Tamara Gogus,
Chief of sector for public information
access and appeals of citizens of the
Secretariat of the High Qualification
Commission of Judges of Ukraine
UDS 342.1
Statehood and Law of the independent State of Ukraine
This article highlights issues related to formation about current governmental system and process of Ukrainian independence. It also emphasizes the historical assumptions of constitutional development process in Ukraine.
The actuality of the topic is that the creation of democratic country and the development of law-based State are impossible without taking into account mistakes of the past. It is a long and complicated process that requires efforts from both as government, as well as public institutions.
Keywords: State system, system element, independence, formation principles, political map, the constitutional process.
Formation of the present State system of Ukraine
The State system is the integrated system of internally organized elements, and has unified principles, objectives and purpose of its activity. Each of the subjects of State as its system element is organically related to other elements and functioning of the system in general.
Ukraine on the path to independence
The last decade of the XX century entered History with significant geopolitical changes. Among different new political realities there was a creation of the independent Ukrainian State among other countries on post soviet space.
Prerequisites for global changes on the continent were the overcoming of a military and political confrontation between East and West, the collapse of communism regime and the re-orientation of some countries from the principles and values of Western Democracy.
As a result of these events the clearly splitted bipolar world, has began taking features of multipolar and interrelated, with increasing interference of countries and people. Closely related were processes of overcoming the crack effect between Europe and Germany, the weakening of so called Pole of strength, or Moscow with Eastern States and freedom of the will of people of the former Soviet Union. In the East has stopped its existence the military and the politic bloc of countries of the Warsaw Pact, formally the Treaty of Friendship, Co-operation, and Mutual Assistance with the Soviet Union as the world superpower.
Appearance of independent Ukraine on the political map of the world started global transformation not only in this region. The achievement of status of the sovereign Ukrainian State, by definition of American political scientist Z. Brzezinski - is one of the most sensitive geopolitical events of the XX century.
The Verkhovna Rada of Ukrainian SSR, on July 16, 1990 adopted a momentous, historic significance document - the Declaration of State Sovereignty of Ukraine. Among 385 deputies that were present that day at the session of parliament, 355 voted in favor of Declaration, 4 against, 26 absented from voting (but 18 of them appealed to the Secretariat to attach their votes "in favor").
The declaration consisted of an introduction (preamble) and ten sections:
I. Self-determination of the Ukrainian nation. II. Democracy. III. State authority.
IV. Citizenship of the Ukrainian SSR. V. Territorial sovereignty.
VI. Economic independence. VII. Environmental safety. VIII. Cultural development. IX. External and internal security. X. International Relations.
The Declaration recorded words: "The Verkhovna Rada of the Ukrainian SSR, expressing the will of the Ukrainian people, seeking to create the democratic society based on needs for comprehensive support of human rights and freedoms, respect for national rights of all peoples, taking care of the full political, economic, social and moral development of the people of Ukraine, recognizing the need to build the law-based State, with a view to adopt the sovereignty and self-government of the people of Ukraine, proclaims the sovereignty of Ukraine as a rule, independence, integrity and indivisibility of the Republic within its territory, independence and equality in its external relations." It was further noted that Ukraine as a sovereign state will develop within existing boundaries on the basis of inalienable right of Ukrainian nation to self-determination.
Any violent actions against the National Statehood of Ukraine from any from political parties, public organizations or individuals are prosecuted. As the Declaration emphasizes - "Citizens of all nationalities", constitute the people of Ukraine." The people of Ukraine are the only source of power [2, p. 21-23].
The Ukrainian State "ensures equality before the law for all citizens of the Republic, regardless of origin, social and property status, race, ethnicity, sex, education, language, political opinions, religious beliefs, type of occupation, place of residence and other circumstances." Ukraine is independent in resolving of any issues of public life, the State power is performed on the basis of division into legislative, executive and judicial powers; with highest supervision over the strict and uniform enforcement of laws in the country by General Prosecutor.
The territorial integrity of Ukraine within its existing borders is inviolable and cannot be changed or used without consent. Therefore, the result of so-called referendum in the Crimea is negligible, since it contrary to the Constitution and laws of Ukraine.
National wealth of the country is possessed, used and disposed only by the people of Ukraine. Ukraine individually stipulates the order of nature protection and using of natural resources; can prohibit the construction and operation of any enterprises, institutions and other objects, causing a threat to environmental safety.
Ukraine "is independent in matters of science, education, cultural and moral development of the Ukrainian Nation and guarantees the right of free cultural development for all nationalities living on the territory of the Republic, [2, p. 23-24].
Despite the adoption of the Declaration of State Sovereignty, Ukraine continued to remain in the USSR, although this time it was acting more independently and bolder, without regards to the Moscow. For a short period of time (from summer 1990 till summer 1991) the Verkhovna Rada of Ukrainian SSR adopted 40 laws and 68 resolutions, on various aspects of economic policy. Among them, the law on economic independence of Ukraine (August 1990) and the Resolution (November 1990) "On the draft concept and program of transition of Ukrainian SSR to the market economy", other acts. The law on economic independence determined the content, purpose and the basic principles of the economic independence of Ukraine as a sovereign State, the mechanism of economic regulation of the economy and social sphere, fiscal, monetary and credit systems. In 1991 Ukraine initiated the reform of prices. However, from January 1, 1991 the effect of new procurement and wholesale prices caused critical situation for many industries, since new prices for most consumer goods exceeded the current retail prices. This led to the breakdown of self-supporting relationships within sales sector and, as a consequence to empty store shelves. The new fixed, adjustable and free retail State prices were introduced only on 2 April. This step appeared to be very unpopular among the population. On the 1 of November the government was forced to saturate the market with goods, at the same time setting rules for sale of food and non-food items using consumer cards with coupons [4, p.151]. A new stage of general democratic revolution during which legally was abolished the communist system, ceased to exist "indestructible" Union of SSR. An unreversible process of sovereignty of republics have began, this Gorbachev with bitter irony called "the parade of sovereignties". Yet, it was not a parade, but a natural people movement towards the freedom, a desire to create their own sovereign States [4, p.152].
An extraordinary session of the Verkhovna Rada of Ukraine, on 24 August 1991 considered the extremely important for people problem regarding the political situation in the country and measures to be taken for prevention of a possibility of repeat of such actions in future. The session adopted the historical document – the Declaration of the Independence of Ukraine, which stated: "In view of the mortal danger surrounding Ukraine in connection with the State coup in the USSR on 19 August, 1991.
- Continuing the thousand-year tradition of State development in Ukraine,
- Proceeding from the right of a nation to self-determination in accordance with the Charter of the United Nations and other international legal documents,
- Through the Declaration of the State Sovereignty of Ukraine, the Verkhovna Rada of the Ukrainian Soviet Socialist Republic solemnly proclaims the independence of Ukraine and the creation of the independent Ukrainian State - Ukraine.
The territory of Ukraine is indivisible and inviolable. From this day forward only the Constitution and laws of Ukraine are valid on the territory of Ukraine
This act becomes effective from the moment of its approval."[14, p.14-15].
Declaration of Independence of Ukraine, the day of its adoption, was soon declared as the National holiday, it was not just a random phenomenon, which was inspired by the August putsch. The desire of national sovereignty has been tested for centuries. The right to self-determination is the right of the people to determine their own dole. The declaration of the Independence of Ukraine has been accepted by Ukrainian people, as continuing of a thousand-year tradition of creating State in Ukraine, taking into account the natural right to self-determination. So, this phenomenon is not a result of work of political parties or politicians, but the objective need and process of human development in modern era. [21, p.9]
Aiming the establishment of universal values and social benefits, in particular principles of human freedom, humanism, social justice, equality of all nations and ethnic groups, taking into account, that more than 100 nationalities inhabit the territory of Ukraine, who together with Ukrainians constitutes the 52 million Ukrainian Nation, Verkhovna Rada, on 1 November 1991, adopted the "Declaration of the Rights of Nationalities in Ukraine" [14, p.16-17].
The important task for a young State was the creation of national armed forces, as the guarantee of the protection of State sovereignty, territorial integrity and sovereignty of the country. Any Nation could not exist without reliable and secure armed forces.
In order to ensure the economic sovereignty, entry into the world economy, proper conditions for free intellectual work, and welfare of citizens, the Ukrainian State began the transition to the market economy and determined the equality of all forms of ownership.
Historical backgrounds of the constitutional process in Ukraine
The idea of constitutionalism in Ukraine has long historical roots. It dates back to the Kievan Rus period, when the Chamber concluded agreements between the Prince and the people, as well as between the Prince and his forces, this fact is reflected in different editions of "Ruska Pravda".
Later, a special role in the formation of constitutional ideas played constitutional documents which were signed by Pylyp Orlyk in 1710. For historical reasons it did not consider Ukraine, as a fully independent State, but back for that time it has introduced a number of democratic institutions.
During 1846-1847 G. Andruzsky, the member of Cyril and Methodius Brotherhood has developed "the draft of the Constitution of the Republic." The more detailed draft of the Constitution, entitled "Project of statute of the Ukrainian society "Free Union" - "Vilna Spilka" was developed in 1884, by the outstanding Ukrainian scientist and politic M. Dragomanov. According to his opinion, the Russian Empire had to be transformed into a decentralized federal State, likewise the United States of America or Switzerland.
In September 1905, more radical draft of Constitution was published in first issue of the Ukrainian People's Party magazine "Independent Ukraine", entitled "Basic Law" of Independent Ukraine" of the Union of Ukrainian people." This project has already provided the complete independence of Ukraine.
The following issues of constitutional development of Ukraine, the idea of national and territorial decentralization of the Russian Empire, raised by M. Hrushevsky in his article "Constitutional issues and Ukrainian national movement in Russia," published in May 1905.
However, despite the importance of these constitutional projects, scientific and research works, it can hardly be argued, that at that time the independent constitutional process in Ukraine has been started. Such a process should have the appropriate socio-economic and political backgrounds, the proper regulatory framework, etc. Considering history, the presence of proper ideological backgrounds, could only be mentioned, desirous further of creating and developing of the real constitutional process in Ukraine [5, p.261-262].
Democratically oriented constitutional process (which is, essential features of Ukrainian Constitutions drafts within the system of Russian autocracy rule) could not be a political reality in the full sense, until this system existed. All these political and ideological activities were very important in terms of preparing the starting position for introduction of democratic Constitution of free Ukraine.
The beginning of real constitutional process in Ukraine is linked with overthrow of the autocracy regime and the formation of the Central Rada in early March 1917.
Continuing the constitutional process in fundamentally new realities, we shouldn't be just critical for negative ideological distortion of democratic constitutionality, which took place during the Soviet era, but also consider the most important during the revolutionary period is how to find ways for economic, political, social and moral liberation, deep theoretical researches on harmonization of social, national and religious interests, that at one time had been falsified, removed from the scientific and practical politics spheres. Thus, now historical documents, which began the constitutional process in Ukraine, since the overthrow of the autocracy, should be impartially analyzed.
The basis of Ukrainian Statehood consist from the Universals of the Central Rada of Ukraine, the I Universal was declared on June 23, 1917. It was considered as a "statute of Ukrainian autonomy" carried out by the principle that: "Ukrainian Assembly (Sejm) should conduct Ukrainian affairs, as well as Russian affairs should be governed by the Central Russian Government." However, these democratic ideas were rejected by the Provisional Government of Russia, and then the Central Rada of Ukraine appealed to the public calling for establishment of a new life format and promised to accept new laws [5, p.270].
For that time the great importance had the Declaration of the General Secretariat of the Central Rada as of 27 June 1917, namely the declaration of the first Ukrainian Government. Its main task was in transformation of moral authority of Central Rada, to the field of public law with clear determination of authority of each Secretariat (Ministry) with their relevance to certain sector of economy management.
For that time, as it was noted in the Declaration, the main task of the Central Rada was the unification of Ukrainian democracy on the basis of national and political aspirations. However, the economic and social situation in the country demanded an appropriate management action, and it was done by the General Secretariat of the Central Rada.
So, the Central Rada turned to the legislature authority and the General Secretariat to the central body of executive power.
The milestone in the development of the constitutional process was the adoption on July 3, 1917 of the II Universal of the Central Rada, regarded as compromise with the Russian Provisional Government. According to it, the Central Rada was reinforced with representatives of other nationalities inhabited in Ukraine. In addition, it was noted that "moving forwards the autonomous of Ukraine, Central Rada, in agreement with national minorities of Ukraine is preparing the draft legislation on the autonomous of Ukraine for its further approval by the Constituent Assembly." Essential pieces of legislation, that characterize the constitutional process in Ukraine at that time, are "The bases of the temporary governance in Ukraine" and "Temporary Instruction for the General Secretariat of the Provisional Government in Ukraine". These documents defined the basic issues of structural design organization and functioning of the General Secretariat as the supreme government authority of Ukraine.
Historical events of the second half of 1917 have led Ukraine to the Independence. The important political and legal step on this path became the announcement on 20 November 1917 of the III Universal of Central Rada, proclaiming to develop relations with Russia on a federal basis [5, p.272].
The IV Universal proclaimed a number of other important provisions regarding the State system of Ukraine, including:
- prompt peace treaty with the Soviet Government of the Council of People's Commissars in Petrograd;
- establishment of the true power of people by the Ukrainian Constituent Assembly;
- conduct of reelection of local councils and city councils, so after returning home, soldiers could participate in elections like everyone else;
- transfer of land to working people without buyouts;
- establishment of civil and people's control over banks activity;
- beginning of determined struggle against all counter-revolutionary forces.
Apparently, all these provisions were democratic oriented and further reflected in the Constitution of the Ukrainian People Republic in 1918, it besides contained such a subtitle "The Statute of the political system, the rights and liberties of the UPR." The above shows how gradually, preferring peaceful means of State development, the Central Rada was trying to establish true democratic system in Ukraine. That was reflected in the Constitution of the UNR of 1918; however, it never came into force, since at the day of its adoption Kiev was occupied by German forces. The German occupation started covered with colors of Ukrainian Hetmanate of P. Skoropadskiy.
During the Hetmanate period, the special importance receives "The Letter to all Ukrainian people", as of 29 April 1918, which restored the old order and cancelled all acts that have been adopted by the Central Rada, including the Constitution, stipulated private property rights, as the foundation of culture and civilization, declared the total freedom of a trade, and wide opportunities for private enterprise initiatives. At the same day, the constitutive legal act called "Laws of the temporary government system of Ukraine" was accepted, which regulated matters "of the Hetmanate power", "on religion", "the rights and duties of the Ukrainian Cossacks and citizens." The special section I has emphasized the special legal status of this act. It was also concerning "the Council of Ministers and Proministers", "the Financial Rada", "the General Court." Therefore, this document had features of constitutional act, such as it arouse most principal issues of the organization of the Ukrainian Hetmanate State [5, p.273-274]. In accordance with the Law, all State power was concentrated in hands of the Hetman:
He approved the laws, that have been developed in the Ministries and passed him through the Council of Ministers;
- was the supreme authority in the State governance;
- appointed the chairman and other members of the Council of Ministers;
- was the "supreme commander of Ukrainian Army and Navy";
- had the powers of pardon.
The force of a constitutional law has been also adopted by the Council of Ministers and approved by P.Skoropadskyi. "The Temporary Law on the supreme government in the event of death, serious illness and absence of the glorious Hetman of all the Ukraine." According to stipulated matters the governance of the State transmitted to three of supreme rulers, where the first was defined by Hetman himself, second by the State Senate, and third by the Council of Ministers.
Characteristics of constitutional processes in Ukraine would be incomplete without mentioning legal acts adopted in the West Ukrainian People's Republic. Among them, the Statute of the National Ukrainian Rada on 18 October 1918 in Lviv has been adopted, the Proclamation of Ukrainian National Rada of October 19, 1918, Proclamation Ukrainian National Rada of 1 November 1918, the Provisional Basic Law on the State independence of the Ukrainian lands of the former Austro-Hungarian monarchy adopted by the Ukrainian National Rada on 13 November 1918, the Law on separation of the Ukrainian Rada of 4 January 1919, as well as the Universal of the Directory of the Ukrainian People`s Republic of 22 January 1919, in which in response to the appeal of the West Ukrainian National Rada "the union of the West Ukrainian People's Republic with the Dnieper People's Republic in a one sovereign People's Republic" has been proclaimed. As it was stated in the Universal, "dreams of the best sons who lived and who died for Ukraine have become true. From now forwards, the united Independent Ukrainian People's Republic exists "[16, p. 10-12].
The special attention attracts "the pre-agreement", concluded on 1 December 1918 in Fastiv between the Ukrainian People's Republic and the West Ukrainian People's Republic concerning further connection of both Ukrainian States into one [5 p.276]. It noted that ZUNR "thus showing strong intent to join in the shortest terms into one large State together with the Ukrainian People's Republic." The same was declared by UNR in this Act, recognizing ZUNR as a territorial autonomy, with further board’s determination by joint commission. The agreement had to be ratified by relevant authorities of both countries.
The fall of the Directory in early 1919 and creation of so-called second Ukrainian Soviet Government in Ukraine, started the beginning of the new stage in development of constitutional process [16, p.13].
Better part of rules and regulations of the Soviet Constitution of Ukraine, which was adopted in March 1919 was simply repeating the Constitution of the Russian Federation of 1918, developing the State foundation proclaimed in the beginning of January 1919, the Manifest of the Workers 'and Peasants' Provisional Government of Ukraine. During the Soviet era in scientific studies, which dealt with the Constitution of SSR in 1919, as a rule, only one feature, namely, it widely stated (Article 2) tasks of dictatorship of the proletariat in perspective, its development design features. Mentioning that the dictatorship of the proletariat won't exist permanent, as after the suppression of exploiting classes its existence becomes needless.
Very often it is referred to after the announcement of the nationwide idea at the 22nd Congress of the Communist Party of the Soviet Union. Constitution incorporated all major communist ideological clichés. The task for building of a sovereign State wasn't even set. On the contrary in Article 4, it was noted that the Ukrainian SSR "expresses its full solidarity with the existing Soviet republics, and its decision to join them in a close political association for the common struggle for the victory of the world communist revolution." The creation of the Union of Soviet Republics in 1922 and the following adoption of the Constitution of the USSR in 1924, necessitated amendments to the Constitution of USSR of 1919 mainly related to the distribution of competence.
In December 1936, particularly during the height of Stalin's repressions, the new Constitution of the USSR, which was immediately described as the most democratic in the world, has been accepted. In fact, it was intended to disguise a "great terror" that Stalin and his assistants carried out in the Soviet Union and from which, perhaps Ukraine suffered more than other regions. No wonder when N. Khrushchev who headed the Communist Party (b), proudly said that it "had been cleaned to a shine." The Constitution of the Ukrainian SSR adopted in 1937 on the basis of the Constitution of the USSR just repeat its main provisions. The only difference was only in minimized powers of national authorities, reduced number of Republican Commissariats, which theoretically should establish governance at the national level. As for public administration authorities, who had a republican status, their role was limited to a transfer authority only [1, p.115].
The need of a new union and republican constitutions was socially conditioned. The elimination of Stalin's personality cult, as well as some expansion in the late 50-s powers of republics of the Union, the recognition that the Soviet Union with the dictatorship of the proletariat has become the nationwide State, some of those steps associated with the development of democratic institutions, the appearance of opposition movements, whose members were spotted by an official press as dissidents-all this demanded certain progressive steps. Although after the removal of Khrushchev's leadership in 1964 there were some attempts to return to an old, but this could not be done openly anymore. Instead, it was necessary to follow the path of democratic development of the country, at the same time braking process in interests of the ruling bureaucracy. Under such conditions, the new stage in development of constitutional process in Ukraine has begun. It was completely oriented on rules and regulations of the Constitution of the USSR of 1977.
Years have passed, since the adoption in 1978 of the Constitution of Ukraine, showed that it did not cause much changes in the political and public life of the Republic. Yet, it should be noted that the adoption of this Constitution in certain degree, have contributed an appearance of general trend towards democratization of public life, what in turn eventually increased general political activity of the Ukrainian people in the effort to independence, a truly democratic and social State development [5, p.281-284].
The adoption of the Constitution of 1996 is a historical event in the life of Ukraine
On 28 June 1996, the Verkhovna Rada of Ukraine in the result of long, intense and multifaceted constitutional process, has adopted the new Constitution of Ukraine, this significant historic event in the life of the Ukrainians and the Ukrainian State, it takes central place in the modern history of Ukraine [19, p.110-126]. This coincided with the fifth anniversary of Ukraine's independence and marked the completion of an important stage in development of our State and society, in the establishment of national system of law, creation of legal frameworks of sovereign and independent Ukraine. New Constitution considered the achievements of domestic and global constitutional scientific approaches and practices of constitutional development. It became a realization of national idea, reflected in a mentality of people evidenced of ability of Ukrainian nation, as a political and ethnic community to create the State and law-making; the program of further development of Ukraine in political, economic, social and cultural formats; the document for Ukraine's entry into the European and World community as an equal member.
New Constitution of Ukraine is qualitatively new political and legal act by its content and form. It involves a much wider range of public relations, comparing with the previous Constitution in political, economic, social, cultural and other spheres, consolidated a new status of individuals on human and citizen, of a state and society, public authorities and local governments. New Constitution is the Basic Law and the act of higher legal force, which leads to the adoption of laws and other legal acts on the basis of Constitution and in full compliance with it. However, the norms of the Constitution of Ukraine are the norms of direct effect. It means, that citizens are guaranteed the right to appeal a court for protection of their constitutional rights and freedoms, directly under the Constitution. Now the main task for State authorities and local self-governments, society as a whole and each individual and citizen is to ensure the fast, full and accurate provision of the Constitution, its realization and implementation. The constitution should contribute primarily to ensure human rights, freedoms and decent living conditions, strengthening of civil harmony in Ukraine, development and strengthening of democratic, social and law-based State, as well as the development and functioning of the society and State [12, p.5-7].
The Constitution of Ukraine contains 15 sections and 161 articles. It proclaims the Ukraine, as a sovereign and independent, democratic, social, law-based State, where the human being, its life, health, honour and dignity are inviolable and secure and recognized as the highest social value. The carrier of sovereignty and the only source of power are the people of Ukraine. The Constitution recognizes principles of separation of powers and the rule of law.
The Constitution recognizes the equality of different forms of ownership, such as private. The defense of Ukraine and the protection of its sovereignty, territorial indivisibility and inviolability are entrusted to the Armed Forces of Ukraine.
The essential attention in Constitution is paid to characteristics of State authorities system and local self-government with such elements like Verkhovna Rada, President, Cabinet of Ministers and other executive authorities, prosecutor, legal system, State local self-government authorities, the Constitutional Court of Ukraine [10].
Thus, the new Constitution has played an important role in the development of Ukrainian legal state. Its legalization became the impulse for a further development of democracy and parliamentary.
Judicial system of Ukraine
Judicial system is a complex of interconnected and coordinated legal tools designed for regulation of public and legal relations that occur, as a result of this regulation (law, legal principles, sense of justice, legal relations, legal institutions, legal technology, legal culture, legality and its deformation, the rule of law, etc.).
Civil law
Reformation of the economic system primarily provides by regulations of the civil law. The laws of Ukraine "Companies Law" dated 19 September 1991. "Law of Obligations" on 2 October 1992, "On Bankruptcy" on 14 October 1992, "On Auditing Activities" dated 22 April 1993, "Intellectual property law and Related Rights " on 4 February 1994, others.
On 11 July 1995, Verkhovna Rada has made significant amendments to Article 71 of the Civil Code, which specifies the general limitation period. According to the new edition the limitation period consists 3 years, regardless of who applies: physical or legal person.
In 1993, the Air Transportation Code of Ukraine was accepted, which contains together with other industry standards a number of civil law norms [20, p.374].
An important area of civil regulation became the legal support of privatization process in Ukraine. Privatization law norms contain the following laws of Ukraine "On privatization of small State-owned enterprises (small privatization)" on 15 May 1996, "On peculiarities of privatization in the agricultural sector" on 10 July 1996, "On the list of State-owned property not subject to privatization" on 7 July 1999, "On peculiarities of privatization of enterprises belonging to the Ministry of Defense of Ukraine" dated 18 May 2000, "On the State Privatization Program for 2000-2002 "on 18 May 2000, others.
New Civil Code of Ukraine was developed intensively, it's draft was submitted in December 1996. Its improvement continued for five years. In June 2001, the Parliament of Ukraine has adopted in the third reading, three books of the Civil Code of Ukraine: "the general part", "moral rights of an individual", "the right of ownership and other property rights." In September 2001, Verkhovna Rada adopted the last two books of the Code "Intellectual Property Law" and "Contract Law". However, given the need for a detailed reconciliation of legal rules, the President sent these acts for revision. On 16 January 2003, the new Civil Code has been adopted. [8, p 382-383].
Adopting the Civil Code of Ukraine was an important step towards the integration to the continental legal system. The scope of legal regulations of civil relations greatly expanded and provided reasons to call this collection of documents, as the Code of civil society. Fundamental changes affected first defining principles that consist in the new Civil Code base. It is based on such principles of civil law as: fairness, integrity, intelligence, freedom of trade relations. The last is crucial, as it provides to a person the right to conduct any agreement, even if this is not described in the law, and it does not contradict it.
In the third book of the Civil Code, a new for the civil law of Ukraine category was justified, named the property Law. In addition to property rights, becomes the basis of property law, the Code provided the right to use other people things including land for agriculture and land for constructions.
Moreover, the Code settled moral rights of an individual. The following chapters 21 and 22 of the Civil Code are devoted to this law institution.
More fully and more clearly address the question of joint ownership. For the first time at the level of the law, it was introduced the institution of concurrent estate, where not only the list of possible subjects of concurrent estate, but also the relationship and liability have been clearly defined. For the first time, the national law provided the right of ownership on a person who have found the thing, and the right of a person who found the lost thing, rewards up to 20% of the cost of a thing.
The Code has settled more detail the moral rights of an individual. The Civil Code devoted two chapters to this institution of civil law. A lot of changes have been made in the inheritance order. There have been new forms of testaments established, among which stands out - the secret testament and inheritance testament.
New Civil Code expanded the range of legal heirs. The previous legislation established only two lines of inheritance by a law. With the entry into force of the new Civil Code there became five. The Civil Code came into force on 1 January 2004 [3 p.346-347].
Labor Law
The necessity of labor legislation reforms was caused by needs of market economy, as well as different forms of ownership appearance. New conditions of labor relations development caused the need to strengthen the legislative regulation of occupational health and safety, struggle against unemployment and social security. Facing these issues, Verkhovna Rada adopted a number of laws, among them: "On Labor Protection" dated 14 October 1992, "On basic principles of social protection of labor veterans and other elderly citizens" on 16 December 1993, "On compulsory State social insurance against industrial accidents on enterprises and occupational diseases that caused disability" on 23 September 1999. The Law of Ukraine, as of 7 March 2002 has approved the State employment program for 2001-2004.
Various topical issues of employment and social protection of workers are settled in the following laws "On wages" on 25 March 1995, "On vacation" on 15 November 1996, "On the procedure for settlement of labor disputes" on 3 March 1998.
Further development received a collective bargaining (the Law of Ukraine "On Collective bargaining and agreements" on 1 July 1993). The Cabinet of Ministers of Ukraine on March 1993 and on March 1994 accepted acts that settled a contract of employment. An important area of the Labor Law reform is to bring it into line with international standards. Verkhovna Rada has ratified more than 50 conventions of the International Labour Organization, the specialized UN body for labor issues [7, p.385-386].
Constitutional law
Provisions of constitutional law have been reflected in a various external forms, which are usually referred as sources of constitutional law. In modern constitutional law science they identify two main areas of the sources of constitutional law: natural law and positive law.
Natural law reflects the universal ideas of freedom, justice, and inalienability of human rights. It is particularly essential to the constitutional right of Ukraine, as it supposed to protect human freedom and serve as democracy criterion for the legal system of Ukraine.
After the World War II, the requirements of natural law found reflection in many international legal documents, that confirms international standards of human rights and are obligatory for the member States of the world community. The Constitution of Ukraine is also confirming all important natural rights (right to life, inviolability of person, right of territorial communities for the local self-government, etc) [13, p.116].
This indicates that instructions of natural law are getting clear legal frameworks and positive law merges largely with the natural law. At the same time, the role of natural law is the guarantee of the irreversibility of the process of formation of democratic, social and legal State. The consciousness of natural law, as a source of constitutional law its understanding, as the highest imperative for all branches of power, prevents in the Constitution and laws of Ukraine changes, such as elimination of the constitutional order, the restoration of totalitarianism in Ukraine.
The sources of positive constitutional law of Ukraine are classified according their legal effect. These include:
- Constitution of Ukraine, as the main source of constitutional law, which establishes the most important rules and principles, the basis for different forms of detailed legal regulation. Some provisions of the Constitution of Ukraine in accordance with Article 8 (h. 3) are directly applicable and do not require additional regulations for application;
- laws of Ukraine, having the largest legal effect, after Constitution of Ukraine, approved by the Verkhovna Rada of Ukraine, or by a nationwide referendum are the most popular sources of constitutional law of Ukraine. Of course, we are talking only about laws consisting constitutional and legal norms, such as laws of Ukraine "On Refugees", "On Legal Status of Foreigners", etc. In turn, according to theoretical works the laws divided by legal force into constitutional, organic (additional) and ordinary, but the Constitution of Ukraine does not establish clear criteria for such classification;
- other normative acts containing the constitutional and legal provisions and approved by the Verkhovna Rada of Ukraine, or by a nationwide referendum, such as the Declaration of State Sovereignty of Ukraine (16 July 1990), which established the general principles of the constitutional and legal development of Ukraine;
- normative acts of the President of Ukraine, containing the constitutional and legal norms, for example the Presidential Decree as of 10 June 1997 № 503/97 "On the order of the official publication of legal acts and their entry into force";
- normative and legal acts of the Cabinet of Ministers of Ukraine, containing the constitutional and legal norms, such as resolution of the Cabinet of Ministers of Ukraine, dated 26 February 1993 № 140 "On Approval of the Procedure of legalization of associations of citizens";
- decisions of the Constitutional Court of Ukraine, such as establish the constitutionality of laws and other legal acts of the Verkhovna Rada of Ukraine, acts of the President of Ukraine, acts of the Cabinet of Ministers of Ukraine, legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea, provide formal interpretation of Constitution and laws of Ukraine, for example, the decision of the Constitutional Court of Ukraine "In case of constitutional submission of the Central Election Commission concerning the official interpretation of the provisions of sections eleven and thirteen of the Article 42 of the Law of Ukraine "On the Election of People's Deputies of Ukraine" (Case of interpretation of the Law of Ukraine "On the Election of People's Deputies of Ukraine) (25 March 1998), the decision of the Constitutional Court of Ukraine on official interpretation of second and third parts of Article 84 and second and fourth parts of Article 94 of the Constitution of Ukraine (case on establishment of voting procedure and repeat examination of the laws by the Verkhovna Rada of Ukraine) (7 July 1998);
- International treaties, ratified by the Verkhovna Rada of Ukraine. Such treaties, according to first part of Article 9 of the Constitution of Ukraine, are the part of the national legislation of Ukraine;
- regulations of the former USSR and Ukrainian SSR, that are the source of the constitutional law of Ukraine based on the principle of succession or for a period, until the adoption of the relevant legal acts of Ukraine (in accordance with the Law of Ukraine "On Succession of Ukraine" dated 12 September 1991);
- acts of local self-governments. The Constitution establishes the right of local self-government within its mandate defined by law, to take decisions that are obligatory on the relevant territory (Article 144). If these decisions regulate relations in the field of constitutional law, they should recognize its sources. This includes, in particular, the statutes of the territorial communities of villages, towns and cities, as well as decisions that approved the provisions of the self-organization authorities of population.
Constitutional Treaty between the Verkhovna Rada of Ukraine and the President of Ukraine holds a special place in the system of constitutional law sources of Ukraine, in particular "On the basic principles of the organization and functioning of State and local self-government in Ukraine for the period prior to the adoption of new Constitution of Ukraine", dated 8 June 1995. According to Article 61 of the Treaty, the provisions of the Constitution of Ukraine of 1978 were acting only in part consistent with this Treaty [16, p.5-8].
Criminal Law
Development of criminal law mainly occurred by introduction of amendments and additions to the Criminal Code of Ukraine.
In March 1992, out of the Criminal Code were seized such punishments as exile and expulsion. On 17 June 1992, the Law "On Amendments and Additions to the Criminal Code, the Criminal Procedure Code, the Code of Administrative Offences and the Customs Code of Ukraine" have been approved. Changes and additions affected mainly the first section of the Special Part of the Criminal Code. In order to protect the constitutional order, territorial integrity of Ukraine and public safety, the Law of Ukraine "On strengthening the criminal penalties for certain crimes against the state" has been accepted on 24 December 1994. The criminal liability was establishes for actions aimed on violent overthrow, or change of the constitutional order, or seizure of state power, encroachments on the territorial integrity of Ukraine, riots.
The essential elements of crimes against State have been reviewed, and the application of capital punishment or the death penalty has been decreased.
Fulfilling the commitments, undertaken by Ukraine with joining the Council of Europe in March 1997, the moratorium on the suspension of execution of the death penalty from 22 February 2000, the Verkhovna Rada of Ukraine cancelled the death penalty [8, p.377].
New Criminal Code of Ukraine entered into force on 1 September 2001, it was a significant step forwards, comparing with previous legislation of Ukraine. First of all, it eliminates some disagreements with the Constitution of Ukraine.
Thus, for example, it bans criminal responsibility for the crimes for which the person has been imprisoned abroad; eliminates the differentiation of liability for crimes against property, depending on its form; canceled liability for refusing to testify against itself, as well as against family members or relatives, etc.
The Criminal Code of Ukraine has decriminalized the series of actions that previously prescribed criminal liability. Totally, criminal liability was canceled in 26 Articles of the Criminal Code of 1960. At the same time, the number of articles from the Special Part of the new Criminal Code has been increased from 318 to 339.
More broadly and comprehensively, the differentiation of criminal responsibility has been carried.
Particular attention has been paid to the regulation of responsibility for crimes committed in organized forms of complicity.
A new institute of exemption from criminal liability for the completed crime, in case of positive after-criminal behavior has been entered. For example, for the exemption from liability of members of criminal paramilitary or armed groups, it is enough to quit it and to inform the competent authorities about such a group existence.
Analyzing two Criminal Codes of 1960 and of 2001, it should be noted that the significant changes concerning the form and content of the criminal law have been made. Legislative innovations compose about a quarter of the Special Part of the Criminal Code of 2001. Only 28 Articles that consisted in the Special Part of the Criminal Code of 1960 have been remained unchangeable. With minor editing, the same number of articles entered the new code. Thus, the separate borrows consist 17%.
According to the constitutional provisions new Code received norms that regulate relations in the field of protection of social, religious and privacy rights. Under the Code fall:
- intentional groundless detention, for over a month of wages, pensions and stipends;
- encroachment on human health under the pretext of religious beliefs preaching or religious rites performing. ;
- illegal collection, storage and use of confidential information on person without his/her consent.
Criminal Code introduces new types of punishment, in particular the arrest from 1 to 6 months, community service, and restriction of freedom. The latter implies serving sentence in penitentiaries of open type without isolation from society and with the labor engagement. According to the Code a person may be sentenced for a term from 1 to 15 years. Instead of death penalty the life sentence has been established, as well it does not apply to minors or anyone over 65, including pregnant women. The use of asset forfeiture has been limited and is being used now only in heavy and especially grave crimes, as well as in the cases specified in the Special Part of the Code [3, p.341-342].
Administrative Law
Further development of administrative law occurred as through amendments and additions to the Code on Administrative Offences and current administrative law, as well as through adoption of a significant number of laws and other normative legal acts containing legal and administrative regulations.
Wide range of administrative and regulatory issues contains the Air Code of Ukraine as of 4 May 1993, the Merchant Shipping Code of 9 December 1994, the Water Code as of 6 December 1995, the Forest Code on 21 January 1992, the Natural Resources Code on 27 July 1994, laws of Ukraine "On the State Tax Service of Ukraine" dated 4 December 1990, "On militia" as of 20 December 1990, "On the State Control and Audit Service of Ukraine" dated 26 January 1993, "On the administrative supervision over persons released from prison" dated 1 December 1994", "On appeals of citizens' on 2 October 1996, "on legal Regime of the state of emergency" on 16 March 2000.
In accordance with the Decree of the President of Ukraine dated 7 July 1997, the State commission concerning administrative reform in Ukraine has been established. The objectives of the administrative reform are: the gradual transition from the sectoral, to the functional principle of construction and operation of ministries and other bodies of central executive authorities, the restructuring of the administrative and territorial structure, simplification and reduction of administrative structures, improvement of legal framework of administrative relations, implementation of effective administrative procedures [8, p.383-384].
Family Law
Family law includes new Family Code of Ukraine, adopted on 10 January 2002 and entered into force on 1 January 2004. The Code defines the concept of family, family responsibilities, the mechanism of family rights protection, other. More detailed designation received personal and property rights and responsibilities of the spouses, the origin grounds. Marriageable age for women is seventeen years old, for men is eighteen years old. It is also noted, that on request of a person who has reached the age of fourteen, by the court decision he can be given the right to marry, if it is determined that he/she acts in accordance with his/her own interests.
For the first time, the procedure and the status of the engagement have been regulated. Engaged - are the persons who have applied for the registration of marriage. The Code specifies the obligation of person, who has renounced marriage to reimburse expenses on the preparation for marriage and wedding of the other party.
The following rights have been regulated "for personal private property of the spouses", "for joint matrimonial property", "alimony obligations of spouses and parents before juvenile and adult children", "alimony obligations of children before parents", etc. The issues of orphans and children deprived of parental care, other rights and obligations of family members and relatives have been legislatively defined.
The Code provides samples of applying of Ukrainian legislation on marriage and the family to the foreign citizens and stateless persons, as well as applying of laws on marriage and family of foreign countries and the relevant international treaties to Ukrainian citizens.
New Family Code simplified procedures of divorce and adoption of children. It established the right for freedom and individuality within marriage; failure to comply with these provisions may be a ground for divorce.
For the first time in Ukraine, at the legislative level the prevention of domestic violence has been regulated. Organizational and legal framework in this field determines the law "On Prevention of Domestic Violence", accepted on 15 November 2001. To the main activities of special prevention of violence in family, the Law stipulates as: the organization of the awareness system about information on committed or planned violence, reducing victimization of the family, civil and criminal liability for domestic violence offenses, deprivation of parental rights, etc. [8. p. 389].
Developing national legislation, the Parliament of Ukraine led it into conformity as with the Constitution of Ukraine, as well as with international treaties.
Since independence in Ukraine, the legal and conducted by the State and Legal reform. Its main objectives are:
- formation of legal and normative frameworks for organization and functioning of State agencies and local self-governments, according to the Constitution of Ukraine;
- reorganization of the system of State power and local self-government on the basis of the Constitution and laws of Ukraine, establishment of the legality regime of functioning of State authorities and local self-governments, and their officials;
- effective legal support for economic, social and political reforms designed to promote and ensure constitutional rights and freedoms of citizens.
The development of the independent Ukrainian State, the creation of comprehensive legal system is a long and complicated process that requires strong efforts from both government agencies and society. [18, p.340-345].A lot of work has been done. The implementation of the economic reform has been started. Positive developments have occurred in the sphere of democracy consolidation. Ukraine became a full member of the international community. The most important step in the European vector was joining the Council of Europe.
At the same time, during the process of state and legal development, a lot of problems had occurred. There were complications in relationship between the legislative and executive branches of power. No less problematic, turned the question of the effectiveness of current legislation implementation, which significantly affected the rate of development of the law-based State. An urgent need to strengthen the control over the implementation of existing legislation by of the judicial authorities, has been perceptible.
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