Kherson State University Herald. Series “Legal Sciences”

MILITANT DEMOCRACY. RIGHT TO REBELLION. DEFENCE OF DEMOCRACY

2025-07-10T08:13:00+00:00

Purpose. The purpose of this article is to examine the concept of militant democracy, its inherent contradictions, and the limits of legitimate democratic defense, as well as to explore the right to rebellion as a potential element of the democratic process. The author questions the conventional opposition between democracy and violence, emphasizing that democracy, as a political system, not only requires protection but at times demands means that may contradict its own principles. Methods. The study employs an interdisciplinary approach, combining political philosophy, legal theory, and the analysis of specific historical examples. The primary focus is not on legal analysis but on a philosophical reflection on the relationship between democracy, violence, and the right to resistance. Results. The article demonstrates that militant democracy is not only a model for protecting against anti-democratic threats but also a potentially dangerous mechanism for curtailing rights and freedoms. It is emphasized that the appeal to “self-defense of democracy” is often used as a political justification for repressive practices. The author examines various approaches to understanding the defense of democracy and analyzes historical examples (Germany) that illustrate the complexity of defining acceptable limits within a democratic regime. Conclusions. Democracy, as a living political form, cannot be reduced to a set of procedures. Its preservation often requires a choice between liberty and security, and at times – a reevaluation of the very notion of legitimacy. In this context, the right to rebellion is viewed not as a threat to democracy but as a form of its radical defense in exceptional circumstances.

ON THE PROBLEM OF IMPROVING THE LEGAL SYSTEM FOR COMBATING BULLYING

2025-07-10T08:13:09+00:00

Purpose. To investigate scientific psychological, pedagogical and legal approaches to identifying signs and formulating a definition of bullying, on the basis of which to determine ways to improve the regulatory and legal support for combating this negative social phenomenon. Methods. The study used general scientific methods of analysis, synthesis and generalization of scientific sources and regulatory and legal acts, as well as scientific forecasting of possible consequences of reforming the legislative framework for combating bullying. Results. An important aspect of the deployment of a system of regulatory and legal support for combating bullying is the determination of its typical signs, which can be used as the formation of relevant definitions of both a socio-psychological and regulatory and legal nature and become the basis for improving regulatory and law enforcement support. The most significant signs of bullying are its social danger, violent nature, committed against a minor or underage person or by such a person with the aim of causing moral, physical or other harm or emotional humiliation, the presence of direct intent, systematicity or repetition, aggressiveness and the presence of parties, which is accompanied by an imbalance of their physical strength and social status. The definition of bullying in the legislative field is proposed by the Code of Ukraine on Administrative Offenses and the Law of Ukraine “On the Protection of Childhood”. At the same time, the interpretations proposed by the specified regulatory legal acts contain contradictions, which primarily consist in the inconsistency of limiting the circle of participants in bullying only to participants in the educational process or extending it to participants in all children’s institutions. The specified collision makes it impossible to inevitably hold accountable for such an act. Conclusions. Analysis and generalization of research on the issue of bullying allows us to determine that it is considered a socially dangerous phenomenon, which consists in violence committed against a minor or underage person or by such a person with the aim of causing moral, physical or other harm or emotional humiliation and involves the presence of direct intent, systematicity or repetition, aggressiveness and the presence of parties, which is accompanied by an imbalance in their physical strength and social status. The measures taken to improve the legal mechanism for combating bullying require improvement, primarily in terms of overcoming existing legal conflicts and providing it with systematicity and coordination.

REFORM OF THE CRIMINAL LEGISLATION OF UKRAINE IN THE FIELD OF COMBATING HUMAN EXPLOITATION BASED ON INTERNATIONAL CRIMINAL LAW STANDARDS: AN INTERDISCIPLINARY MODEL OF DOCTRINAL REFORM

2025-07-10T08:13:17+00:00

Relevance of the Topiс. In the context of armed aggression against Ukraine, the need to revise currentcriminal legislation in the field of combating human exploitation in accordance with international standards hasbecome increasingly urgent, particularly with regard to the jurisprudence of the International Criminal Court and the European Court of Human Rights. The growing incidence of systemic sexual and labor enslavementof civilians during armed conflict necessitates a normative response grounded in internationally recognizedlegal principles.Purpose. The aim of the study is to develop a doctrinal model for reforming Ukraine’s criminal legislation,which would ensure its harmonization with the practice of the International Criminal Court and the EuropeanCourt of Human Rights in the qualification of exploitation-related offenses, taking into account the contextof armed conflict.Methods. The study employs comparative, systemic-structural, and formal-legal methods, which enablea juxtaposition of the provisions of the Criminal Code of Ukraine with international criminal law standards,as well as an analysis of the case law of the International Criminal Court and the European Court of HumanRights regarding the exploitation of individuals.Results. Based on indicative matrices, the study establishes that the current version of Article 438of the Criminal Code of Ukraine does not adequately cover war crimes related to exploitation. The necessityof introducing a Concept for the Adaptation of the Criminal Code of Ukraine to the requirements of the RomeStatute and the Convention for the Protection of Human Rights and Fundamental Freedoms is substantiated.Conclusions. The proposed reform model strengthens criminal law guarantees for the protectionof individuals, reduces the risks of Convention violations in national legal practice, and facilitates Ukraine’sintegration into the European and international legal space.

CIRCUMSTANCES THAT EXCLUDE CRIMINAL LIABILITY AND/OR RELEASE FROM CRIMINAL LIABILITY FOR UNAUTHORIZED LEAVING PART OR PLACE OF SERVICE

2025-07-10T08:13:25+00:00

This article aims to investigate legal circumstances in which a serviceman may be exempted from criminal liability for HRS and circumstances that exclude criminal liability for this type of military criminal offenses. To achieve the declared purpose and obtain the proper results, the following set of methods was used: analysis of normative legal acts, systemic method, formal-logical method, method of interpreting the rules of law, functional method. Results and conclusions of such activity. It is determined that the SCR is on the order of military service and has a negative impact on the combat capability of the Armed Forces and other military formations, as well as the defense capability of the state as a whole. There are two groups of circumstances that affect the legal fate of the serviceman who committed the HSC – circumstances that exclude criminal unlawfulness of the act and circumstances that are released from criminal liability. It is established that in the presence of circumstances that exclude criminal unlawfulness of the act, the act, although formally contains signs of crime, is not recognized as criminal because it loses its public danger and/or illegality. These circumstances were divided into those that exclude the criminal degree of public danger of act, those that exclude criminal illegality of the act, and those that exclude at the same time public danger and illegality.The disadvantages of legal regulation of the application of norms that exclude criminal liability for HRS include the indirect application of general rules of criminal legislation to specific military offenses and the complexity of determining the loss of public danger or its “legalization” in the conditions of martial law. It is determined that the mechanism of dismissal for the HCP is based on the provisions of the legislation, which provide for the possibility of dismissal of a serviceman who for the first time committed such an act, provided that he voluntarily appeared with confession and notification of all the circumstances of the commission, as well as the lack of intent for complete evasion of military service. It is stated that in the practice of criminal liability during the martial law, such circumstances may be taken into account as the deficiencies of legal regulation of exemption from criminal liability have the blurred criteria for determining intent for complete evasion of military service, which can lead to subjectivism in law enforcement. The directions of improvement of legal regulation, including the creation of detailed explanations for law enforcement agencies, ensuring the unity of jurisprudence, conducting trainings for military lawyers, legislative consolidation of clear criteria for assessing intent and development of rehabilitation programs for military personnel are proposed.

THE INFLUENCE OF INTERNATIONAL ARMED CONFLICTS OF THE FIRST HALF OF THE 20TH CENTURY ON THE FORMATION OF APPROACHES TO THE PROHIBITION OF HUMAN EXPLOITATION IN INTERNATIONAL CRIMINAL LAW AND NATIONAL LEGISLATION

2025-07-10T08:13:33+00:00

Relevance of the topiс. The need to comprehend the historical origins of legal standards concerning the prohibition of human exploitation arises from the necessity to improve and adapt them in the context of armed conflicts. Amidst the war in Ukraine, including large-scale displacement of the population and the functioning of occupation regimes in temporarily seized territories, new forms of exploitation emerge, adapted to contemporary realities. This requires a critical reassessment of established norms of international humanitarian law, their comparison with historical experience, and the identification of conceptual continuity within the legal regulation system. In this context, the history of international armed conflicts of the first half of the 20th century serves as a source not only of normative content but also of practical insights that can inform the improvement of both national and international mechanisms for the protection of the individual. Purpose. The article aims to highlight the role of international armed conflicts of the first half of the 20th century in shaping legal approaches to the prohibition of human exploitation in international criminal law and national legislation. Particular attention is paid to the normative evolution following the First and Second World Wars, the codification of legal standards in the Geneva Conventions, the work of international tribunals, and the consolidation of relevant provisions in the Rome Statute of the International Criminal Court. Methods. The research employs the historical-legal method to analyze the prerequisites for the development of international legal norms, the comparative method to juxtapose international and national legal approaches to the qualification of exploitation during armed conflict, and the formal-legal method to interpret the provisions of international treaties. An interdisciplinary approach is also used to integrate elements of international humanitarian, criminal, constitutional, and labor law in the context of regulating the prohibition of exploitation. Results. The study identifies the decisive influence of the practice of mass human exploitation during armed conflicts in the first half of the 20th century on the formation of norms in international humanitarian and criminal law regarding the prohibition of slavery, forced labor, sexual enslavement, and the involvement of children in hostilities. It outlines how international standards have contributed to structural changes in national criminal legislation. Conclusions. The wartime experience of the 20th century continues to shape international legal standards concerning the prohibition of human exploitation. Historical analysis enables a critical evaluation of the effectiveness of current legal norms, particularly in the context of contemporary armed conflicts, and serves as a basis for revising and refining qualifying elements and improving national legislation in response to the hybrid challenges of the present day.

EXPLOITATION OF A CHILD IN THE CONTEXT OF DOMESTIC VIOLENCE: CRIMINAL LAW ANALYSIS AND PROSPECTS FOR LEGISLATIVE IMPROVEMENT

2025-07-10T08:13:42+00:00

Relevance of the Topiс. The issue of child exploitation in the context of domestic violence is gaining particular significance in light of the growing number of documented cases of hidden, systemic abuse within family environments. Such violence is often accompanied by the child being subjected to various forms of exploitation – labor, sexual, psychological, or unlawful. Despite the existence of certain criminal law provisions, current Ukrainian legislation does not ensure a comprehensive and adequate level of protection for children subjected to prolonged violence. In these cases, exploitation is not only a consequence of unlawful conduct by adults but also constitutes a continued form of coercive influence exercised by parents or guardians through the abuse of their official status and authoritative position. Purpose. The purpose of this research is to identify the substantive features and forms of child exploitation in the context of domestic violence, to analyze the current state of their criminal law protection in Ukraine, and to formulate conceptual proposals for improving the relevant legislation in accordance with international child protection standards. Methods. The research applies comparative legal, formal legal, systemic-structural, and interdisciplinary methods. This methodological approach allows for an in-depth analysis of the concept of exploitation in domestic violence settings, an examination of international legal frameworks, and an assessment of domestic criminal law provisions ensuring appropriate legal safeguards for children. Results. The study establishes that the current criminal law framework in Ukraine fails to provide adequate protection for children subjected to exploitation in the context of domestic violence. The core reason for this deficiency is the absence of a specialized corpus delicti that would address the use of a minor in labor, sexual, unlawful, or other forms of activity that occur under the influence of systemic abuse. It is found that intrafamily exploitation is largely latent, rooted in the abuse of parental or custodial authority, and typically unfolds in conditions of psychological dependency. This significantly complicates the detection, investigation, and legal qualification of such acts. The research demonstrates that the concept of exploitation must be expanded to include non-material, non-physical, and indirect forms of coercion, and that the family environment should be recognized as a distinct space of heightened vulnerability. The study emphasizes that isolated criminal law regulation, without the effective involvement of family law mechanisms, social services, and psychological support, is insufficient for effectively countering such offenses. Conclusions. The research concludes that effective response to the exploitation of children in the context of domestic violence requires a phased modernization of criminal legislation. Specifically, it is necessary to introduce a separate corpus delicti addressing the use of a child under conditions of systemic domestic violence, taking into account dependency-based and psychological forms of influence. It is proposed to improve the definitional framework of existing legislation by broadening the legal understanding of exploitation and recognizing the family environment as a potential high-risk factor for violations of children’s rights. The study substantiates the need to create an integrated mechanism for the interaction of criminal, family, and social law aimed at early detection, proper legal qualification, and the rehabilitation of affected children. It also outlines promising directions for further research, particularly in the field of harmonizing national law enforcement practices with the provisions of the Istanbul Convention, the UN Convention on the Rights of the Child, and international child protection standards.

THE LEGAL STATUS AND ORGANIZATION OF THE COURT APPARATUS: FOREIGN EXPERIENCE AND THE POSSIBILITY OF ITS IMPLEMENTATION IN UKRAINE

2025-07-10T08:13:51+00:00

The purpose of this article is to conduct a comprehensive analysis of the legal status and organizationalstructure of the court apparatus in Ukraine and foreign countries, to identify regulatory gaps in nationallegislation, and to substantiate the possibility of overcoming them through the implementation of positive international experience. The article aims to develop recommendations for improving the organizationof the court apparatus in Ukraine, enhancing the efficiency of justice, and strengthening public trustin the judiciary through the lens of advanced international practices.The study is based on a combination of general scientific and special legal methods, in particular:the comparative legal method – to analyze the organization of court staff in foreign countries and to identifythe prospects for adapting their experience in Ukraine; the systemic approach – to synthesize results and developconclusions; and the formal legal method – for analyzing the relevant legal norms.Results. The analysis revealed significant shortcomings in Ukrainian legislation regarding the legal statusof the court apparatus, including the absence of a clear legal definition, insufficient regulation of staff duties,and inadequate financial and technical support. These issues negatively affect the efficiency of the judiciaryand public trust in its functioning. Foreign experience – particularly that of France, Austria, Germany,Georgia, and Poland – demonstrates the importance of a clearly structured court apparatus, the introductionof the Rechtspfleger institution, further development of pre-trial mediation, and the creation of specializedjudicial bodies. The article substantiates the need to legally define the term “court apparatus” in Ukrainianlegislation and to implement the provisions of the Council of Europe’s Action Plan for Ukraine 2023–2026in the field of institutional and material-technical support for the judiciary.Conclusion. An effective court apparatus is a fundamental condition for the proper functioning of the judiciaryand constitutes a key step towards Ukraine’s European integration. The selective implementation of foreignpractices can significantly improve the quality of justice and address systemic challenges. The article offersspecific proposals for legislative and institutional reform of the court apparatus, considering national legalcharacteristics and international recommendations.

REVIEW OF THE MONOGRAPH BY A. V. KOVALENKO «CRIMINALISTIC DOCTRINE ON THE COLLECTION, RESEARCH AND USE OF EVIDENCE IN CRIMINAL PROCEEDINGS»

2025-07-10T08:14:00+00:00

REVIEW OF THE MONOGRAPH BY A. V. KOVALENKO «CRIMINALISTIC DOCTRINE ON THE COLLECTION, RESEARCH AND USE OF EVIDENCE IN CRIMINAL PROCEEDINGS»