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Проблеми функціонування інвестиційного ринку в Україні (досвід іноземних країн)

Author(s): V. V. Kudriavtseva / Language(s): Ukrainian Issue: 22/2015

Problem setting. Defining an investment market as a developing system means that such a system should be an object to permanent monitoring. This assertion assumes exceptional importance in the context of providing adequate legal forms of market functioning.Recent research and publications analysis. An issue of analysis and research of problems regarding organizational and economic support of foreign investing and its certain aspects are thoroughly considered in scientific papers of D. V. Zadykhailo, V. K. Mamutov, V. M. Pashkov, O. P. Podtserkovnyi, V. A. Ustymenko, V. S. Shcherbyna, etc.Paper objective. The article objective is to analyze organizational and economic powers of foreign entities of public law regarding foreign investing and determination of forms of implementation of organizational and economic powers by Ukrainian state authorities.Paper main body. Escalation of international competition for involvement of investments, especially from the international investment market, gradually results in expansion of a list of functional working load of agencies for foreign investing. This expansion is realized due to foundation of agency representatives, especially in countries, where significant investment potential is concentrated. State authorities also apply an approach consisting in transferring certain functions to diplomatic representatives.Conclusions of the research. Some peculiar features are inherent to the investment area of Ukraine. They are as follows: ineffective investment and depreciation policy of the state; imperfectness of the legislative basis; unfavorable investment climate; legal instability, low efficiency of the economy, corruption, inadequate tax burden; undeveloped investment culture; undeveloped investment market infrastructure; absence of a program of effective cooperation with a strategic foreign investor.The main problems of investment market development in Ukraine contains: absence of a system of guaranteeing personal investment in investment funds; a considerable level of distrust of the financial system; undeveloped regional networks of a majority of asset management companies; considerable tax burden.Short Abstract for an article Abstract. The article researches experience of foreign investment involvement in countries of Central and East Europe and Ukraine. The author indicates that there are insignificant rates of direct investment involvement in Ukraine. The current amount of the direct investments meet neither demand of the domestic economy nor potential of foreign investors. The author proves that outcome principles of the state investment policy should be legal confirmation of the investment market as an object of the state investment policy.The article researches experience of foreign investment involvement in countries of Central and East Europe and Ukraine. The author indicates that there are insignificant rates of direct investment involvement in Ukraine. The current amount of the direct investments meet neither demand of the domestic economy nor potential of foreign investors. The author proves that outcome principles of the state investment policy should be legal confirmation of the investment market as an object of the state investment policy.

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Становлення господарського права та законодавства України на початковому етапі її незалежності

Author(s): Yulia Ostapenko / Language(s): Ukrainian Issue: 22/2015

The article is dedicated to the problem of creation and phased developmentof the economic law at the initial stage of market economy formation in the independentUkraine as well as to determination of the core business and law institutions created in thedetermined period. The author has analyzed outcoming juridical statements of each institutionformed during the current period of time. On the basis of the system analysis theauthor has affirmed inevitability of processes of economic law codification.

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Порука як спосіб забезпечення виконання кредитних зобов’язань: теоретичні та практичні аспекти

Author(s): O. P. Karasava / Language(s): Ukrainian Issue: 22/2015

Increasing importance of the guarantee institution in the context of binding legal relationships requires precise and fair determination of the guarantor role regarding an issue of reduction of negative legal consequences of breaking an obligation aimed at protection of rights of a creditor as well as a guarantor and a debtor, whose obligations are guaranteed. The author has considered a legal aspect of a guarantee as a way to enforce obligations. The author has determined distinctive characteristics of a guarantee. The article substantiates a view regarding necessity of more precise legislative confirmation of legal relationships of a guarantee. The author analyzes the legislation on ceasing a guarantee on account of increase of a responsibility amount, which was not approved by a guarantee.

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Систематизація законодавства України про залізничний транспорт: постановка питання

Author(s): I. M. Rudiaha / Language(s): Ukrainian Issue: 22/2015

The article is dedicated to theoretical and practical research of systematizationof the rail transport legislation, as well as to analysis of the present Ukrainianlegislative basis in the field of rail transport.

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Механізми державного регулювання господарської діяльності: постановка проблеми

Author(s): V. V. Shpakov / Language(s): Ukrainian Issue: 22/2015

The author examines issues of application of mechanisms for public regulative influence on the economic activity. The author has considered ways and forms of public regulation and substantiated the necessity of application of public influence measures.

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Удосконалення механізму господарсько-правової відповідальності у сфері економічної конкуренції

Author(s): Tetiana Shvydka / Language(s): Ukrainian Issue: 25/2016

Commitment of violations of the legislation on economic competition protection harms the economy as well as the Ukrainian society. The misuse of the monopolistic position in the market, anticompetitive concerted practices, and other displays of business entity discrimination cannot be resisted by legislative prohibitions only. The system of protective measures of the legal influence (sanctions) applied to lawbreakers as an important element of legal support of resistance to infringements of the antitrust legislation solves this problem. Timelessness of revealing, cessation of such violations, and application of the responsibility being adequate to consequences caused by the violations are very important aspects of the examined problem.

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Договірно-правові форми інноваційного інвестування

Author(s): K. Vrublevska / Language(s): Ukrainian Issue: 25/2016

The author considers topical problems of contractual and legal forms of innovative investing in the context of formation of the complex institution of economic law, namely the innovative investing institution as one of the most advanced matters of legal support of the economic activity in Ukraine. The author thoroughly analyzes the contractual forms such as commercial concession (franchising) and a license agreement.

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Nadzorcze soft law nowej generacji w sektorze bankowym w świetle art. 133 ust. 1a ustawy – Prawo bankowe

Author(s): Magdalena Federowicz / Language(s): Polish Issue: 38/2017

The aim of this paper is to find an doctrinal answer to the normative foundation of the supervisory soft law on the Polish banking sector and its legal consequences in the process of the supervisory soft law application, its content and influence, which it should have and play a significant role on the banking sector and especially to the interpretation and functions of the provisions based in Art. 133 sec. 1a of Polish Banking Law, comparing to the provisions based in Art. 137 par. 5 of Polish Banking Law. In this paper will be also analysed the recommended pattern of the credit institutions set out in recommendations and guidelines of the European Banking Authority.

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The Uniform Commercial Code z 1952 r. w amerykańskim dyskursie akademickim lat pięćdziesiątych XX wieku

Author(s): Edyta Sokalska / Language(s): Polish Issue: 38/2017

The Uniform Commercial Code of 1952 is an example of set of laws governing commercial transactions. The initial draft was proposed by the American Law Institute and National Conference of Commissioners on Uniform State Laws, but each legislature was able to modify the provisions. The Code itself was drafted by some top legal scholars. During the process of drafting The Uniform Commercial Code there was a vivid discussion and there were presented different points of view concerning the need of such a code in the American legal system. Especially the dialogue between Professor of Law – Frederick K. Beutel and the proponents of the code was in the focus of attention. It is significant hat in most American law schools commercial law courses are structured around the Articles of the Uniform Commercial Code. The knowledge of the provisions is essential for the practice of commercial law. It should be also underlined that certain fragments and provisions of the Uniform Commercial Code have been highly influential outside the United States.

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Klauzula rebus sic stantibus w prawie zamówień publicznych a problematyka stosowania kar umownych

Author(s): Renata Tanajewska / Language(s): Polish Issue: 38/2017

Investments in urban construction and road construction are mainly implemented under the law of public procurement law. The liability for breach of the public procurement procedure is based on the provisions of the law on public finance, tax law or even penal law. The basic problematic issue is determining why there is a strong contractual rigor in the execution of public contracts, and for what reasons the parties cannot be able to change the content of the contract? Consequently, there is another legal problem, is it possible to apply the clause rebus sic stantibus in public procurement law and to what extent? The subject of the analysis of this article was the results of the inspection of the Supreme Chamber of Control in the field of construction of road infrastructure in the years 2010–2016 and case law concerning the amendment of the contents of the contract concluded as a consequence of the application of the law on public procurement law.

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Ochrona unijnych finansów – czyli ciąg dalszy batalii o urząd Prokuratora Europejskiego

Author(s): Szymon Kisiel / Language(s): Polish Issue: 38/2017

The article is devoted to the issue of protection of European financial interests. The author focuses on the instruments which functioned in the past, across the present ones, finishing on those which are going to be established. The main objective of the author is to analyze the work on the creation of the European Public Prosecutor’s Office. It is worth mentioning that this work has been started a long time ago and that one of the deadlines for the implementation of the new EU Institution was January 2015. Despite the good direction that will guarantee greater security for the EU financial system, the concept of the EU Public Prosecutor’s Office has not yet materialized. In the first part of the article the author presents current forms of counteracting abuses and irregularities against the EU budget. On this occasion the role of such bodies as UCLAF and OLAF were discussed, as well as the formal and legal basis for their functioning. The practical aspects and problems with which the two entities were encountered in the current activity were also mentioned. The author quotes statistical data which illustrates the activity of both institutions and the scale of financial losses harming the EU budget. In the second part, the author describes in details the vision of the European Public Prosecutor’s Office. The foundation for creating a new institution is Art. 86 of the Treaty on the Functioning of the EU. According to this article, the Public Prosecutor’s office is to be built on the basis of Eurojust structures and is about to draw the UCLAFs and OLAFs experiences. In this part, authors analizes the draft of European regulation on the establishment of the European Public Prosecutor’s Office. It characterizes the planned, future structure, competences and functioning aspects of this new institution. The last part is devoted to a number of dobts and concerns about the process of creating the EPPO. There are many discrepancies between Members States according to the form of the new institution.

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Злоупотреба поверења у обављању привредне делатности – (не)успели покушај осавремењивања кривичног права

Author(s): Natalija Lukić,Jelena Lepetić / Language(s): Serbian Issue: 2/2018

In this paper the authors analyse abuse of trust in the economy, a criminal offence recently introduced into Serbian criminal law legislature. Taking into account the relevant provisions of laws in regards to companies, the authors refer to the scope of application of this crime and thoroughly explain categories of persons that may be considered representatives and trustees as perpetrators. The authors conclude that this criminal offence is imprecisely defined, considering the fact that the criminal law legislator does not prescribe the action of crime. Therefore, they suggest that this element of criminal offence should include abuse of representative powers and breach of duties to companies. Finally, the authors devote attention to the consent of the injured in relation to this criminal offence and to high-risk activities which, under certain conditions, may also exclude the existence of this criminal offence.

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Привлачност ПДВ-а у контексту економске кризе

Author(s): Mileva Anđelković / Language(s): Serbian Issue: 64/2013

In this paper, the author explores the ever-increasing application of Value Added Tax (VAT) in the process of fiscal consolidation which is underway in some European states. The states’ need to reduce the budget deficit serves as an incentive for raising the VAT rate. The author points out that such a change in tax policy may eventually result in unfair taxation practices. First, the author provides a brief explanation on VAT as a general tax on consumption, with specific reference to the long-standing dilemma: whether it is better to tax revenues or consumption. Further on, the author elaborates on the possible role of this tax in the process of fiscal consolidation in some European states. In the final part of this article, the author analyzes the relationship between raising the VAT rate and providing for fairness in taxation practices. In order to overcome the financial crisis and their poor fiscal position, a large number of European countries have resorted to introducing radical saving programs, which are most likely to aggravate the prospects for their economic recovery. These measures have been accompanied by more or less substantial changes in their tax systems. Due to their flexibility, taxes on consumption are more suitable instruments of fiscal policy than other taxes but their use has certain limitations because they enhance inflation, reduce demand, encourage unfair distribution of tax burden and increase taxation costs. Applied as an instrument of fiscal consolidation, the VAT demonstrates both positive and negative characteristics, which yield quite different effects in the circumstances of current financial crisis than they would normally generate in regular economic conditions. Taking into account the indisputable abundance of revenues stemming from the VAT, fiscal policy makers may easily predict the desired revenue growth. However, the reality of such expectations is disputable primarily because of the reduced general consumption, which comes as a result of salary cuts or loss of employment by a large number of people. Being the most important VAT features, abundance and flexibility are less prominent in the circumstances of weak economic standing due to the reduced consumption power of tax payers. On the other hand, the wider application of VAT will certainly enhance the unfair taxation practices in the European tax systems.

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Проблеми монополізації та антимонопольного регулювання на ринку інформаційних послуг і соціальних мереж

Author(s): Tetiana Shvydka / Language(s): Ukrainian Issue: 32/2018

The article is dedicated to examination of the state of markets of social media and other information services under globalization. The necessity of consideration of a problem related to monopolization of the mentioned markets and the lack of regulatory frameworks of the world monopolies of information infrastructure is all-too-obvious. It is important to determine scopes and margins of regulation of these markets, forms of the abuse of market power on the part of monopolies and the legislative basis at the supranational level.

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A problem of modernization of the current investment legislation and legislation on innovations of Ukraine under contemporary conditions

Author(s): Yulia Ostapenko / Language(s): English Issue: 32/2018

The article takes notice of the absence of a systematized approach to legislative support in the innovative and investment sectors of the economy. Systematization of the corresponding legal basis, the quality, and detailing concerned with application of certain legal means in a regulatory mechanism of legislative institutions on investments and innovations have led to a higher level of economic development. Thus, the author highlights a matter regarding conceptual approaches to amendment and modernization of the corresponding legislative institutions and ascertainment of necessary methods for fostering respective legislative processes.

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PRINCIPIUL DEZVOLTĂRII DURABILE ȘI CARACTERUL SĂU IMPERATIV PENTRU „ASIGURAREA UNEI PLANETE SIGURE ȘI STABILE”

Author(s): Mădălina Virginia Antonescu / Language(s): Romanian Issue: 34/2018

At the beginning of XXIst century, we note a complex and flexible type of order (both inter-national and global), involving thus, a multi-level approach. There are global problems needing to receive attention from all states, as the right of the planet to be protected against any aggression, the right of future generations to enjoy the benefits of living on a stable, prosperous and safe planet, the right to durable prosperity, and other legal extensions of the so-called category of solidarity rights. In the framework of this tension between the neo-westphalian trend and the globalist one, we can pledge for the benefits of recognizing that the principle of sustainable development has an imperative erga omnes character, due to the necessity of protecting human civilization and the planet Earth from augmentation of polluting industries all around the world and from other dangers to the health of this planet and to its inner capacity of supporting a prosperous human life. Principles of international law are remaining, in this perspective, as paramount for defining the main directions of the international XXIst order, due to the nation-states revival and to the sovereignty concept.

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ROLUL STATULUI ÎN CADRUL ECONOMIEI DE PIAȚĂ

Author(s): Petre Lăzăroiu,Ioniță Cochințu / Language(s): Romanian Issue: 28/2016

The free access of a person to an economic activity, free initiative and the exercise of those in according to the law are granted. Therefore, the fundamental right concerning the economic freedom, as it is mentioned at the constitutional level, is in a short form, covering only the fact that the free access of the person to an economic activity, free initiative and their exercise are granted. The constitutional legislator let the possibility to the ordinary legislator to regulate the conditions and the limits within this freedom can occur by the intermediate of diverse normative acts. An important role concerning the economic freedom had been played by the Constitutional Court who, beside it’s role of constitutional guardian, has also the meaning of contributing to the creation of law using interpreting methods. In this context of the present paper, we would like to underline the role of the state in the market economy as it was interpreted in the Constitutional Court jurisprudence.

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Cechy normatywne cła jako daniny publicznej w polskim i unijnym prawie celnym

Author(s): Adam Drozdek / Language(s): Polish Issue: 23 (3)/2018

The aim of the presented article is to order and systematize features of customs duty as a public levy resulting from Polish and European Union customs law. The European Union’s law is a special type of a legal system characterising with an autonomous position in comparison with other legal systems. It comprises a set of provisions covering legal regulations initially drawn up by European Communities and then, by the European Union, as well as, partially by the Member States themselves. Independence of the European Union’s law also results from the fact that this law has own system of sources of law, own procedures of enactment, interpretation as well as application control and protection thereof. Transferring to the European Union some of its sovereign laws, Poland authorised the European Union authorities to independently adopt customs law. A characteristic normative feature distinguishing customs in Polish and European Union customs law consists in collecting customs by duly authorised customs authorities from entities importing and exporting goods through the customs area’s borders. Regulations included in the domestic customs law provisions indicate that it is a public levy that is stipulated and collected on the grounds of customs tariff from entities conducting foreign trade in goods in connection with transferring goods through the customs border of a state or a group of states constituting a customs union. Customs duties’ collection is related with import or export of goods subject to customs duties.

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The “New” Paternalism in Consumer Credit Regulation: When, Why, and How?

Author(s): Ana Odorović / Language(s): English Issue: 4/2018

The paper provides a critical assessment of a new approach to consumer credit regulation called the “new” paternalism, the aim of which is to protect consumers from various biases identified within behavioral economics, while at the same time preserving the consumer’s freedom of choice. Consumer credit contracts, in particular credit cards, have evolved into an ever-growing complexity of contract terms, with a tendency to accelerate the short-term benefits and postpone the longterm costs for consumers arising out of the contract. Since both rational-choice and behavioral economics theory provide a rationale for such a contractual design, the first part of the paper confronts their predictions to argue that they are to some extent complementary and that a consumer credit regulation should not strictly align with one or the other, but rather reconcile them. The paper then discusses in more detail the features and tools of the regulatory approach of the “new” paternalism, applicable more broadly to consumer protection and encompassing three closely related ideas of libertarian, asymmetrical and weak paternalism. It also compares the theoretical foundations of the “new” paternalism to the “old” paternalism, on the one hand, which implies protecting consumers by effectively making choices instead of them, and “laissez-faire” approach, on the other hand, which entirely neglects consumers’ behavioral biases. Finally, the paper addresses the issue of which regulatory tools of the new paternalism are pertinent to the credit card market, and further considers their expected effectiveness and limitations.

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Rozwój koncepcji treści ekonomicznej (substance) w Stanach Zjednoczonych

Author(s): Joanna Rusek / Language(s): Polish Issue: 1/2017

An important challenge of the modern tax law is efficient countering of tax avoidance. One of the ways of tackling this problem is investigating and examining of taxpayers’ activities from the perspective of their economic substance. Especially interesting from this perspective seem the American judicial doctrines, in particular the economic substance doctrine and the business purpose doctrine. An analysis of the abovementioned doctrines indicates that the concept of economic substance should be interpreted in the context of a change (improvement) of the taxpayer’s economic/ financial/ commercial situation resulting from something more than an obtained tax benefit. Such change (improvement) of the taxpayer’s situation may be analyzed from two perspectives – objective and subjective. The objective perspective concentrates on an actual change (improvement) reflected in the amount of income generated by the taxpayer. On the other hand the subjective perspective concentrates on the taxpayer’s belief that the undertaken actions were aimed at the realization of a specific business goal (generation of profit). The objective perspective as not requiring a judgement of the taxpayer’s motives (intentions) seems however more measurable and thus more feasible to apply in practice.

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