFI within 2 months after the decision of the Tribunal is rendered.

European Court of Human Rights (Strasbourg Court) was established in 1959 to deal with disputes arising out of infringements of the European Convention on Human Rights (1953). The Court may hear complaints (known as petitions) by one state against another. It may also hear complaints by an individual, group or nongovernmental organization only if the applicant has first tried remedies in the national courts. The Court has power to make a final ruling, which is binding on the parties, and in some cases to award compensation. Every member state of the Convention has a judge with 6 year mandate appointed by the Assembly of the Council of Europe, but they don’t represent their state. Judges are divided into four sections, and they sit in chambers of 7 and committees of 3.

There are also courts with international jurisdiction: International Court of Justice (ICJ, the Hague court); International Labour Organization (ILO); World Trade Organization (WTO); International Criminal Court (ICC).

Important and complex relationships exist between the European and national courts of Member States. There is no hierarchy and direct jurisdictional link between the European Courts and national courts of member states: none of the European Courts (except to some extent the CFI) is available for direct litigation to private parties and none of them has an appellate role for national courts.

THE System of International Law

International Law means principles, rules, and standards that govern nations and other participants in international affairs in their relations with one another. International law is the law of the international community. No single nation can create or modify international law. No statute of one nation or treaty between two nations can create global obligations. International law is not created, developed, or abolished by the demand of one country or a small group of countries. It exists as a result of the common consent and general acceptance of many nations. Most international law consists of long-standing customs, provisions agreed to in treaties, and generally accepted principles of law recognized by nations. Some international law is also created by the rulings of international courts and organizations.

The rules of international law are generally divided into laws of peace, of war, and of neutrality. Peace is considered the normal relationship between nations. The laws of peace define the rights and duties of nations at peace with one another. Each country has a right to existence, legal equality, jurisdiction over its territory, ownership of property, and diplomatic relations with other countries. Many of the laws of peace deal with recognizing countries as members of the family of nations and recognizing new governments in old nations. War is still recognized under traditional international law. Warring states are called belligerents. The laws of war provide definite restrictions on methods of warfare. Under international law, belligerents are forbidden to move troops across neutral territory.  Neutral waters and ports must not be used for naval operations.

The purposes of international law include resolution of problems of a regional or global scope (such as environmental pollution or global warming), regulation of areas outside the control of any one nation (such as outer space or the high seas), and adoption of common rules for multinational activities (such as air transport or postal service). International law also aims to maintain peaceful international relations when possible and resolve international tensions peacefully when they develop, to prevent needless suffering during wars, and to improve the human condition during peacetime.

Enforcement of international law is often difficult because nations are sovereign powers that may put their own interests ahead of those of the international community. Enforcement may be effectively achieved through the actions of individual nations, agencies of international organizations such as the United Nations (UN), and international courts. The United Nations Security Council can authorize economic sanctions, diplomatic sanctions, or military force to maintain or restore international peace and security.

International law began as a system governing the relations among sovereign states, and states have always been the primary legal entities affected by international law. As the global system has become more complex, however, international law has come to recognize and regulate international organizations, businesses, nonprofit entities, and individuals. The emergence of international human rights law and, more recently, international criminal law reflects the fact that individuals today are direct subjects of international law in certain respects.

INTERNATIONAL and REGIONAL PROGRAMS on HUMAN RIGHTS

International human rights law is considered a post-World War II phenomenon. Although ideas of rights and liberty have existed for much of human history and protection of some human rights at international level can be traced long before World War II. But modern international conceptions of human rights were developed as a result of the monstrous violations of human rights of the Hitler era and to the necessity of creating an effective international system for the protection of human rights. The famous speech “Four Freedoms”1 made by Franklin D. Roosevelt in 1941 became the call of the nations to found the United Nations. The UN was established on 24 October 1945 by 51 countries committed to preserving peace through international cooperation and collective security. Today nearly every nation in the world belongs to this organization: membership now totals 192 countries. The United Nations has six nation organs. Five of them – the General Assembly, the Security Council, the Economic and Social Council (ECOSOC), the Trusteeship Council and the Secretariat – are based at the Headquarters in New York. The sixth, the International Court of Justice, is located in the Hague, the Netherlands. The United Nations inaugurated a human rights program, often referred to as the international Bill of Rights. It consists of the following documents, the titles of which generally describe some of the fundamental human rights: the 1948 Universal Declaration of Human Rights(UDHR); the 1966 International Covenant on Civil and Political Rights; the 1966 International Covenant on Economic, Social and Cultural Rights; the 1948 Covenant on the Prevention and Punishment of the Crime of Genocide  and etc. But the 1945 United Nations Charter is the main document which proclaimed basic principle of human rights protection as one of the principle of international law.

The Universal Declaration is the first comprehensive human rights instrument to be proclaimed by a universal international organization. It is not a treaty. The Declaration   was adopted by the UN General Assembly as a resolution having no force of law. It wasn’t signed. Its purpose is to provide “a common understanding” of the human rights and fundamental freedoms referred to in the UN Charter and to serve “as a common standard of achievement for all peoples and all nations”. The Universal Declaration proclaims two broad categories of rights: civil and political rights, on the one hand, and economic, social and cultural rights on the other. Its catalog of civil and political rights includes the right to life, liberty, and security of person; the prohibition of slavery, of torture and cruel, inhuman or degrading treatment; the right to a fair trial in both civil and criminal matters, the presumption of innocence etc. Important political rights are proclaimed in Art.21 of the declaration, including the individual’s right “to take part in the government of his|her country, directly or through freely chosen representatives”.  The Declaration then proclaims the individual’s right to work and to ”protection against unemployment”, “to rest and leisure” (Art. 24), to “a standard of living adequate for the health and well-being”(Art. 25).

Regional systems. There are several regional human rights systems of protection of human rights: in Europe, Latin America and Africa.  The Council of Europe represents one of the European organization. It is an intergovernmental regional organization, which was created as a respond to a proposal of W. Churchill by 10 European countries on 5 May 1949 in London. Nowadays the Council of Europe amounts 46 member states (2007). The main aims of the Council are to protect human rights, to work towards “greater unity between its members” through “agreements and common actions in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realization of human rights and fundamental freedoms”. Among the main important legal agreements established within the framework of the Council of Europe are: the European Convention for the Protection of Human Rights and Fundamental Freedoms (the basic instrument which member states sign simultaneously with the Statute of the Council of Europe); the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; the European Social Charter; the Convention for the Protection of National Minorities. The very important mechanism of protection of human rights was created according to the European Convention on Human Rights and Fundamental Freedoms – European Court of Human Rights.

Latin American and African  human rights norms are expressed in the Charter of the Organization of American States (OAS), the American Declaration of the Rights and Duties of Man,  the American Convention on Human Rights (1978) and in  the 1986 African Charter on Human and Peoples’ Rights. The human rights provisions of these documents  are only statements of moral principles, not specific obligations. They have no enforcement powers.

THE EUROPEAN UNION: A NEW TYPE OF INTEGRATION

 

The European Union is a family of democratic European countries committed to working together for peace and prosperity. Its population amounted to 487.297.627 people in 2007 when 27 countries became the EU Member States. The territory comes to 4.328.903 km2.

The European Union is now regarded as a supranational legal and political entity, that is, in fact, unique. It is not a State intended to replace the existing states, but it is more than any international organization, it also contains some features of federation. The Community method involves a constant balancing of national and common interests, respect for the diversity of national traditions and the forging of a separate identity. It is an advanced form of integration. Its competence extends to the economy, industry, politics, citizen’s rights and foreign policy. The Member States have set up common institutions to which they delegate some of their sovereignty so that decisions on specific matters of joint interest can be made democratically at European level. This pooling of sovereignty is also called “European integration”.

The historical roots of the European Union lie in the Second World War. The idea of European integration was conceived to prevent such killing and destruction from ever happening again. It was first proposed by the French Foreign Minister Robert Schuman in his speech on May, 9, 1950. This date, the “birthday” of what is now the European Union, is celebrated annually as the Europe Day.   

The EU was first and foremost created as an economic union. It was founded as European Economic Community. Creation and maintaining the EU’s single market has been a prominent goal of the Community, ensuring the “four freedoms”: free movements of people, goods, services and capital. Considered as a single economy the European Union is the largest in the world with a nominal gross domestic product (GDP) amounting to 31% of world economic output.

Politically the European Union is built around a common foreign and security policy. The objectives are as follows: 1) to safeguard the common values, fundamental interests and independence of the Union; 2) to strengthen the security of the Union and its Member States in all the ways; 3) to preserve peace and strengthen international security; 4) to promote international cooperation; 5) to develop and consolidate democracy and the rule of law, and the respect for human rights and fundamental freedoms. These objectives can be successfully achieved in two ways: by cooperation between the Member States in conducting their policy defining common positions and by gradually implementing common measures in the areas where the Member States share common interests.

Peace and reconciliation are central to the process of European integration. Not once since the end of the Second World War has Europe sought to impose its ideas on the rest of the world, other than by setting an example of how to solve problems by negotiation. The European Union is increasingly called upon to act as a mediator and a stabilizing force in world affairs. Almost a half century of European integration has had a profound effect on the development of the continent and the attitudes of its inhabitants. It also has changed the balance of power. All governments, regardless of political complexion, now recognize that the era of absolute national sovereignty has gone. Only by joining forces and working towards a “destiny henceforward shared” can Europe’s old nations continue to enjoy economic and social progress and maintain their influence in the world.

EUROPEAN UNION LAW

The Law of the European Union is the unique legal system which operates alongside the laws of Member States of the European Union (EU). The EU law has direct effect within the legal systems of its Member States, and overrides national law in many areas, especially in terms of economic and social policy.

The European Union is not a federal government, nor is it an intergovernmental organization. It constitutes a new legal order in international law for the mutual social and economic benefit of the Member States. It is sometimes classified as supranational law.

The European Union law has evolved gradually over the last 56 years. When the Treaty of Paris was signed in 1951, it established the European Coal and Steel Community (ECSC), and comprised just six Member States.

Five years later the European Economic Community (EC) was founded by the same six Member States, and then they signed EUROATOM (European Atomic Energy Community Treaty).

The original aim of the Community was economic integration: to create a common market, later defined as a Single Internal Market, in which there could be free movement of goods, persons, services and capital. This was to be achieved by the creation of a free trade area, where Member States agreed to remove all customs duties and quotas (restrictions on the amount of goods imported across Member States’ frontiers) between themselves, and a customs union, in which all members agreed to impose on goods coming into the area from non-member states a common level of duty (the Common Customs Tariff).

Now there are around 500 million EU citizens in 27 Member States subject to the EU law, making it one of the most encompassing modern legal systems in the world.

The sources of the EU law are:

  1.  the Treatiesprimary legislation (the Treaty on the Functioning of the European Union (Lisbon Treaty), the Treaty on the European Union MaastrichtTreaty;
  2.  secondary legislation enacted by the European Union (such as regulations and directives);
  3.  general principles, including fundamental human rights, and citizenship of the EU for every national of a Member State;
  4.  decisions of the European Court.

The EU Treaties are directly applicable in every Member State. Accession to the Community limits the power of national governments and affects national sovereignty – the power to govern. The European Union law has supremacy over, that is, overrides national law.

There are five types of legal acts the European Union uses:

• Treaties – directly applicable.

• Regulations – have general applications and are binding in their entirety on all Member States and have direct effect, meaning they automatically become law in Member States.

• Directives – are binding on Member States as to their result but do not bind individuals until they have been transposed into national law (implemented).

• Decisions of the European Court – are binding on those to whom they are addressed.

• Recommendations and opinions – have no binding force but may be persuasive, that is, have influence.

1  freedom of speech and expression, freedom of every person to worship God in his own way, freedom from want,  freedom from fear




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