Том 3_Актуальні питання державотворення_КНУ_2016

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and disputes in the future under current BITs which give investors broad rights and limit state policies.

In my opinion Ukraine should follow international trends towards sustainable development and responsible investments. The renegotiation of BITs to include human rights, labor standards, environmental protection and anticorruption provisions will promote more responsible and sustainable business conduct by investors and minimize risks of investor-state arbitrations in a long run. If these new obligations are not arbitrary, unjust or discriminatory between investments and investors, or impose only fair restrictions on investment, they will not scare responsible investors.

Сергій Савелій

Київський національний університет імені Тараса Шевченка, юридичний факультет студент 2 курсу ОР «Магістр»

Affirmative action: terminology and typology of measures

The relevance of the research is based on the fact that the affirmative action measures in favour of different groups of society in order to achieve the state of equality are in use nowadays all around the world, including Ukraine, more often than ever. As well, it must be noted that no scientific research has been done in Ukraine in the sphere yet.

However, the first issue to deal with while describing the affirmative action phenomenon is the issue of terminology, because as we shall discover later it highly influences the attitude towards the policy and its effectiveness.

Even though affirmative action has a long tradition on both a national and an international level, there is not a universally accepted terminology in the field. After analyzing the corresponding legislation and scientific literature some generalizations can be made, that usually the term consists of two words: an adjective, ―positive‖ or ―affirmative‖, in order to entail that some kind of state activity is required to implement these plans, and a noun, ―action‖ or ―discrimination‖. The choice of the noun is significant both semantically and legally. The distinction often is somehow geographical, because in the United States, despite some criticisms, the most commonly used term is ―action‖, while in the European countries the term ―discrimination‖ is used more frequently (e.g. in France ―discrimination‖ positive, in the UK positive ―discrimination‖ and in Germany positive ―Diskriminierung‖ or ―Zulässige Diskriminierung‖), and action less so (thus in Greece, Ukraine positive ―action‖).

Not mentioning rather theoretical and linguistic, semantic differentiation of the terms, the most widely applied of them, affirmative action and positive discrimination often serve as the reflection of the historical roots and the general predisposition towards the policy in the countries. The term affirmative action is rather neutral, therefore can be used to minimise the risk of social anxiety as a result of the implementation of the instruments.

The use of term ―discrimination‖, the language of it seems to imply that the used measure constitutes an exception from equality, and therefore it could be viewed rather suspiciously. Thus, positive discrimination creates some kind of a presumption against the constitutionality of the measure, whereas affirmative action possesses the opposite effect, with different procedural consequences.

On the level of legal terminology, the term positive discrimination seems to be, in principle, more typologically clear in comparison to affirmative action. Yet the connotations of the words

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that exist in every society and the character of measures taken encourage us to use the later term more often.

The legal definition of it in Ukraine is provided by the Law of Ukraine ―On the ensuring of equal rights and opportunities for women and men‖. According to the Article 1 of the Law affirmative actions are special temporary measures to address imbalances in opportunities between women and men to exercise equal rights granted to them by the Constitution and laws of Ukraine.

However as we can already see, the definition seems kind of restrictive, and address only one of the socially important groups, so this kind of definition may be used only if we want to define the gender-based affirmative action measures.

Affirmative action itself has been defined as ―any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future‖ [Statement on affirmative action. Clearinghouse Publication no. 54. United States Commission on Civil Rights. Washington, DC. May, 1977. [Електронний ресурс]. – Режим доступу: http://www.usccr.gov/aaction/state77.pdf]. Affirmative action means taking positive steps to end discrimination, to prevent its recurrence, and to create new opportunities that were previously denied minorities and women.

So as we already mentioned there are different measures of affirmative action and the next reasonable task would be to classify them. There are various criteria that might be used to classify affirmative action measures.

One of the most common ways to classify them would be to do that based on their legal source. There are measures mandated by the constitution, a statute or international law; further, there are soft law measures (such as provisions included in political parties‘ statutes and labour or sports organisations‘ articles of association) or privately originated measures (such as those enforced within a workplace or an academic environment).

Based on their duration, there are measures of definite or indefinite duration. However, it must be important to note that by the character affirmative actions‘ instruments are temporary, established to change the situation in a certain time and place.

Based on the beneficiaries of the affirmative action policies there can be defined allembracing measures (such as those securing minimum participation of both sexes in electoral processes), generic measures (such as those favouring all minorities) and sub-group measures (such as those favouring a specific minority).

A prominent legal scholar David B. Oppenheimer in his works proposed to group the affirmative action measures into five models: strict quotas favouring women or minorities (Model I); preference systems in which women or minorities are given some preference over white men (Model II); self-examination plans in which the failure to reach expected goals within expected periods of time triggers self-study, to determine whether discrimination is interfering with a decisionmaking process (Model III); outreach plans in which attempts are made to include more women and minorities within the pool of persons from which selections are made (Model IV); and, affirmative commitments not to discriminate (Model V). [Oppenheimer, D. (1988), Distinguishing Five Models of Affirmative Action. Berkeley

Women‘s Law Journal,4, 42-61.]

So to make the conclusions it‘s important to understand that affirmative action is a very complex phenomenon that can‘t be limited to the definition given in the Ukrainian legislation.

It is important to research the question as a whole, starting with the terminology and typology of measures and to understand the problematic of the issue.

Науковий керівник – к.ю.н., доц. Москалюк О.В.

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Maksym Sarnatskyi

Taras Shevchenko National University of Kyiv, Law Faculty 1st year Master’s student

Intellectual Property as an economic category

Intellectual human activity exists in every science, which provides it possible to interpret intellectual property in terms of different areas. Because of this, there appears a problem of determining intellectual property as an economic category consistent with the legal regulation of the industry.

Receiving any benefits can be achieved by creating in the areas of property production or when objects already exist in society. The first type of property production means that objects were created by someone and just innovated by people. Another one means that people have only idea and should create these objects. Thus, two types of property can be distinguished. However, the first one is protected by law by property right and another one – intellectual property right.

Nowadays, ownership of the material means of production gradually changes its value in society. Instead of this, knowledge, highly skilled workforce and intellectual capital increase their role in economic processes. Some scientists believe that intellectual activity acts as a form of socialization, which means an appropriation in which the subject becomes an intellect owner.

Intellectual capital is the result of the separation of appropriation of intangible objects, along with real objects, and it can also arise through involvement of bigger amount of economic subjects into the appropriation process. Large number of scientists believes that intellectual property - is about describing technology, art, inventions, ideas that have an intangible form firstly, and just over time after creating they will acquire material forms. Because of this, we can say that intellectual property is a commercial use of creative activity to get artistic or technical effect. So it is not the product, it is the idea that stands for this product, or the way in which this idea is expressed.

Economists agree with legal views on intellectual property studying the problem of economic use, evaluation and protection of acquired knowledge. But first of all intellectual property reflects certain economic relations of people. [ Goilo V. Problems of intellectual labor// USA: economic, politic, ideology. 1995. №6 P. 36.]

The economic relations and the right of ownership - is not the same. According to the legislation in Ukraine person could be the owner of intellectual property, but not to be an owner in economic way, and vice versa. In most cases, it refers to the current conditions of realization of the right of intellectual property in Ukraine, as far as economically the inventor of intellectual property is its owner, but he is not protected because of the absence of a proper legal framework considering implementation of intellectual property right to the resulting product.

Scientists think that objects of intellectual property it is a result of mental activity which could be treated as high-quality Recycling of the perceived and that entered into life. Based on the definition of property as an economic category, intellectual property could be described as a form of economic relations of the assignment of intangible factors and results of intellectual labor. [Volkova T. Individual intellectual property in the science// Russian economic magazine. 1993. №6 P. 136-138.]

Objects and subjects of intellectual property are very different from the elements of material ownership, since the subject and object of the real property are divided among

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themselves. In other words, initially subject confers natural things or artificially created objects, which he introduces into the sphere of his activity later. In the case of intellectual property, by contrast, the object and the subject of property are not always divided among themselves.

Specific feature of intellectual property is that only the knowledge that is fixed in any media can be really, physically isolated from its owner, moved to market and sold as a good. In specific terms of their usage they form a part of the institutional capital in the intellectual capital and become objects which are protected by intellectual property rights. [Schultz T. Investing in People. Berkeley, 1981. P. 88-91.]

As for the specifics of the assignment of intelligent objects – it is explained as the impossibility of complete exclusion of intellectual property and knowledge from the person. This factor allows the inventor of the object of intellectual property to use it with other entities.

To summarize, some economic activity is the result of intellectual activity. In other words, creation of objects of intellectual property is performed by realization of specific ideas into reality through creative human activity, which, as a result, leads to specific economic relations between subjects.

Науковий керівник – к.ю.н, доц. Кодинець А.О.

Khrystyna Tsymbaliuk

Ivan Franko National University of L’viv,

Law Faculty 2nd year student

The ultimate concept of “punishment” in the practice of the European Court of Human

Rights: the possibility of implementation in Ukraine Autonomy learning as a means of increasing language skills

The relevance of the topic. On July 17, 1997 the Supreme Rada ratified the Convention on Human Rights and Fundamental Freedoms (hereinafter - the Convention), which resulted in both its recognition and practice of the European Court of Human Rights (hereinafter - ECHR) as a source of law in Ukraine. The scope of guarantees provided by Art. 6, 7 of the Convention and Art. 4 №7 Protocol to the Convention depend on it. Therefore, for the proper performance of obligations arising from the Convention, it is important to understand clearly, how the concept of "punishment" is treated in the law of the Convention.

The formulation of the issue. There is a need to analyze the practice of the European Court of Human Rights and define the content of the ultimate concept of ―punishment‖ in the

Convention. Furthermore, we should explore ways how to implement appropriate approaches of the ECHR on the national level.

Main part. The concept of "punishment" is mentioned in Art. 2 of the Convention, Protocol No. 6, 13, where this term refers to the death penalty, in the Art. 3 - treatment with a view of punishment and in Art. 7 and P. 4 of the Protocol No. 7 to the Convention - the autonomous meaning. It should be highlighted that Art. 6 of the Convention does not contain this notion, but guarantees, fixed in it, refer to the concept under investigation.

The main principles through which the interpreting and application of Art. 7 of the Convention is carried out, have been set by the Court in judgments in cases of S. W. v. the United Kingdom (pp. 32-34), C. R. v. the United Kingdom 33-34, Streletz v. Germany (p. 50) and was summarized in the case of ―Konov v. Latvia‖: "The guarantee, fixed in Art. 7 as an essential element of the rule of law, occupies a prominent place in the protection, provided by the Convention; it is confirmed by the fact, that in Art. 15 no deviations are allowed in period

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of war or other public danger. As follows from its object and purpose, it should be interpreted and applied in order to ensure effective protection from arbitrary prosecution, conviction and punishment. Under the Art. 7 it is not limited by the prohibition of criminal law retrospective application to the detriment of the accused; it also embodies the principle that only the law can define a crime and set penalties and the principle that criminal law should not be interpreted extensively to the detriment of the accused, for example, by analogy. Hence, crime and punishment must be clearly defined by law".

While giving an official interpreting of the concept, enshrined in the Convention, the ECHR is not limited by the objective evidence of the case and can go beyond their content, that is, regardless of how they are interpreted in the law and practice of Complaint States. Such an approach was demonstrated in the court judgment of "Malige v. France "of 23 September 1998., which states:" The concept of "punishment" mentioned in the Art. 7 of the Convention has an ultimate treatment [Рішення ЄСПЛ по справі «Malige v. France» від 23.09.1998 р. № 85210/59. – [Електронний ресурс]. – Режим доступу: https://books.google.com.ua/books/about/Case_of_Malige_v_France_I_A_v_France_Cas.html? id=z1CeZwEACAAJ&redir_esc=y]. During the trial, the Court is not related by the qualifications, provided by the domestic law, as they have only relative value "(Similarly, in the judgments of "J. B. v. Switzerland" on August 3, 2001. And "Meftah and others v. France of 26 July 2002.").

In the case of "Welch v. United Kingdom "on February 9, 1995, the ECHR decided that to ensure the effective protection under Art. 7, the Court should not be limited by the concept of outward signs, it should evaluate if the specific measure of "punishment", in effect, is equivalent within the content of this Article. With this assessment, the starting point of the issue is whether it is the result of a conviction for a "criminal offense". Other factors, which may be taken into consideration are the nature and purpose of the measure, its classification under the national law, the procedure of its adoption and executing and the degree of severity [Рішення ЄСПЛ по справі «Welch v. United Kingdom» від 11.04.2014 р. № 20372/11. – [Електронний ресурс]. – Режим доступу: http://www.brrln.org/http/record.php?id= 117&mv=43]. In the context of the last but not the least factor, we can mention also the requirement of proportionality the aim pursued and taking into account the identity of the perpetrator in the context of the "Shvydka v. Ukraine" on January 30, 2015. However, the severity of the punishment itself is not critical, for example, many are not punitive measures, which by their nature are safety, can have a significant impact on the person on whom they are imposed.

In the result of application of these criteria, the ECHR interprets the concept of "punishment" broader than the Member States of the Council of Europe. This approach was demonstrated in the judgment in the case of ―Vyerentsov v. Ukraine‖ on 11.04.2013. where offences, responsibility for which are envisaged by Art. 185 and 1851 of the Code of Ukraine on Administrative offenses, and accordingly administrative detention, applied for their commission are recognized as a punishment [Рішення ЄСПЛ по справі «Vyerentsov v. Ukraine» від 11.07.2013 р. № 20372/11. – [Електронний ресурс]. – Режим доступу: http://www.brrln.org/http/record.php?id=117&mv=43].

Conclusion. Regarding Ukraine, independent interpreting of "punishment" does not coincide with its treatment in the Criminal Code of Ukraine; it is much broader in its meaning. The Code of Ukraine on Administrative Offences actually allows imprisonment (although in a somewhat softened name - "arrest"), so it is necessary to delimit officially the correlation between crimes and administrative offenses and, in particular, to highlight "criminal

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misconduct" in part in a separate, independent kind of offenses, considering the concept proposed by the ECHR within the commitments undertaken by our country by ratifying the Convention.

Науковий керівник – к.ю.н., доц. Хилюк С.В.

Galym Teleuyev

Zhetysu State Unіversіty named after І.Zhansugurov, Kazakhstan, Law Department Doctoral student

Some ecological and legal aspects of using renewable energy in the Republic of Kazakhstan

Abstract

This article considers ecological and legal aspects of using renewable energy sources in the Republic of Kazakhstan. The author emphasizing basic factors of renewable energy sources development pays special attention to ecological factor of using renewable energy. Using comparative and legal method the author defines influence of international legislation on domestic one. In his work made conclusions about ecological and legal value of renewable power engineering.

Key words: Power engineering, alternative sources of energy, energetic law, ecological law, green economy, sustainable development , IRENA, green technology.

Introduction

In recent years the problems of using renewable energy sources (RES) for needs of power supply of various agricultural and industrial objects and also creation of favorable climate for the environment have been attracting more. Urgency and prospects of this section of power is caused by several major factors: catastrophically difficult situation of ecology, need of searching new kinds of energy, use alternative of power supply in the conditions of the world crisis. Traditional fuel and energy resources (coal, oil, gas, etc.) at existing rates of development of scientific and technical progress will run low in the next 100-150 years by scientists estimates. Almost all developed countries of the world pay serious attention to the problem of RES using.

THE MAIN RESEARCH

It is obvious that timely and proper response from the world community party to aggravating problem of global climatic change is necessary. For this purpose it is essential to carry out formation and implementation of purposeful influence within the world system, it means to start global control of greenhouse gases emission. Thereto it is necessary to create corresponding institutional environment (―global rules of the game‖) which supports regulatory and legal base and structures of management, scientific, informational, financial supply, etc. [Lopatin V.N., Muravykh A.I., Gritsevich I.G. Global change of climate, problems and prospect of implementation Kyoto Protocol in the Russian Federation: Series of teaching materials on the program of course ― State administration of nature management‖. – М.: RAGS, UNEP, WWF Russia, 2005. – 40 p]

ECO 92 became one of the most significant events of the modern times. The World Forum concentrated the attention of statesmen and the world community on a key question of indissoluble interrelation of the problems of modern civilization development and preservation of the environment. In Conference documents it is noted that the human civilization is enduring

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a turning point in the history. The mankind makes the choice for the balanced approach to solution global problems providing increase the standard of life of the whole population of the planet without destroying the environment at the same time. State strategies of sustainable development of the majority countries of the international community have a crucial importance for this problem implementation, national governments are thought to be responsible for their realization. Creation the strategy of sustainable development and the mechanism of its realization should be a key question in the agenda of the world community for the 21st century [Rio de Janeiro Declaration on Environment and Development was adopted by Conference of U.N.O on Environment and Development, Rio de Janeiro, June 3-14,1992 //Оfficial site of U.N.O: http://www.un.org/].

The Republic of Kazakhstan as the owner of large stocks of hydrocarbonic raw materials did not stay apart from the initiatives of the EU, and it goes with the times developing production of alternative kinds of energy. The Strategy ―Kazakhstan 2050‖ notes Kazakhstans obligations in this sphere, namely to provide not less than a half of all cumulative energy consumption in the form of alternative and renewable energy [Message of the President of the

Republic of Kazakhstan to people of Kazakhstan ―Strategy ―Казахстан-2050‖: new political course of the completed state‖// Kazakhstanskaya pravda. December 15, 2012. №437-438. – P. 12-13].

Speaking about positive influence of using renewable energy sources it should be noted that transition to ―green‖ economy will impact on creation material benefits, employment, poverty eradication and long-term economic prosperity. In solution of the above designated environmental problems, in our opinion, there should be a purposeful policy allowing to make investment resources in environmental protection and rational use of natural resources attractive. This circumstance is confirmed by clause 1 of Article 11 of the Law of RK ―About Investments‖, where it is said that: ―The purpose of the state support of investments is creation of favorable investment climate for economy development and investments stimulation into creation of new things, expansion and updating of the operating productions with modern technologies application, increase of professional development of the Kazakhstani personnel, and also environmental protection‖ [Law of the Republic of Kazakhstan of January 8, 2003 under № 373-II About investments//www.zakon.kz]. Analysis of the Law of RK ―About investments‘ shows that investment of environmental protection is one of the priority directions, but at the same time it does not contain mechanisms of this norm realization , therefore regulation of these procedures is carried out within ecological law, whose basic regulatory legal act is the Ecological Code of RK adopted on January 9, 2007 [Code of the

Republic of Kazakhstan of January 9, 2007 under № 212-III ―Ecological Code of the Republic of Kazakhstan‖ (with amendments and changes on the state of 15.06.2015) // adilet.kz. 2015]. In terms of measures on environmental protection the user of nature should provide the resources allocated for implementation the complex of technological, technical, organizational, social and economic measures directed to environmental protection and improvement of its quality. As we know, the user of nature pays for environmental pollution and for using natural resources. In this case he also pays, but for what? How this duty to pay is regulated in EC of

RK, it is difficult to explain. In currently inactive Law of RK ―About Environmental Protection‖ of July 15, 1997 this type of payment was, it was called as payment for protection and reproduction of natural resources [Law of the Republic of Kazakhstan About environment protection of July 15, 1997 N 160 Report sheets of the Parliament of the Republic of Kazakhstan, 1997 , N 17-18, p. 213].

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Kazakhstan was included into the list of the countries of the Appendix B of Kyoto Protocol with quantitative obligations on reduction of greenhouse gas emissions by 5% from the basic level of 1990 for the second test period which starts on January 1, 2013, lasts for 8 years and finishes on December 31, 2020. At the same time, according to the articles 20 and 21 of the Kyoto Protocol, this amendment comes into force for the Parties which have accepted it, on the ninetieth day from the date of receiving the acceptance document by the Depositary, at least from three quarters of the Parties of this Protocol. The amendment comes into force for the countries which have ratified it . At present time Kazakhstan has started realizing ―green‖ development policy that is supported in the Concept of Transition of the Republic of Kazakhstan to green economy.

Adhering to the policy of ―green‖ development Kazakhstan introduced serious innovations in 2013 to the Ecological Code of the Republic of Kazakhstan of January 9, 2007 No. 212-III

[―Ecological Code of the Republic of Kazakhstan‖ (with amendments and additions on 15.06.2015//adilet.kz. 2015]. It is, first of all, state regulation system in the sphere of emissions and absorption of greenhouse gases. It includes, firstly, distribution of quotas for emissions of greenhouse gases to nature managers; secondly, establishment of market mechanisms of reducing emissions and absorption of greenhouse gases; thirdly, administration of nature managers.

Conclusions. As we see, the rules of international law have made a serious impact on development of national legislation of the RK in the studied sphere. Considering the fact that modern problems of ensuring ecological and energy safety go beyond national borders more and more actively, experience of the EU has invaluable value for development of legal regulation of ecological and other relations in the conditions of transition to ―green‖ economy.

According to the carried-out analysis, the national legislation of the RK, including ecological, tax, about support of using renewable energy sources, about investments, requires further improvement. Effective involvement of investments into all spheres of nature protection activity will enable to activate the market in this sphere, to introduce many innovative solutions to technological production process. This way was chosen by many European countries. Unfortunately, the existing investment legislation does not have special legal instruments of supporting renewable energy sources, and their existence would enable to make the investment field more attractive, and their realization procedures to make more transparent as this sphere demands flexible system of preferences, and also taxes and duties.

In spite of the fact that, in the Republic of Kazakhstan the Law on supporting use of renewable energy sources works, we believe that it is necessary to make considerable changes, in particular it is offered to regulate the principles and priorities of supporting renewable energy sources, the rights and duties of participants, forms and directions of international cooperation, economic regulation mechanism and legal responsibility.

Bohdan Yakymenko

Taras Shevchenko National University of Kyiv, Law Faculty 2nd year Master’s student

Registration of property rights to real estate in Ukraine: tendencies and relevant issues

The registration of rights to real estate has always been a relevant topic. This instrument allows formalizing, securing and protecting one of the fundamental rights of citizens and legal entities – the right to property. Thus, the efficient mechanism of registration of property rights

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to real estate has not only significant legal, but also economic and social value. This topic is especially relevant in the light of the recent changes in the Ukrainian legislation regarding the registration of rights to real estate and their encumbrances.

The purpose of this paper is to analyze the changes in the legal regulation of state registration of property rights to real estate in Ukraine during 2013-2016. The paper aims to outline the major developments in this field as well as emphasize on the problematic issues.

The discussion on how the state registration of property rights to real estate should look like has begun with the adoption of the Land Code of Ukraine on October 25, 2001 and continued over the following years. [Kulinich P. F. State registration of rights to land estate and land cadaster: notion, correlation and legal principles / P. F. Kulinich // Legal Journal. – 2005. – № 11 (41). – P.35–42].

During the recent years, the system of registration of the property rights to real estate has been evolving in Ukraine.

In the beginning of 2013, a new system of registration of rights to real estate has been enacted, when the new edition of the Law of Ukraine ―On State Registration of Property Rights to Real Estate and their Encumbrances‖ came into force. The new edition of this law established that registration of property rights and their encumbrances is performed in one single register - the State Register of Property Rights to Real Estate (the State Register). Previously, the registration of property titles was performed in six different registers, which caused uncertainty for both title owners and state bodies.

Although incorporating the registration databases for rights to real estate and their encumbrances into one register in 2013 was a major step forward, several problematic issues still remained, including such issues as centralization of registration procedure and limited scope of subjects who are entitled to perform registration (the Ministry of Justice of Ukraine and its departments, State Registration Service (Ukrderjreyestr) and notaries), lack of responsibility for violations of registrators, closed data on the object and the subject of the registered rights. Thus, the reform had to continue. [Bahurinska M. M. Novels of legal regulation of state registration of rights to land plots / M. M. Bahurinska //Ministry of Justice Bulletin. – 2013. – № 7 – P. 5–13].

In 2015, one of the main directions of the reforms was decentralization and demonopolization of the property rights registration functions.

On, January 1, 2016 the new edition of the Law of Ukraine ―On State Registration of Property Rights to Real Estate and their Encumbrances‖ came into force. The new amendments as of 26 November 2015 have widened the scope of subjects who can perform the state registration of property rights to real estate and transferred the function of registration from central to local level. Another significant change is that the rights to real estate and their encumbrances obtained after January 1, 2016 will no longer be confirmed by ownership certificate. The data on such rights will be entered into the State Register and the rights themselves will be confirmed by the corresponding entry.

In our opinion, the new edition of the Law of Ukraine ―On State Registration of Property Rights to Real Estate and their Encumbrances‖ contains a lot of positive changes, such as the electronic system of property rights registration, which stipulates transparency, gives contractors more flexibility and makes Ukrainian legislation overall more compliant with European standards; shortening of the term for registration of encumbrances from 5 working days to 24 hours from the moment of accepting the application for registration; possibility to perform the property right registration regardless of the real estate location within the Autonomous Republic of Crimea, Kyiv and Sevastopol and regions; the possibility to contest

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decisions and actions of the state registration bodies in administrative order before the Ministry of Justice of Ukraine or its department and introduction of administrative responsibility for breach of procedure for state registration of rights to real estate and their encumbrances.

Nevertheless, the Law of Ukraine ―On State Registration of Property Rights to Real Estate and their Encumbrances‖ still contains some provisions that need to be reworked.

Chapter 6 Article 37 (Subclause 2 a)) of the Law provides the possibility of the Ministry of

Justice of Ukraine ―cancelling the decision on state registration of rights‖. However, in Chapter 5 Article 12 of the Law it is stated that ―information of the State Register of rights is valid and can be used in a dispute with a third party until it is canceled in the manner prescribed by this Law.‖ Consequently, it is not clear, what is subject to cancellation – the decision of state registration of rights as prescribed by Chapter 6 Article 37 or the information itself as Chapter 5 Article 12 of the Law provides for. Therefore, there is a need to unify terminology of the Law that is used regarding cancellation of decision on state registration of rights.

Chapter 2 Article 37 of the Law states that the Ministry of Justice of Ukraine views claims on decisions, actions or omissions of its territorial bodies. In our opinion, it is doubtful that in such cases the Ministry of Justice will view the claims without prejudice to claimants and it would be better to transfer this function to an unbiased body.

To sum up, the legislation on registration of the property rights to real estate in Ukraine over recent years has been subject to important changes that are expected to bring Ukraine closer to European standards in this field. However, the success of the recent reforms greatly depends on their actual implementation, especially the ability of the local bodies to create the conditions for performing registration. In addition, the state has to ensure the safe functioning of the electronic register. Finally, the legislation on registration of the property rights to real estate needs to be systematized and unified. There is still a lot of room for reforms in this sphere, and more researches on the issue of registration of the property rights to real estate need to be conducted to spot the remaining problems and propose ways to solve them.

Науковий керівник – д.ю.н., проф. Діковська І.А.

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