Проблеми законодавства щодо електронного документообігу та електронного підпису у публічних та приватних правовідносинах

Problem setting. Due to the rapid impact of information and communication technologies on commodity-money relations, which are in the sphere of civil turnover in Ukraine, the number of contracts concluded in electronic form is significantly increasing. The scope of electronic documents both in contractual civil law relations and in general in the relations of individuals with government agencies, courts and other public law entities has a clear tendency to expand and grow. Thus, in many areas of commodity-money exchange, the interaction of executors and customers (clients) has reached a completely new organizational and legal level and is carried out exclusively online, because the territorial remoteness and implementation of quarantine measures against COVID-19 is not always possible to sign an agreement on paper. These statements determine the relevance of the chosen research topic. The object of the study is the civil legal relationship using a mobile digital signature (Mobile ID). The subject of the research is the advantages and disadvantages of electronic identification with the use of mobile digital signature in civil circulation. The state of research of the problem. Such scientists as M. I. Anokhin, Yu. V. Borodakiy, N. P. Varnovsky, V. M. Glushkov, M. V. Denisova, M. M. Dutov, A.V. Kobets, G.I. Kupriyanova, A. Matvienko, V. A. Onegov, I. A. Semaev, V. A. Shakhverdov, M. N. Tsyvin, V. V. Yashchenko and others. The target of research is to study the features of the legal regulation of electronic digital signature of a person and his legal status with the analysis of issues arising from the use of such a signature in civil turnover, the formulation of proposals for their solution. Article’s main body. The possibility of using mobile digital signatures in the document flow is provided by the relevant regulations. The Law of Ukraine “On Electronic Digital Signature” adopted on May 22, 2003, defines the legal status of an electronic digital signature and regulates the relations that arise when using an electronic digital signature. This Law does not apply to relations arising from the use of other types of electronic signatures, including digitized images of handwritten signatures. At the same time, the provision of Part 3 of Article 207 of the Civil Code of Ukraine on the use of facsimile reproduction of the signature by means of mechanical, electronic or other copying, as well as electronic signature or other analogue of handwritten signature with the written consent of the parties, which must contain samples handwritten signatures. The legislative base on electronic signatures is currently constantly growing, a passport of a citizen of Ukraine in the form of a card with a contactless electronic carrier (and an electronic digital signature) has been introduced into the continuum of indirect electronic reality. The Law of Ukraine "On Electronic Commerce" of September 3, 2015 regulates the legal regulation of the field of electronic commerce in Ukraine, defines the procedure for electronic transactions with the use of information and telecommunications systems. The legal basis for the provision of electronic trust services, including cross-border, the rights and obligations of the subjects of legal relations in the field of electronic trust services are subject to the Law of Ukraine "On electronic trust services" of October 5, 2017. The number of diverse legal material causes some difficulties in the practical application of a mobile digital signature. Differences in national terminology, which are contained in different sources, as well as existing legal gaps determine the relevance of this problem and require appropriate research. Conclusions and prospects for the development. The scientific novelty of the study is a comprehensive consideration of this topic, namely: the pros and cons of using a mobile digital signature, making suggestions for improving existing legislation with concepts and functions related to the use (Mobile ID).

On the basis of the analysis of the normative and legal regulation of health care in Ukraine, it was possible to establish that the adoption of the Act of Independence at the extraordinary session of the Verkhovna Rada of the Ukrainian SSR on August 24, 1991 prompted the young state to adopt normative and legal acts, including those that should to ensure the realization of citizens’right to health care, as well as to develop new terms of payment for medical workers of health care institutions in the conditions of the market economy existing at that time. During the first year of independence, a number of regulatory and legal acts were adopted, which related to raising the wages of health care workers, combating the spread of diseases caused by the human immunodeficiency virus, as well as legal and social protection of people living with such a virus. Attention is drawn to the first Regulations on the Ministry of Health (1992) and the adoption of the Law of Ukraine «Basics of the Legislation of Ukraine on Health Care», which despite the fact that certain provisions of this legislative act do not fully meet modern requirements, it is laid the foundations of the protective function of the state, ensured the guarantees of citizens’right to health care and their protection. It is emphasized that the adoption of the Constitution of Ukraine marked a new stage in the development of legal relations in the field of health care, which later found its continuation in normative legal acts that regulate relations in the field of health care. It is emphasized that the research carried out on the legal regulation of social relations in the field of health care in Ukraine gave reasons to find out that such regulation has a complex, interdisciplinary nature, which is due to a wide range of public and private legal relations, united by the common goal of realizing the right of each of a person for health care as the highest social value. It is noted that the current stage of legal regulation is characterized by the implementation of measures for the ability of the health care system of Ukraine to operate under martial law conditions. The author’s periodization of the formation and development of health care in Ukraine is proposed, which includes five main periods of this process.

The article examines the phenomenon of legal identification as a key element of the legal regulation mechanism. The author analyzes the content and forms of identification concerning subjects, objects, and recipients of legal prescriptions, revealing its significance for ensuring legal certainty and the effectiveness of law enforcement. Particular attention is paid to the identification of citizens and officials, including police officers, as well as identification processes concerning objects of civil rights, such as plots of land. Statistical data from judicial practice regarding disputes related to cadastral registration and the establishment of land boundaries are presented. In conclusion, the necessity of forming a unified approach to identification within the legal system and improving regulatory regulation in the context of the digitization of social relations is emphasized. The research methodology includes legal-theoretical, systemic, and comparative legal approaches, analysis of judicial practice, and statistical data. The scientific novelty of the research lies in the comprehensive examination of the phenomenon of legal identification as a key mechanism of legal regulation, encompassing both subjects and objects of legal relations. The author proposes a conceptual understanding of the phenomenon of identification. The study reveals the importance of legal identification for ensuring the clarity of norm application, preventing legal conflicts, and enhancing the effectiveness of law enforcement. Furthermore, the novelty of the research lies in substantiating the need to form unified approaches to identification and improve regulatory regulation taking into account the digitization of social relations, which has not previously been comprehensively addressed in domestic legal science. The author's analysis shows that insufficient unification of identification procedures leads to legal uncertainty and increases the risks of disputes arising in both the public interest sphere and private legal relations.

The paper analyzes the theory and methods of the legal regulation of platform relations in the Russian law, which is determined by the characteristics, role, functions, and tasks of the branch of law, allowing the combined use of incentives and restrictions, direct and indirect enforcement methods. The contemporary economy has actually become a platform economy; digital platforms have become a public institution, they simplify and improve public and private legal relations. To analyze platform relations and develop their legal regulation techniques, we propose to use a cybernetic approach that studies legal management in complex dynamic systems to optimize and improve the management processes in solving specific legal problems. The paper is aimed to study existing doctrinal approaches to the definition, structure, and classification of legal frameworks with subsequent modeling of a legal framework for platform relations based on the cybernetic approach. The paper is structured based on its aim and includes sections on classification approaches to legal regulation; characteristics, essence, and purpose of legal frameworks; classification and structure of legal frameworks; concept and classification of platform relations; concept and characteristics of the legal regulation of platform relations; functions of the legal framework for platform relations. Based on the definitions of the legal regulation, digital platform, platform relations, and legal framework of platform relations developed by the authors, they propose a classification of platform relations based on their openness, type of mediation, features, functions, and characteristics of the proposed legal regulation of platform relations. In conclusion, the authors identified two modeling approaches to legal regulation of platform relations, including the approach providing for the general and special legal regulation and recommended for further research.

This article considers the theory of civil law means and its impact on the regulation of social relations between the subjects of law. The latter have been showing a growing interest in the civil law means regulating both private (horizontally) and public legal relations (characterized by the structure of power and subordination). The focus of research was also on the activity of the participants of civil transactions as a major factor determining the high demand for civil law means in the Russian Federation and their further advance under the conditions of continuously transforming legal relations. Based on the standards of law, the effectiveness of civil law means for overcoming the difficulties arising in the legal relations between the subjects was demonstrated. The conclusion was made about the blurred application of civil law means and its dependence on the branch of law, thereby indicating a gradual transition in the regulation of legal relations to the model of inter-branch borrowing.

The study investigates the legal nature of the category of "public interest" in private law relations from the standpoint of a systematic scientific approach to law in the countries of post-Soviet society in the modern period. The study states the affiliation of public and private law to the means of achieving the purpose of the law: the recognition of a person, their rights and freedoms as the highest social value of the state. The unsuitability of the theory of the branch belonging to public law has been proved using the universal criterion of separation: the use of the category of "public interest" in the development of the subject and method of the branch in private legal relations. It is concluded that the division of law into private and public is inconsistent in terms of their differentiation of the criterion "method of protecting the rights of their participants", which is activated only after the violation of the latter, while subjective law also exists before the violation, during the existence of regulatory legal relations, and it is the subjective law that forms the affiliation to the relevant industry. During the study, signs of public interest as a legal category were formed. In addition, modern features of public interest as a legal category were outlined from the standpoint of a systematic approach: the general nature of public interests; connectedness with large-scale involvement; recognition by the state and the provision of the law; the possibility of their implementation through measures of state power.

The publishing house of the Masaryk University in Brno has published a very interesting work of the Czech authors containing sixteen studies devoted to selected problem of the Czech water law in three subject areas: 1) water protection in land use, 2) water in private legal relations, 3) protection of water quality. The aim of this paper is to present basic thoughts of the Czech authors and an attempt to estimate if they find or should find a reflection in the deliberations on the Polish water law.

The article deals with the analysis of national legislation on granting to a foreign state the jurisdictional immunities in the sphere of private legal relations in a legislation and in international documents, especially in the UN Convention on jurisdictional immunities of states and their property of 2004, the theory of international private law, and also the determination of the prospects of development of the legislation of Ukraine in this sphere. The special attention is focused on the issue of the determination of persons, who are entitled to refer for such immunities, the approaches of distinguishing of «acta jure imperii» and «acta jure gestionis», determination of the circumstances, under which the state gets immunity from enforcement measures. The role of further development of the theory of the restrictive immunity and the harmonization in the practice of the states-members in UN Convention on Jurisdictional Immunities of States and Their Property, which are the first universal international instrument in the sphere of jurisdictional immunities of states, is examined. Taking into account the modern theoretical basis of granting the immunity to the state in the private legal relations and the latest practice of states, the necessity of changing the legislation of Ukraine for using the positions of the theory for restrictive immunities by adopting a special law on immunity of foreign state, are grounded. The specificity of calling of Ukraine as the participant of the international private law to international law account is analyzed in the article. The conception of solving the problem of state immunity in Ukraine (the theory of absolute and functional immunity) has received further development and additional argumentation. It is grounded that putting into the practice the theory of absolute and functional immunity in Ukraine doesn’t favour the defence of its interests from actions of foreign courts that support the theory of functional immunity. It is suggested to ratify the European convention about immunity of states from 16.05.1972 (Basel) and bring the articles of legal acts of Ukraine into accord with principles of the theory of functional immunity. The memoir contains concrete proposals for perfection of Ukrainian legislation, which regulates relations of the state of Ukraine as the participant of the international private law and determines its status as the participant of the international private relations.

The purpose of the study. The article examines the legal mechanism that ensures the legal significance, reliability (security) and legal consequences of operations carried out by individuals and legal entities in the digital space using the electronic signature infrastructure. The purpose of the study is to analyze the legal structure and functions of an electronic signature for identifying individuals and legal entities operating remotely, certifying their identity and legal personality, as well as confirming the origin, authenticity and integrity of documents in electronic form. When comparing different legal approaches to electronic signatures, the focus is on the "hybrid" approach typical of Russian law. The specifics of legal relations with the use of a qualified electronic signature are indicated, as well as the criteria for its "reliability" provided for by law for conducting operations in digital format. Conclusions. Within the framework of the "hybrid" approach, all types and technologies of electronic signatures are recognized, but a qualified signature is considered the most "reliable" and has unconditional legal significance. It is concluded that Russian law has both technological and legal factors and criteria of reliability (security) applied to qualified signatures, including federal state control (supervision) in this area. An integral legal component of "reliability" is the responsibility of entities providing trusted services (certification centers), which includes a mechanism for risk management and compensation for possible damage. At the same time, the author considers it advisable to fix in legislation also the possibility and conditions for limiting the scope or degree of responsibility of certification centers or other persons providing services related to the use of electronic signatures.

The system of electronic document circulation in Ukraine is undergoing a long stage of formation and development.Modernization processes in state and municipal administration, activated in Ukraine in response to internal and external challenges, in the 90s of the 20th century -at the beginning of the 21st century, led to the adoption of the Law of Ukraine "On Electronic Documents and Electronic Document Management" dated May 22, 2003 No. 851-IV and the Law of Ukraine "On Electronic Digital Signature" dated May 22, 2003 No. 852-IV.These laws were developed and adopted also with the aim of harmonizing Ukrainian legislation with the norms of the European Union.The specified normative acts determined the organizational and legal basis of electronic document circulation, the legal status of electronic signature and defined the main terms in this field.However, it should be noted that the adoption of these laws did not contribute to the wide implementation of the proposed intellectual information and legal products in the field of public administration.Since the laws contained general provisions on electronic document circulation, the executive authorities resorted to using their own regulatory instructions during the exchange of electronic documents.In addition, the necessary bylaws, which would generalize and systematize the procedure for applying the document circulation system between participants in legal relations, were not developed and approved by the authorized bodies of the executive power.The imperfection of legislation in this area, mistrust of new work methods and means of communication, especially in state and local self-government bodies, as well as the lack of appropriate certified technical software solutions for their activities, is psychological and the technical unpreparedness of personnel for working with electronic documents, as well as the reluctance to implement transparency and openness in the activities of state authorities, held

The recognition of electronic signature and electronic message creates many legal problems in its application in the different law systems (ex: Automatic Teller Machines, Odette, ...).The electronic signature could be declared inadmissible before the Courts; even if declared admissible, the parties will still have to demonstrate its evidence value before a judge, not aware of the technique and who therefore will be suspicious. In fact, the electronic signature, even if so far ignored by the lawmaker, offers a guarantee of quality and certitude unrivalled by the manuscript signature.Nevertheless, if legal texts are unsuited to reality, a simple concealment of these texts is not an adequate answer to the problems faced. Therefore some legal modifications must be done.Jurists are aware of this necessity: International Institutions both public and private are now fighting to encourage the recognition of standard norms in specific areas (customs, banks, ...).What are the legal requirements related to the definition of the traditional signature? How can the definition of an electronic signature fulfill these legal requirements? From the legal point of view, which lessons could be drawn from the comparison between the two types of signature? What is the technical impact of the norms proposed by International Institutions (UNCID) about ETD (Electronic Transfer of Data)? These are some of the questions which will be dealt within the context of this paper.

Graphene quantum dots (GQDs), derived from functionalized graphene precursors are graphene sheets a few nanometers in the lateral dimension having a several-layer thickness. They are zero-dimensional materials with quantum confinement and edge site effects. Intense research interest in GQDs is attributed to their unique physicochemical phenomena arising from the sp2-bonded carbon nanocore surrounded with edged plane functional moieties. In this work, GQDs are synthesized by both solvothermal and hydrothermal techniques, with the optimal size of 5 nm determined using high-resolution transmission electron microscopy, with additional UV-Vis absorption and fluorescence spectroscopy, revealing electronic band signatures in the blue-violet region. Their potential in fundamental (direct electron transfer) and applied (enzyme-based glucose biosensor) electrochemistry has been practically realized. Glucose oxidase (GOx) was immobilized on glassy carbon (GC) electrodes modified with GQDs and functionalized graphene (graphene oxide and reduced form). The cyclic voltammetry, differential pulse voltammetry, and electrochemical impedance spectroscopy are used for characterizing the direct electron transfer kinetics and electrocatalytical biosensing. The well-defined quasi-reversible redox peaks were observed under various electrochemical environment and conditions (pH, concentration, scan rate) to determine the diffusion coefficient (D) and first-order electron transfer rate (kET). The cyclic voltammetry curves showed homogeneous ion transport behavior for GQD and other graphene-based samples with D ranging between 8.45 × 10−9 m2 s−1 and 3 × 10−8 m2 s−1 following the order of GO < rGO < GQD < GQD (with FcMeOH as redox probe) < GOx/rGO < GOx/GO < HRP/GQDs < GOx/GQDs. The developed GOx-GQDs biosensor responds efficiently and linearly to the presence of glucose over concentrations ranging between 10 μM and 3 mM with a limit of detection of 1.35 μM and sensitivity of 0.00769 μA μM−1·cm−2 as compared with rGO (0.025 μA μM−1 cm−2, 4.16 μM) and GO (0.064 μA μM−1 cm−2, 4.82 μM) nanosheets. The relatively high performance and stability of GQDs is attributed to a sufficiently large surface-to-volume ratio, excellent biocompatibility, abundant hydrophilic edges, and a partially hydrophobic plane that favors GOx adsorption on the electrode surface and versatile architectures to ensure rapid charge transfer and electron/ion conduction (<10 ms). We also carried out similar studies with other enzymatic protein biomolecules on electrode surfaces prepared from GQD precursors for electrochemical comparison, thus opening up potential sensing applications in medicine as well as bio-nanotechnology.

In the article, the author examines the problem of the impact of technological changes on the legal regulation of public relations, namely the development of digital technologies, how significant such an impact turned out to be and whether, in this regard, significant changes in the principles and mechanisms of legal regulation are required. It is asserted in the article that the problem how to adapt existing legal forms in order to address inevitable changes in public relationships (does not matter what the cause of these changes is: the so called “digitalization” or something else) may be relatively easily resolved. What we need to do is to segregate those aspects of the factual side of relationships in question that should have legal consequences from the rest, that is from those aspects that may be ignored by law. In order to illustrate this thesis the author considers two examples: the semiconductor chip protection and the electronic signature as a way to identify an entity who expressed a will. The author comes to the conclusion that the existing legal instruments for regulating the emerging new factual relations are sufficient, but they must be used correctly. The author gives examples of such law enforcement within the framework of the article.

The article examines the transformation of the copyright protection system in the context of digitalisation, which directly correlates with the contemporary understanding of the human right to free, yet authorised, use of the results of intellectual activity. It substantiates the thesis that the intensification of online communications and the limited effectiveness of classical legal instruments in counteracting all forms of digital piracy significantly increase the risks of violations of the human right to authorship and fair remuneration. In this regard, the protection of human rights in the digital environment acquires particular relevance as an integral component of national legal security. The study outlines the role of technical means of copyright protection as an autonomous yet integrated element of a multi-level legal security model. It has been established that the contemporary information environment, shaped under conditions of network-based content distribution, transforms the architecture of legal protection of the results of intellectual activity. In this context, it is substantiated that the implementation of preventive technical mechanisms constitutes an essential prerequisite for ensuring legal security and legal certainty within the already established information environment. Special attention is devoted to digital watermarks as a preventive instrument capable of ensuring proper protection of human rights through the identification of sources of unauthorised reproduction and distribution of intellectual property objects, as well as through the fixation of authorship. The content of digital marking is revealed as a technological mechanism for implementing the human right to the protection of creative works; its technological nature, operating principles, and effectiveness criteria are characterised in the context of the dynamic evolution of digital distribution. The research also focuses on the electronic digital signature as a tool for establishing information trust and legal certainty, contributing to the authenticity and integrity of electronic transactions and ensuring the human right to secure and reliable electronic document circulation. It is emphasised that its regulatory framework creates additional guarantees for the protection of human rights in the sphere of digital legal relations. The article concludes that the current national model of copyright protection is acquiring a universal synergistic character, in which technological instruments and law interact to enable intellectual activity and to ensure effective protection of the human right to authorship under conditions of digitalisation.

Блокчейн у системі охорони здоров’я: проблеми правового забезпечення