Кафедра приватного права

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Austrian and Ukrainian Comparative Study of E-Justice: Towards Confidence of Judicial Rights Protection
(2019) Boscheinen-Duursma, Henriette; Khanyk-Pospolitak, Roksolana
The article is devoted to the comparative analysis of e-justice in Ukraine and Austria, in particular, the authors describe the current situation, strategy of e-justice development in Ukraine and Austria, as well as the potential risks, problems and benefits of introducing e-justice in Ukraine. The link between the goals and task of civil proceeding with e-justice was succinctly shown in this article. Also, the common elements of e-justice in Ukraine and Austria were highlighted, among them the following three elements were analysed in depth: an appeal to court with different documents, electronic evidence and consideration of the case in electronic form. Based on the comparative analysis, conclusions about what is common and different in e-justice in Ukraine and Austria and the value Ukraine should take from the experience of e-justice in Austria were drawn.
Case management у цивільному судочинстві: порівняльне дослідження законодавства Литви, Польщі й України
(2018) Ізарова, Ірина; Вебрайте, Вігіта; Флейшар, Радослав
У статті порушуються актуальні проблеми застосування принципу case management, що став новим інструментом удосконалення цивільного судочинства та забезпечення ефективного розгляду справ судом. Введений під час реформи цивільного процесу Великої Британії case management впродовж останніх двадцяти років залишається чи не найбільш топовим питанням наукових дискусій та невід’ємним елементом сучасних реформ цивільного процесуального права в різних державах Європи. Водночас він став основою для підготовки відповідної частини Європейських правил цивільного процесу ELI-Unidroit, а саме правил, що регулюють роль судді та сторін (а також їх адвокатів). Запозичення ефективних інститутів судочинства з країн різних правових систем, їх традицій здійснення правосуддя є доволі складним процесом, який, щоб досягти бажаних результатів, має відбуватися комплексно. Принципи права становлять фундамент, на якому розбудовується ціла система правил регулювання відносин, у цьому разі між судом та учасниками процесу. Отже, сукупність факторів зумовлюють та визначають особливості його втілення в конкретному національному законодавстві, які спробуємо висвітлити, зокрема, на прикладі Литви, Польщі та України. Case management відображає новий підхід до розподілу ролей суду та сторін справи, що виражається і в положеннях законодавства щодо організації та обрання порядку її розгляду, розподілу повноважень і визначення процесуальних дій сторін із підготовки до розгляду та щодо доказування у справі, встановлення процесуальних строків і дат проведення судових засідань у справі. З огляду на це проаналізовано проект закону щодо проведення попередніх нарад з організації розгляду справи, в яких зазначений підхід знайшов подальший розвиток (Польща), а також досліджено природу такого повноваження суду, як роз’яснення прав сторін, виходячи із засад case management за законодавством Литви. Визначено, які елементи case management було запроваджено в цивільне процесуальне законодавство України під час реформ, та проведено їх аналіз. Висновки, зроблені на підставі дослідження, дають змогу з’ясувати перспективи забезпечення ефективності судочинства та подальшого розвитку принципу case management у східно-європейських країнах.
The difference between newly discovered and new circumstances in the judicial review process
(2022) Bychkova, Svitlana; Fedosieieva, Tetiana; Kyrdan, Bohdan; Chubenko, Anton; Sabluk, Serhii
The purpose of the article is to compare new and newly discovered circumstances, which are taken into account by the court when reviewing judicial decisions. The subject of the study is newly discovered circumstances and new circumstances. Research methodology. The following methods are used in the course of the research: normative and dogmatic method, historical method, the method of analyses, logical method, legal and comparative method, method of summarization. Research results. The process of the establishment of the institution of review of court decisions is revealed. The concept of newly discovered circumstances and their place in the system of civil proceedings are considered. The view of the Supreme Court on the interpretation of newly discovered and new circumstances is analyzed. Comparative description of new and newly discovered circumstances is provided. Practical meaning. The differences between new and newly discovered circumstances in the process of reviewing court decisions are identified. Value / originality. The concept of new circumstances in civil proceedings is provided. It is stressed on the necessity for further study of new circumstances and the incorporation of such a list in existing legislation.
Doing Action Research on Dialogues in Ukraine
(2018) Kraus, Anne Isabel; Kyselova, Tatiana
This article analyses the experiences of Ukrainian and German researchers in using an action research approach to explore dialogue activities at the civil society level in post-2014 Ukraine. It explains why and how the classical model of action research has been modified to fit the specific conflict and research context in this case. By connecting academic researchers with practitioners as well as local Ukrainian actors with international experts from the initial stage of research design to the dissemination of findings, the action research approach has allowed the stimulation of tangible change in dialogue practice in Ukraine within the life span of the research project.
Elimination of Employment Discrimination of the Persons with Disabilities: International Standards and Ukrainian Legislation
(2017) Yatskevich, Ivan
Employment discrimination is one of the factors resulting in a high rate of the unemployed the the persons with disabilities who would like to get a job. This is not only a social problem but economic as well. The paper aims to analyze the existing international and Ukrainian legal regulations for the persons’ with disabilities employment, particularly the issues of discrimination in employment, possible positive discrimination, and the economic and social effect of an increasing number of the employed persons with disabilities.
Financial Ombudsman : Towards an Effective Customers Rights` Protection in Ukraine
(2019) Khanyk-Pospolitak, Roksolana
This article explores the prerequisites and prospects for introducing the Financial Ombudsman Office in Ukraine as an institute for alternative (extrajudicial) resolution of disputes between consumers and financial service providers. Particular attention is paid to the analysis of the draft law on the establishment of the Financial Ombudsman in Ukraine. Considering the existing mechanisms of alternative dispute resolution in Ukraine and the possibility of their application to the issues of financial services consumers’ rights protection, the historical retrospective of the establishment of the Financial Ombudsman institute in Ukraine is considered. The author analyses the legal, institutional and theoretical prerequisites for the implementation of one of the Financial Ombudsman models operating in other countries. The focus is on the analysis of the compliance of the draft law on the establishment and operation of the institute with the principles set out in Directive 2013/11 on consumer ADR. At the same time, it is stated why one or another structure of the legal regulation of the establishment and activity of the Financial Ombudsman Office in Ukraine was chosen. The author, as one of the experts involved in the drafting of the law, concludes that, despite the compliance of the draft law with the European principles of the ABC, there is, unfortunately, no prospect of its adoption as a legal basis for setting up a Financial Ombudsman Office in Ukraine at the moment and in the coming year, and analyses the causes.
Harmonization of Civil Procedure: First Steps of Ukraine to a Genuine European Area of Justice
(2016) Izarova, Iryna
The article deals with the ways of the harmonisation of civil procedure of EU and Ukraine in the light of the EU-Ukraine Association Agreement and the Deep and Comprehensive Trade Area, established from the January 1, 2016.
Implications of missing the newly introduced deadline for supplementary protection application
(2024) Novoseltsev, Illya
Based on Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) and the criteria of "a reasonable time period" defined by the practice of the European Court of Human Rights in applying Art. 6 of the Convention, this Court concludes that the patent holder applied for supplementary protection within a time frame that falls under the concept of ‘a reasonable time period’. The application of Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms by the Supreme Court in this context highlights a significant legal precedent, particularly emphasizing the principles and criteria of 'a reasonable time period" as interpreted by the ECtHR.
The institute of counter-security as a novelty of the reform of civil procedure law of Ukraine
(2020) Khanyk-Pospolitak, Roksolana; Kovalchuk, Inna; Bylytsia, Igor
The article is dedicated to investigation of counter-security as a novelty of the reform of Ukrainian civil procedure legislation. The analysis of rules of the current procedural legislation on counter-security as a novelty of the civil process in Ukraine was made in the article. The determination of features of the institute of counter-security in the mechanism of civil proceedings was given. The role of counter-security in the civil process was identified. The conclusion was drawn that through the institute of counter-security, the principle of equality of parties is ensured, which is manifested in the equal assignment of the defendant to such procedural rights which are effectively identical to the rights of the plaintiff. Therefore, the defendant was granted effective protection against the claim by virtue of the new institute. It is stated that the counter-security should be seen as a way of preventing the plaintiff's abuse of procedural rights and offsetting the potential consequences. The introduction of counter-security is a clear step forward to European standards of quality and efficiency in the administration of justice, however, by examining civil procedural law and jurisprudence, the conclusion was made that the institution is not regulated at this stage of its establishment and application.
Institute of specialized ombudsman vs dispute resolution with participation of a judge: current situation and development prospect
(2022) Khanyk-Pospolitak, Roksolana; Korotenko, Tetiana
Ukrainian institutions that would facilitate alternative dispute resolution have been in the process of establishment since Ukraine's independence in 1991. At present, only the activity of arbitration courts is regulated in Ukraine by law as an alternative way of resolving disputes. Since 2010, there have been repeated attempts to create financial ombudsman institute. The first ideas of creating business ombudsman institute date back to 2013. This type of ombudsman has been in operation since 2014 and can be considered the most successful and effective both now and in the near future. Currently in Ukraine, there are also the following types of specialized ombudsmen: insurance, energy, language and education ones. Dispute settlement with the participation of a judge was introduced in civil litigation as an alternative method of dispute resolution in 2017. This institution provides the parties of the conflict with additional opportunities for faster and more effective settlement of the dispute. At present, this institution is not very widely used in practice, but in the coming years it will become more popular. The example of the activities of specialized ombudsman institutions and dispute resolution with the participation of a judge shows that Ukraine is adopting the world's best dispute resolution practices that will contribute to a faster, more effective resolution of the conflict without trial.
Institutional preconditions for mediation reform in Ukraine
(2016) Kyselova, Tatiana
The article focuses on three factors of institutional environments and their influence on development of mediation as a dispute resolution mechanism and as an institution in Ukraine. The highly volatile political and economic environment has not allowed the mediation movement to gain full political support with the Government and the judiciary. A settlement-friendly legal framework, although providing stable foundation for mediation, decreased the urgency of adoption of the law on mediation which in turn delayed nation-wide acceptance of mediation institutions. Finally, the relatively high efficiency of Ukrainian courts coupled with their perceived corruptibility suggested a low systemic self-interest of the courts in efficiency-raising mechanisms such as mediation. These institutional preconditions have generally slowed down mediation reforms and lead Ukraine to remain on the sidelines of the global mediation movement.
Issues in the Legal Framework of Invalidity of Transactions in Ukraine
(2019) Dzera, Iryna
This essay analyzes legal nature and grounds of nullity of transactions according to the civil legislation of Ukraine and modern civil law achievements. Correlation between invalid, void and illegal transactions is set. It establishes the specifics of invalid transactions, that demarks them from other similar legal categories. The essay discloses gaps and contradictions in the legislation of Ukraine, while pointing out different approaches of the application of law by the courts when it comes to the nullity of transactions, as well as offers solutions as to its improvement. The legal nature of articles of incorporation (articles of association, except for the articles of association of a partnership) is analyzed. And issue of possibility to use provisions as to invalidity of transactions to invalidating the incorporation documents of a legal person and/or decisions of the general meeting of the partnerships is set.
Judicial System and Civil Procedure in Ukraine
(Berliner Wissenschafts-Verlag, 2008) Khanyk-Pospolitak, Roksolana
Civil Procedure Law, like the Ukrainian legal system as a whole, is very closely related to the Romano-Germanic legal family. The Civil Procedure Code developed in three stages: - Before Ukraine entered the Soviet Union; - While Ukraine was a part of the Soviet Union as one of its Republics; and - After Ukraine gained its independence.
Legal transformations of business disputes in post-Soviet Ukraine
(2011) Kyselova, Tatiana
This paper explores mobilisation of law by Ukrainian business people at the prelitigation stage of disputes, when litigation has not as yet been commenced but a legal claim has been formalised through the pretenziya - a formal letter to the delinquent party written to a special template. In Soviet times the pretenziya was by law an obligatory prerequisite before filing a claim in a commercial court (arbitrazh), but nowadays it is optional. Having analysed the spectrum of legal and extra-legal functions of pretenziya, this paper concludes that due to its adaptability, pretenziya proved capable of operating both as a token of the public order – the ‘shadow of the law’ - and as part of a private contract enforcement. Pretenziya in a voluntary form has not only survived in market-oriented economy but even opened up new avenues for the creative use of legal forms in post-Soviet business.
Mechanisms of contract enforcement and dispute resolution
(2014) Kyselova, Tatiana
The paper highlights importance of informal private enforcement of contracts for understanding the functioning of court system in post-Soviet society. It analyses the notion of contract enforcement that derives from inter-disciplinary area of new institutional economics and distinguishes the features of public and private contract-enforcement mechanisms.
Mediation in Ukraine: Challenges of Peace and War Draft: [preprint]
(2016) Kyselova, Tatiana
The 2013 civil unrest in Kyiv, annexation of Crimea to Russia and subsequent armed conflict in Eastern Ukraine have unleashed an unprecedented fusion of deeply ingrained conflicts – from a geopolitical struggle between the world super-powers to inter-ethnic tensions within the region. In 2013 Ukraine became yet another divided society on our planet. Irrespective of the outcome of the current crisis, Ukraine and the whole region is in urgent need of healing and reconciliation. Mediation, as a dispute resolution mechanism is capable of offering a path to such reconciliation; it is internationally recognized as a “highly promising instrument to broker peace that can help to disentangle the knot of interests and needs in a structured and efficient way”.1 Since the beginning of the crisis international donors and international organizations working in the area of peacebuilding offered an immediate support to mediation and dialogue initiatives at various levels of the society.
Modern anti-drug policy of Ukraine and human rights
(2023) Muzyka, Anatoliy; Gorokh, Olexiy; Muzyka, Lesya; Muzyka-Stefanchuk, Oksana; Anishchenko, Mykhailo
The topic of human rights in the aspect of relations between the state and addicted patients (and in general relations in the sphere of circulation of drugs) remains scantily explored for modern Ukraine, which actualizes further scientific research. The purpose of the article is to determine the authors’ vision of compliance with international human rights standards of the legal anti-drug prohibitions established by the state. To achieve this goal, using the historical-legal, comparative, dialectical, systemic, hermeneutic, sociological methods and legal method of cognition, national and foreign legislation was critically analyzed, international experience in implementing various models of anti-drug policy was studied, and proposals for the draft of a new Criminal Code of Ukraine were formulated. The authors pay special attention to the problems of protecting the rights of drug addicts, legal liability in the field of drug trafficking, legalization of drugs for non-medical needs and compulsory treatment of drug addicts.
Private and public finances during the Russian-Ukrainian war: costs, losses and reimbursements
(2022) Muzyka-Stefanchuk, Oksana; Muzyka, Lesya
The article is devoted to financial, material, and legislative problems in Ukraine caused by the Russian-Ukrainian war. The issues of budget expenditures, financial losses, material losses and their compensation are considered. It is emphasized that the war is an extremely costly event for any country, which has an extremely negative impact primarily on public finances. When talking about Ukraine, we can single out budget expenditures and budget, resource, and material losses. And most importantly, it is about lost human lives that have no financial measurement. Every day, Ukrainian budgets receive less planned revenues than due because of reduced tax revenues, in particular, VAT revenues (for example, in March, VAT revenues amounted to approximately 60% of the target financial performance), personal income tax, single social security tax, customs duty (currently only the western border is open; the northern, southern, and eastern borders are closed or blocked, in connection with which the export-import operations and their payments decreased), and state duty revenues, etc. This is because the purchasing power of citizens has decreased, and the purchasing needs themselves have changed significantly. It is emphasized, that the infrastructural, material, and property losses of Ukraine during the war are enormous (in the worst sense). Losses are calculated and estimated daily. Of course, the figures are still approximate. Also, as long as the war is going on, losses will increase, and after its end, there will be a question of compensation. Compensation payments will be made at the expense of the budget funds, and most of all at the expense of the funds received from the seized or confiscated property of the russian federation and its citizens. There is great doubt that the leadership of the country that started this senseless war, as well as the citizens who support and approve it, will voluntarily agree to make payments or enforce the decisions of any international courts and organizations. Therefore, we must already actively form a real financial basis and basis for compensation for damages. Here, Ukrainian politicians and government officials work closely with their foreign counterparts. After all, it is necessary to determine which property and belonging to which individuals can be transferred to the needs of Ukraine, and in what way. The fact of creating the Trust Fund for the Reconstruction of Ukraine After the War should be noted positively. Its creation was supported in March 2022 in Brussels at the summits of NATO, the Group of Seven and the EU, which discussed Russia’s war against Ukraine. The World Bank, Sweden, the Netherlands, Austria and other countries have joined the initiative to create such a fund. From May 2022, the Trust Fund is going to start its work. Economic recovery will largely depend on business recovery. However, the work of many powerful companies — large taxpayers — during martial law has been suspended indefinitely or suspended temporarily and resumed after the transfer of their technical capacities to other regions. Some businesses have lost their property complexes during air strikes and other hostilities (they are destroyed). And for them to become involved in economic recovery, they must be rebuilt first (where possible). The problems of financial and budgetary expenses for the war are considered separately. According to rough estimates, the daily budget costs of fighting cost Ukraine about USD 66 million. If we add additional funding from private funds of individuals and legal entities, the total costs increase significantly. Given the need for increasing funds, government officials are in constant talks with foreign partners, with business representatives about the possibility of obtaining additional financial assistance, new grants and loans, and more. It is noted that in difficult conditions of the war, the state needs additional funding. For this purpose, such financial instruments as borrowing — internal and external — are actively used. Ukraine is actively cooperating with the World Bank. In this context borrowings, loans and financial assistance as special financial resources are analysed. Features of public procurement in the war period are considered. Yes, there occurred problems with suppliers (because some of them remained in the occupied territories, some lost their production capacities, some lost workers, etc.), logistical problems (delay or inability to deliver goods, services), growing demand for previously less popular goods. In order to optimize procurement during the war and meet the urgent needs of the state and restore Ukrainian business, the Prozorro State Enterprise, Professional Procurement State Institution and electronic platforms (E-Tender, Zakupki.prom.ua, SmartTender, Public Procurement. Online and Tender-Online) have developed the Prozorro+ Platform.
Professional Peacemakers in Ukraine: Mediators and Dialogue Facilitators before and after 2014
(2017) Kyselova, Tatiana
A crucial benchmark in Ukraine’s recent history, the Euromaidan protests triggered many transformations across Ukrainian society. Ukrainian journalism has affected and has been affected by these changes and their challenges. Journalists’ activism emerged as one of the major features of Ukraine’s post-Euromaidan media landscape but remains understudied. Informed by the concepts of "journalism culture" and "journalism professionalism", this article explores journalists’ perceptions about their activism, the boundaries of their professionalism and their experiences confronting the activism versus professionalism dilemma. It identifies journalists’ competing approaches to the new challenges and their complicated context and discusses these approaches’ implications for the Ukrainian media and journalism.
Public service vs state service in the field of healthcare: legal and terminological issues in Ukraine and internationally
(2024) Muzyka-Stefanchuk, Oksana; Stefanchuk, Mykola; Muzyka, Lesya; Anishchenko, Mykhailo
The purpose of the Article is to substantiate the expediency of recognizing healthcare workers as state servants based on a terminological analysis of the concepts of "public service" and “state service” as well as taking into account world experience, formulating proposals for improving legislation on public service and healthcare.

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