The History of the Ukrainian Legal System
The Ukrainian legal system is very close to the Romano-Germanic legal family. After the October Revolution of 1917 the establishment of the Soviet law in Ukraine was closely connected with the spreading of Soviet power and creation of Soviet state bodies. The peculiarity of the Soviet legal system in Ukraine was that it was based on the legal system of the Bolshevik Russia. That is, it was a reception in a very primitive form: the application of the laws of one state in the conditions of the other. As in every federal state, in the USSR the competencies were divided between the Union and the Union Republics. Foundations of legislation, codes, decrees of the Presidiums of the Supreme Councils of the USSR and Ukraine, various legal acts adopted by all-Union and Republic Ministries, including those adopted jointly with CPSU Central Committee, regulations, instructions, guiding materials, statutes, branch enactments and even the revolutionary feeling of justice were used as legal sources. Judicial practice did not belong to the legal sources. The access to the legislation was restricted. The criteria of such restriction were not defined, but in essence it was a policy of depriving people of their individual rights and liberties.
After the Declaration of Independence the need appeared to build a new state and reform the existing legal system in accordance with the state building tasks. So the main purposes stood for a new state: to reject the inappropriate dogmas of the Soviet law and establish the backgrounds and elements of market economy with its legal relationships. The promulgation of new legislation has begun with adapting relevant norms, the adoption of normative acts in the fields of relations, which had not been regulated by the current legislation, and development of the large codification embracing all areas of law. Joining the Council of Europe, Ukraine has taken obligations to improve its legislation in regard with the human rights protection, and to ensure legal and judicial reform.
Main Sources of Ukrainian Law
The Ukrainian legislative system is based on the systematically organized and concerted legal rules (norms), which are combined to constitute different legal fields.
The principal source of Ukrainian law is the Constitution of Ukraine which has the highest legal force. The norms of the Constitution of Ukraine are norms of a direct effect. Appeals to the court in defense of the constitutional rights and freedoms of the individuals and citizens are guaranteed directly on the grounds of the Constitution. The principle of the rule of law was recognized by the Constitution and became effective. Laws and other normative legal acts should be adopted on its basis and conform to it.
Normative legal acts embrace not only laws proper (zakon) but also various normative acts of competent state bodies issued on the basis of laws, in accordance with laws and for their execution. Normative legal acts in Ukraine have different legal validity depending on the law-making subject.
In accordance with the Decree of the Verkhovna Rada On the order of temporary validity of some legal acts of the former USSR on the territory of Ukraine, such documents are in force in some branches till adoption of the new legislation.
In Ukraine the right to adopt laws belongs exclusively to the competencies of the Verkhovna Rada. The right of legislative initiative in the Verkhovna Rada belongs to the President, National Deputies and the Cabinet of Ministers.
The Verkhovna Rada and other state authority bodies are entitled to issue normative acts ofthe under-law-level in questions assigned to its jurisdiction. The President of Ukraine, on the basis and for the execution of the Constitution and the laws of Ukraine, issues decrees (ukazy)and directives [di΄rektiv] (rozporiadzhennia). The Cabinet of Ministers of Ukraine, within the limits of its competence, issues resolutions (postanovy) and orders (nakazy). All the documents produced by the highest power bodies are mandatory for execution on the territory of Ukraine.
Individual ministries, state agencies and committees, in pursuance of laws of Ukraine, issue resolutions, directives and orders within the specific sphere of their competence. All these normative legal acts, normative acts of the National Bank of Ukraine and international treaties ofUkraine are registered at the Ministry of Justice of Ukraine.
Another type of law source is a normative legislation (law-making) which is a mutual agreement and contains the legal rules established by law-making subjects as a result of their multilateral agreement and supported by the state. Such agreements are very important in the spheres of civil, commercial and assets relations.
Acts which govern the observance, execution and application of legal norms (law-implementation acts) are issued by competent bodies or officials within the limits of their authority, e.g. the Office of Public Prosecutor, courts or administrative commissions.
Legal customs, ecclesiastical rules, judicial practice and the doctrine [΄doktrin] consisting of commentaries, articles, books, encyclopedias are not recognized as sources of law in Ukraine.
Legal writing in English has developed over hundreds of years and is characterised by specific features, some of which can make it difficult for the non-lawyers to understand. Characteristics of legal writing include: using Latin terms; using technical terms (“subsidiarity”); using old-fashioned words not much in general use; using pair of words with reciprocal relationship (‘lessor’/’lessee’); using legal jargon (‘without prejudice to’) including the use of pairs of words (‘terms and conditions’), or triplets (‘build, erect or construct’); having special meanings for words in ordinary use (‘the judge determined the fact of the case’), where ‘determined’ means ‘decided’; using vague words (‘provide a sufficient service’); using long sentences with little punctuation; inverting word order (‘title absolute’); using capital letters to signal important or defined terms (‘the terms of the Lease…’) avoiding personal pronouns (‘you’, ‘we’, ‘I’); the specific use of the modal verb ‘shall’ to impose an obligation or duty on someone (‘The tenant shall not sub-let the whole or part of the premises.’); the use of ‘shall’ in a directory sense (‘Notice of an appeal shall be filed within 28 days.’)
There is a movement to draft legal text in standard, modern, ‘plain’ English but any change will be slow.
Note: Some legal drafters argue that the use of ‘shall’ in a directory sense is to be avoided because of confusion. Note also the general English use of ‘shall’ to refer to future intentions (‘I shall write to him’), although this use is increasingly uncommon.
There are many legal terms in written English legal texts, although recent reforms in the English justice system have encouraged the use of English rather than Latin. Some Latin terms are used so frequently that they are in general English use (e.g. ad hoc,bona fide, pro rata, etc.). It is useful to be able to recognize their meaning and a dictionary or online glossary will help. Forms of pronunciation vary.
Branches of Law.
Branches of the Law of Ukraine
In accordance with the differentiation of public and private law the following branches are defined in the legislative system of Ukraine.
Constitutional law establishes the political and state system, rights, freedoms and duties of citizens, legal status of the Verkhovna Rada, the President, the Cabinet of Ministers, other bodies of state executive power and of local authorities, the justice system, territorial structure, state symbols, etc. The main source of constitutional law is the Constitution of Ukraine.
Civil law includes the legal rules governing the ownership and non-property relations, as well as personal relations between the objects of public relations in order to satisfy their demands. The main act in this branch is the Civil Code of Ukraine which entered in force on December 1, 2004. It contains six books and sets basically a new (for Ukraine) system of norms to govern civil relations. Taking into account new constitutional approaches to the human being and its inalienable rights it fixes individual non-property rights of a person and governs relations which enforce these rights.
Labour Law includes the legal rules collected in the Labour Code and governs the relations as to the labour contracts, working time and conditions, safety at the working place, social protection, the order of labour disputes resolution, etc.
Matrimonial law relates to the grounds of marriage, its solemnization and dissolution, personal ownership and non-property rights and duties of the spouses, relations between parents and children, adoption issues, etc. Such rules are incorporated into the Code on Family which was adopted on January 10, 2002 and came in force on January 1, 2003.
Financial lawregulates the state budget, banking, tax system, etc and its object of regulation is money and securities. The formation of financial system of Ukraine is in progress. In 2001 the Budget Code was adopted on June 21, 2001 and came in force in June, 2001.
Land law includes the legal rules governing land use and protection. Here the main source is the Land Code of Ukraine adopted on October 26, 2001, which established the private ownership of lands. The Land Code came in force on January, 1, 2002.
Administrative law is based on the legal rules on the relations between the bodies of state government, executive and command activities, corpus delicti (Eng. body of crime) of administrative offences, etc. The main source of administrative law is the Code on Administrative Infractions, which entered in force on September 9, 2005.
Criminal law includes the legal rules defining criminal acts, forms of guilt, punishment making, discharge or mitigation. The main source of criminal law is the new Criminal Code of Ukraine. The Code was adopted on April 5, 2001 and came into force from September 1, 2001. Its main novel is the replacement of the death penalty for the grave crimes by the perpetual imprisonment. It also provides for such new types of punishment as public works, arrest, deprivation of liberty, and official restrictions for persons on military service.
Correctional law includes the legal rules governing the relations resulting from the execution of punishment and penal treatment. The main source of the law is the Correctional Code which came in force on January, 1, 2004.
Law of Civil Procedure
Law of civil procedure includes the legal rules governing the procedure of the court consideration and resolving civil cases, and enforcement of writs. They are combined in the Civil Procedural Code, which entered in force on January 1, 2005.
Commercial Law regulates contractual relations and conflicts between legal entities, citizens and/or a state. Commercial Procedural Code provides that commercial court should bring an action on the basis of the business activity subject’s claim about protection of its legal rights, as well as the notices of suit from state authorities, the Office of Public Prosecutor or the Chamber of Accounting of Ukraine.
Law of Criminal Procedure
Procedural criminal law relates to the commencement of criminal proceedings, investigation and court examination of criminal cases. The Criminal Action Code regulates these issues.
International law governs relations between states (public) or between citizens of different countries and their associations (private). As Ukraine is a part to numerous multilateral and bilateral international treaties, agreements and conventions, they are included into the domestic legislation and determine international status of Ukraine.
The legislative system of Ukraine includes other specialized codes, each of them has its own inner structure and governs relations in its field.
6. Career in the Law. Kinds of Legal Profession.
THE LEGAL PROFESSION.
Barristers and Solicitors
The court system is dependent upon the legal profession to make it work. Although individuals can institute cases and defend them normally lawyers do this job for them. The legal profession is the normal source of judicial personnel for any court system.
England is almost unique in having two different kinds of lawyers, with separate jobs in the legal system. The two kinds of lawyers are solicitors and barristers. This division of the legal profession is due mainly to historical causes. Each branch has its own characteristic functions and a separate governing body. The division has a number of significant impacts upon the judicial system. It is the main reason for the separation between civil and criminal courts. It also has a significant impact upon judicial appointments.
The traditional picture of the English lawyer is that the solicitor is the general practitioner, confined mainly to the office. The solicitor is the legal adviser of the public. Members of the public are able to call at a solicitor's office and seek his advice in a personal interview. The barrister is the specialist adviser much of whose time is taken up with court-room appearance. A barrister can only be consulted indirectly through a solicitor. Today however the lines of demarcation are blurred.
There is approximately one solicitor to every 1300 of the population, with considerable regional and local variations. There is a heavy concentration in commercial centres. The ratio for barristers is about one per every 10,000. Taking the legal profession as a whole (38,500), there is one practising lawyer per 1200 people. This compares with about one lawyer per 600 in the USA. But a lot of work in English solicitors' offices is undertaken by managing clerks, now called «legal executives» , who are a third type of lawyers. (Legal executives now have their own professional and examining body — «the Institute of Legal Executives»).
Most barristers are professional advocates earning their living by the presentation of civil and criminal cases in court. A barrister must be capable of prosecuting in a criminal case one day, and defending an accused person the next, or of preparing the pleadings and taking the case for a plaintiff in a civil action one day, and doing the same for a defendant the next. Barristers are experts in the interpretation of the law. They are called in to advise on really difficult points.
A would-be barrister must first register as a student member of one of the four Inns of Court. A student must pass a group of examinations to obtain a law degree and then proceed to a. vocational course, the passing of which will result in his being called to the Bar. All practising barristers are junior counsels unless they have been designated Queen's Counsels (QC). QС is expected to appear only in the most important cases.
If a person has a legal problem he will go and see a solicitor. There is no end to the variety of matters which a solicitor deals with. He does a legal work involved in buying house, he writes legal letters for you and carries on legal arguments outside Court, he prepares the case and the evidence. If you want to make a will the best man to advise you is a solicitor.
In a civil action solicitors have a right to speak in the County Court, when the case is one of divorce or recovering some debts, and they deal with petty crimes and some matrimonial matters in Magistrates Courts, the lowest Courts.
To become a solicitor a young man joins a solicitor as a «clerk» and works for him while studying part time for the Law Society exams. When you have passed all the necessary exams, you may apply to the Law Society to be «admitted». After that you can practise, which means you can start business on your own.
Solicitor — солісітор, повірений у справах (юрист, який консультує клієнтів, організації та фірми; готує справи для баристерів)
barrister — баррістер (адвокат, який має право виступати у вищих судах)
a would-be barrister —майбутній баристер
Inns of Court — «Судові Іни» (чотири корпорації баристерів в Лондоні; користуються виключним правом прийому в адвокатуру; в школах при цих корпораціях готують баристерів; існують з XIV ст.).
JUDGES AND JURIES
The judge is the presiding officer of the court. The statutory basis for the appointment of judges dates from the Act of Settlement 1700. Judges are not themselves a separate profession: they are barristers who have been elevated to the bench, itself a name derived from the part of the Court where they sit. The judge decides the interpretation of the law. After all the evidence has been given the judge summarizes the case, both law and facts, for the jury. This is called his summing up.
Judges cannot be removed from office on account of political considerations — the independence of the judiciary is, at least theoretically guaranteed.
The professional judges, ‘High Court Judges’, deal with the most serious crimes. They are paid salaries by the state. Alongside with professional judges there are unpaid judges. They are called ‘Magistrates’ or ‘Justices of the Peace’ (JPs). They are ordinary citizens who are selected not because they have any legal training but because they have ‘sound common sense’ and understanding of their fellow human beings. They give up their time voluntarily.
Magistrates are selected by special committees in every town and district. Nobody, not even the Magistrates themselves, knows who is on the special committee in their area. The committee tries to draw Magistrates from different professions and social classes. The work of the Magistrates' Courts throughout the country depends on the unpaid services of JPs.
The use of the jury in English law stretches far into history; the modern English jury now owes its statutory existence to the Juries Act 1974. To qualify for jury service it is necessary to be a registered elector between the ages of 18 and 65 (the property qualification for jurors was abolished). All those people connected with the law by way of occupation (including ex-prisoners) are ineligible to jury service, as well as the clergy and the mentally ill. Barristers, solicitors and police officers must have retired from that work for a minimum of ten years. The call to jury service is regarded as an obligation.
A jury is normally composed of twelve persons whose names have been selected at random from the list of qualified jurors for the area. Its verdict must be unanimous (it is essentially one of «guilty» or «not guilty») and, in the event of failure to reach agreement, the case is retried before another jury. Only 6 - 7% of jury decisions are by a majority verdict.
Juries most frequently appear in criminal cases in the Crown Courts. The function of the jury is to determine the facts, having heard the judge's summing up and his directions on questions of law.
The lawyers may ask the judge to excuse a member of the ‘jury pool’ from sitting on the jury for this particular case. This is called challenging a juror. There are two types of challenges. The first is called a challenge for cause, which means that the counsel has a specific reason for thinking that the juror would be impartial. There is no limit on the number of panel members that the lawyers may have excuse for cause. The second type of challenge is called a peremptory challenge, which means that a lawyer does not have to state a reason for asking that the juror be excused. Like challenges for cause, peremptory challenges are designed to allow lawyers to do their best to assure that their clients will have a fair trial.
7. My future Profession.
My Future Profession
I am a second-year student of Kyiv National University named after Taras Shevchenko, Law faculty. When I entered the University I had a vague [veig] idea of what I would do in future. Having studied a lot of legal subjects, such as Theory of Law and State, Criminal Law, Civil Law, Financial Law and others I could outline the profession I’m engaged in. Now it is obvious that in community some kind of law is necessary because every day of our lives we are restrained and guided by law. It protects us while it restricts us. Sometimes it punishes us.
Law can also be defined as a standard of conduct, which regulates the relation of the individual to the central government, the relation of the government to the individual, and the relations among the individuals. If there is a conflict in these relations, the law also provides the court system, through which the respective sides can litigate a problem and reach a solution. So, the scope of the law necessarily makes it complex, and complexity has created the need for specialists, namely a lawyer, whose work is quite diversified [dai´və:sifaid]. He may act as the defence counsel in court, he may represent the interest of the plaintiff or the defendant in civil and criminal cases.
In national economy lawyers are entrusted the control on the legality of orders and instructions issued by governing bodies: they participate in drawing up different agreements and contracts, which are concluded with other enterprises; lawyers also inform on the current legislation and give help in legal matters, conduct cases in courts. In addition, they give advice on various legal problems and are often employed by business firms. In almost all civil-law countries there are notaries, who have exclusive rights to deal with such office work as marriage settlements and wills.
All barristers in our country are incorporated either in the national or regional (territorial) bar. Members of the bar work at legal advisory offices, which function in every town administrative district.
Our department trains specialists for working in court, Office of Public Prosecutor, Notary’s offices, other juridical bodies and also in legal service of national economy.
Block 2. Countries and their Political Systems.
Последнее изменение этой страницы: 2016-04-08; Нарушение авторского права страницы