Kyiv-Mohyla Law and Politics Journal

Editorial

Roman Petrov — 2023-12-30

Editorial of issue # 8-9 / 2022-2023

Force majeure during the war. Review of juridical practice

Ruslana Abramovych — 2023-12-30

This review covers the judicial practice of Ukrainian courts of general jurisdiction related to the issue of force majeure. The question becomes especially relevant in the current war realities, in which not only the citizens of the country, but also business entities find themselves. Under the conditions of martial law, counterparties often resort to abuses, citing force majeure, and refuse to fully or partially fulfill their contractual obligations. This publication examines the main legal positions of courts of general jurisdiction on this topic.

Juridical review regarding maladministration of crude palm oil exports in Indonesia

Faisal Santiago — 2023-12-30

This paper tracks the maladministration of CPO exports by conducting a judicial review of CPO export policies by the Ministry of Trade of the Republic of Indonesia. This study uses a normative legal analysis with a field research approach. The results of the judicial review of this study are that the policy of temporarily stopping the export of Crude Palm Oil by the government is entirely appropriate, considering that previously there was maladministration carried out by individuals at the Ministry of Trade involving palm oil entrepreneurs in three companies, the occurrence of export permits has entered the criteria for maladministration because the three companies The CPO manager does not have an export permit which causes state economic losses due to rising cooking oil prices due to excess CPO being exported.

Spyware in intelligence espionage operations as a threat to the state

Deky Rosdiana — 2023-12-30

The development of globalization has changed the pattern of war from conventional military power with trained soldiers and sophisticated weaponry to non-military state power through cultural, economic, political, and technological aspects. Warfare now dominantly utilizes technological sophistication or cyber warfare, posing a threat to national security, sovereignty, and resilience in the virtual world. This article uses a qualitative approach that refers to the meaning, concept, definition, characteristics, metaphor, symbol, and description of a qualitative study, conducted through examining various social arrangements and groups or individuals in a social setting. The data collection technique used here is only a literature review or a descriptive review of previous research sources and other secondary data. In terms of Cyber Espionage issues, updating the law can be a step towards providing a legal basis for law enforcement against Cyber Espionage perpetrators as a legal breakthrough to ensnare the perpetrators. Cyber intelligence's role as a "new" form in the governance of national intelligence can become clearer and avoid potential issues. Attention to these issues should be accompanied by solutions in preparing competent human resources, infrastructure, funds, and technology to make cyber intelligence an asset for national and state security.

The liability of online intermediaries under European Union law

Daria Bulgakova — 2023-12-30

This research explores the complex and multifaceted issue of online intermediary liability. It illuminates the challenges arising from the absence of uniform regulations and the need for a collaborative system between online intermediaries and rightsholders. Specifically, the article scrutinizes the liability of online intermediaries under European Union law for violations of legal interests in online content. It strives to balance intermediary liability frameworks and fair competition, drawing attention to the relationship between specific provisions and the concurrent regime outlined in the e-Commerce Directive. Moreover, the article evaluates the consistency of liability frameworks for online intermediaries and their compliance with market functioning rules under the Trade Secrets and the Unfair Commercial Practices Directives. Furthermore, the article consults the consequences of the EU Directive on Copyright in the Digital Single Market, which holds online user-generated content platforms directly responsible for infringing content. And, unlike the original draft, the final version of this directive does not impose general monitoring obligations. Nevertheless, online intermediaries may need to implement filtering measures to avoid liability for unauthorized communication of copyright-protected works to the public. The writing also considers the impact of a prior legal framework, and the Digital Service Act established to address the issue of online intermediaries being held liable for any illegal information disseminated through their platforms. The research underscores the innovative features of the Digital Services Act, acknowledging the challenges of creating a practical legal framework striving to avoid conflicts with relevant laws. Therefore, this paper sheds light on the complex nature of online intermediary liability to the EU approach accordingly.

Ukraine’s efforts against money laundering since the Russian invasion in February 2022

Alexander Blümel — 2023-12-30

The shifting environment of money laundering, exacerbated due to the war, calls for scrutiny of Ukraine's reaction to this fundamental challenge. This paper thus helps widen the knowledge about how Ukraine is trying to fight against money laundering and protect financial system integrity by shedding light on legislative transformations and their results in a much more complex geopolitical setting. Therefore, it provides an overview about the main elements of Ukrainian anti- money laundering policy and an analysis of reforms passed in this sphere of law since the full-scale invasion of Russia into Ukraine 2022. It focuses on the main changes of legislature in terms of anti-money laundering and terrorism financing prevention as well as first identifiable results of the new legislatorial and executive changes.

Intelligence as an instrument of state power and its use in international politics

Vadym Chernysh — 2023-12-30

The article makes an attempt to theoretically substantiate why intelligence is an independent instrument of state power, its common and distinctive features with other instruments of power. The paper also provides historical examples of the use of intelligence by various states to influence the behaviour of other states, as well as various approaches used therein.
Some features of the use of the intelligence instrument of power by states in the conditions of the existence of bipolar and multipolar political systems are also highlighted in the article. It also draws attention to the incentives for the choice of intelligence as an alternative to other instruments of power in the context of the limiting impact of global collective security systems, in particular the United Nations.

Temporary suspension of the public officials by the President of Ukraine: the established practice and new challenges

Stepan Berko — 2023-12-30

This article analyzes the provisions of the Law of Ukraine On the Legal Regime of Martial Law, adopted after the Russian Federation’s full-scale invasion of Ukraine’s territory. The author proves that the second clause of Article 11 of the mentioned law, granting the President of Ukraine powers to suspend public officials during martial law, contradicts the Constitution of Ukraine, whereas the latter has not vested such powers with the President of Ukraine. The author compares the suspension and the dismissal of a public official from the office and proves that the newly adopted provision contradicts the very nature and purpose of martial law. In the article, the author analyses a list of public officials to whom the adopted provision applies and argues that the only purpose the latter was adopted is to allow the President of Ukraine to dismiss public officials from their offices without proper legal grounds and the approval of others state authorities as required by the Constitution.

The role of judicial argumentation in reforming of Ukraine’s judiciary: EU membership perspectives

Volodymyr Kistianyk — 2023-12-30

The article reflects the impact of judicial argumentation on the process of reforming the judicial system of Ukraine during Ukraine’s integration into the European Union. In addition, the article points out some structural elements of the influence of judicial argumentation in the course of Ukraine’s EU-integration.
This paper emphasizes the essential participation of European institutions in raising the quality level of judicial argumentation in Ukraine. These institutions can be divided in two big groups: EU-based organizations (European Commission, Eurobarometer, European Commission for the efficiency of justice (CEPEJ), Court of Justice of the European Union) and the organizations in the Council of Europe (European Court of Human Rights, the Venice Commission and the Consultative Council of European Judges (CCJE)). Moreover, the author gives examples when Ukrainian judicial institutions raise the need to enhance the quality of judicial argumentation.

Legal interpretation of professional sport as a prerequisite for defining the theoretical foundations of its legal regulations

Stanislav Demianiuk — 2023-12-30

This article focuses on the interpretation of the terms “sport” and “professional sport”. It is emphasized that proper interpretation of such notions is important to promote clarity and precision in delineating the scope of professional sport and analyzing laws and regulations applicable to this sphere. The author's consolidation of the creative interpretations reveals that “professional sport” embodies a complex network of profit-based social relations, intricately tied to a publicly engaging performance executed by paid full-time athletes. This performance is governed by a set of rules, principles, and approaches established and controlled by specialized entities and institutions. The article concludes that this understanding can further serve as the groundwork for further research and analysis aiming to substantiate the underlying theoretical foundations of legal regulation in professional sport.