Часопис Київського інституту інтелектуальної власності та права

USE OF THE RESULTS OF COVERT INVESTIGATIVE (DETECTIVE) ACTIONS FOR OTHER PURPOSES - THE LIMITS OF WHAT IS PERMISSIBLE

2024-08-01T10:04:33+03:00

The article examines some aspects of the mechanism introduced in the criminal procedure legislation for using the results of covert investigative (detective) actions in another criminal proceedings or for another purpose. The author emphasises that covert investigative (detective) actions in criminal procedure legislation are considered to be exceptional and may be carried out only in cases where it is impossible to obtain information in any other way, subject to certain conditions and guarantees provided for by current legislation. Based on the case law of the ECHR and national courts, the author examines the general principles, reasons and conditions for ensuring the guarantees provided for, aimed at achieving a balance between the interests of the State and human rights and freedoms. In particular, the author points out that the right of the prosecution to use the results of covert investigative (detective) actions containing information about a criminal offence which is not being investigated in the proceedings in which such covert investigative (detective) actions were conducted is provided for in Article 257 of the CPC of Ukraine and is limited by the introduced judicial control. The general rule set out in this article provides that any information not related to a criminal offence that is the subject of a pre-trial investigation in criminal proceedings in which covert investigative (detective) actions were conducted, as a result of which it was obtained, requires a prior request from the prosecutor to the investigating judge. The investigating judge is obliged, among other things, to investigate the legality of obtaining such information, the sufficiency of the grounds indicating signs of another criminal offence. It is established that this gap in the legislation is a prerequisite for abuse by investigators and prosecutors when obtaining permits for covert investigative (detective) actions, as well as for their direct conduct and use of the results as evidence in criminal proceedings. In addition, the author proposes to introduce a mechanism for controlling the storage, use and destruction of information obtained during covert actions, if it is not to be used in the interests of criminal proceedings, and to develop and implement clear criteria for the possibility of using information obtained as a result of covert actions.

THEORETICAL-LEGAL AND PRACTICAL PROBLEMS OF REPRESENTATION OF THE INTERESTS OF LEGAL ENTITIES IN THE ADMINISTRATIVE PROCEEDINGS

2024-08-01T10:07:40+03:00

The article examines the theoretical basis of determining the representation of legal entities in administrative proceedings, as well as practical problems of the implementation of this institute. It has been confirmed that representation in administrative proceedings is procedural by its legal nature, which distinguishes it from material representation and, at the same time, implies the presence of its own specific features, prerequisites for its occurrence, methods of implementation, and, accordingly, legal consequences, which determines the need for its additional studies. It has been found that procedural representation in administrative proceedings is organically connected with material representation, as it has a common legal nature with the latter, the basis of which is either established legal relations of trust between subjects (the party in the litigation and the representative) or the objective necessity of its application in the litigation. It has been proven that procedural representation is aimed at increasing the efficiency of protecting the rights and interests of legal entities, which has a positive effect on the legality of the judicial process and its compliance with the standards of administrative proceedings. The analyzed judicial practice allows us to assert that in the process of development of the legislation that regulates relations formed in the sphere of procedural representation in administrative proceedings, a unity of approaches was not formed in the documentary confirmation of the powers of the representative of legal entities as parties in an administrative dispute, which negatively affects the protection of rights and interests It was found that the above also follows from the difference between the concepts of “representation”and “self-representation” of legal entities in administrative proceedings. Conclusions were made about absence of ambiguity in the positions of the courts regarding the list of documents that confirm the authority of the representative of a legal entity, despite the legally defined provisions of the articles of the Code of Administrative Procedure of Ukraine, which in turn provokes situations of refusal to admit persons who are in an employment relationship with by legal entities to court proceedings and causes a violation of the principle of access to court, justice and rule of law.

COMPARATIVE LEGAL CHARACTERISTICS OF MEASURES OF PROTECTION AGAINST CYBERSQUATTING ESTABLISHED BY ADMINISTRATORS OF .UA AND .UKR DOMAINS

2024-08-01T10:11:03+03:00

The problem of unfair registration and use of a domain name which is identical (similar) to another protected object (a part of it) is not new. At the same time, the legislation does not pay sufficient attention to the solution of this problem. In view of this, the importance of the so-called “soft law”, which in some cases may be applied to resolve domain name disputes, has increased. In the country code top level domains of Ukraine – .UA and .УКР – there is the “.UA Domain Name Dispute Resolution Policy”(a variation of the famous “Uniform Domain Name Dispute Resolution Policy”) and the “Domain Name Dispute Resolution Procedure”, which, although not referring domain name disputes to the competence of the World Intellectual Property Organization’s Arbitration and Mediation Center, but, as well as the “.UA Domain Name Dispute Resolution Policy”, is largely based on the provisions of the “Uniform Domain Name Dispute Resolution Policy”. The implementation of the approach used in the “Uniform Domain Name Dispute Resolution Policy” in both documents explains their similarities. At the same time, it is possible to find essential differences between the “.UA Domain Name Dispute Resolution Policy” and the “Domain Name Dispute Resolution Procedure”. The purpose of the article is to provide a comparative legal characteristics of the measures of protection against cybersquatting established by the administrators of the .UA and .УКР domains. To meet the purpose, the author compares the provisions of the “.UA Domain Name Dispute Resolution Policy” approved for the .UA domain and the “Domain Name Dispute Resolution Procedure” which is in force in the .УКР domain. Also, the author pays special attention to additional restrictive measures – those not related to the resolution of domain name disputes – which were (are) in place to provide protection against cybersquatting in the country code top level domains of Ukraine.

DIGITAL PERSONAL RIGHTS: BASIS OF FORMATION AND DEVELOPMENT PERSPECTIVES

2024-08-01T10:14:00+03:00

The purpose of the article is to establish the normative basis for the formation of a system of digital rights of the individual in Ukraine, to develop author's approaches to establishing the content and criteria for building their system, to substantiate the features of the digital rights of the individual in the system of constitutional rights of the individual. It has been established that one of the results of the development of information technologies is the introduction and possibility of implementation of one of the fundamental principles of electronic governance, which is the principle of transparency in the adoption of administrative acts, publicity of the activities of powerful entities, etc. It was found that in the 21st century there was a final transition from an industrial society to an information society, which is built on the application of digital technologies, which requires research attention to establish the concept, content and system of digital rights of the individual. It was established that the following should be included among the positive characteristics of Ukrainian society: the introduction of electronic governance mechanisms, which consist in the operation of national registers, databases with the development of access mechanisms to them for the public and interested persons; introduction of a digital signature of a person, which allows to ensure electronic document flow; functioning (and quite successful) of the electronic justice system through access to the Unified State Register of Court Decisions, the Unified Judicial Information (Automated) System and other information services and resources. It was emphasized that the development of the Ukrainian state is inextricably linked with the further introduction of digital technologies into public and administrative legal relations and requires further rule-making activities to guarantee the digital rights of individuals, which, in particular, is determined by the requirements of the Association Agreement between Ukraine, on the one hand, and the European Union, by the European Atomic Energy Community and their member states, on the other hand, where it is stated that one of the areas of cooperation is the promotion of wide access, improvement of network security and wide use of information and telecommunication technologies by private individuals, businesses and administrative bodies through the development of local resources Internet and implementation of online services, including e-business, e-government, e-health and e-learning. It was concluded that the digitalization of public administration is connected with the integration of digital technologies into public legal relations, where the regulation of the digital rights of a person is of great importance. It is emphasized that the realization of digital rights of a person in Ukraine takes place on such information resources as e-Health, e-education, e-transport. It is emphasized that the appropriateness and effectiveness of the implementation of a person's digital rights directly depends on the level of their regulatory and legal support, which requires systematic, comprehensive law-making activity. It was concluded that the direction of scientific research should pursue the functional goal of ensuring the comprehensiveness and completeness of the regulation of the implementation and protection of a person's digital rights, which are connected with the establishment of the status of a physical and legal entity in its relationships both in the field of public-management relations and in the field of satisfaction property and personal non-property interests.

FUNCTIONAL PURPOSE OF PERMITTED ACTIVITY: REGULATORY AND LEGAL ASPECT

2024-08-01T10:17:57+03:00

It has been established that achieving a fair balance in the application of regulatory restrictions requires effective regulatory and legal regulation of the implementation of permitting activities in the state. The purpose of the article is to justify the functional purpose of permitting activities from the point of view of the regulatory and legal aspect of the study. It has been established that the implementation of permitting activity refers to the system of permissible and acceptable legal means of limiting the rights and interests of private individuals, which contribute to the effective settlement of socio-economic, political, moral and other issues that make up the functions of the state. The system of legal means for ensuring the realization and protection of the rights and interests of a private person generally includes such elements of the regulatory regulation mechanism as: permits, prohibitions and obligations. It was established that the implementation of permit activity must meet such requirements as: legality of restrictions; determination of the limits of the implementation of the interests of the participants in the legal relationship; guaranteeing the exercise of human rights and freedoms even in the conditions of the use of legal means of influencing legal relations. It is emphasized that the content of the permit for a business entity is that it establishes the basis for providing services, performing works and producing services. It is noted that the application of restrictions on the implementation of economic activity should pursue the goal of ensuring compliance with national security requirements. It was determined that the permit system should be understood as a special procedure for the manufacture, acquisition, storage, transportation, accounting and use of specially defined objects, materials and substances, as well as the opening and functioning of individual enterprises, workshops and laboratories for the purpose of protecting the interests of the state and the safety of citizens. It was concluded that the existence of the permit system is aimed at ensuring compliance with national security standards, which consists of various spheres and subspecies (economic, food, production, environmental, informational, etc.), which allows to achieve such a state of social relations in which the rights are respected and human freedom as the highest social value.