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Revista Jurídica Portucalense/Portucalense Law Journal
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Open Access journal
ISSN (Print) 2183-5799 - ISSN (Online) 2183-5705
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Editorial RJP - Nº 34 (2023)
- Authors: Mónica Martinez de Campos
  Pages: 1 - 5
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ed
Derivative Claim in the System of Remedies for Corporate Legal Relations
- Authors: Anatoliy KOSTRUBA
  Pages: 6 - 23
  Abstract: Corporate law has a lot of gaps and shortcomings in the legal doctrine to date. Therefore, it is important to find these shortcomings and propose solutions to eliminate them. The topic of this research includes a derivative claim which ensures the restoration of any person's rights and interests as a party to corporate legal relations. The theoretical and methodological basis includes dialectical, historical, and comparative methods used to study the establishment, development, and functioning of economic entities. The study identified key trends that have emerged in the area of redressing corporate rights, as well as the advantages and disadvantages of applying a derivative claim and the efficiency of the system for redressing the rights of subjects of corporate legal relations. Based on the analysis of the provisions of the world current legislation and experience describing the development of corporate legislation and corporate legal relations, the study identified main trends that have developed in this area, as well as the positive and negative aspects of the application of a derivative claim, and the effectiveness of the system for remedying the rights of subjects of corporate legal relations.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-01
The (un)adequacy of the regulatory mechanisms for IPSSs operating in the
health area in Portugal
- Authors: Deolinda MEIRA, Susana BERNARDINO, Miguel SILVA
  Pages: 24 - 52
  Abstract: The right to health is a fundamental right, for whose fulfilment the existence of a structured and regulated health system is required. In Portugal, the State has increased its interactions with social economy entities that provide social health care, in particular the IPSS.This study aims to understand the suitability of the regulation established by law for IPSS entities providing social responses in the area of health and identify its influence on the services provided by these institutions. The empirical study was developed through qualitative methodology, using content analysis of interviews conducted with seven IPSS operating in the health area in Portugal.The results of the research carried out led to the conclusion that there is no total adequacy of the regulation applicable to IPSS entities providing social responses in the area of health, namely at the level of financial support, which is insufficient, limitations with regard to the ability to attract human resources, difficulties in terms of technological updating and expansion of their activity.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-02
Invalidity of Transactions: Analysis of Grounds and Civil Legal
Consequences
- Authors: Halyna YANOVYTSKA, Anna YANOVYTSKA, Uliana ANDRUSIV, Mariya MYKHAYLIV, Marta KRAVCHYK
  Pages: 53 - 79
  Abstract: The article examines the grounds for the invalidity of transactions under the legislation of Ukraine and their legal consequences, which are considered by the doctrine. Separate foreign legislation on problems of invalidity of transactions in other countries is analyzed. The ratio of void and voidable transactions is determined due to their legal definition and judicial practice. A study of transactions that do not comply with the law and the extent of legal capacity of the participants was conducted. Problems of non-compliance with the form of the transaction, concluding the transaction with defects of will. Attention was also paid to the distinction between fictitious and pretended transactions. In order to provide a more detailed analysis of the object of study, classifications of invalid transactions were considered. This made it possible to reveal that the legislator singles out fictitious and imaginary transactions in a separate group, namely transactions with flaws in purpose. A comparative legal analysis of the object of study with the national legislation and a number of European countries was carried out. In particular, the legislation of Germany and the Republic of Lithuania. Judicial practice was considered to identify rules on recognizing transactions as invalid.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-03
From the Principle of Equality to the Principle of Diversity: a
reinterpretation of constitutional guidance in the Portuguese case
- Authors: João Ferreira Dias
  Pages: 80 - 91
  Abstract: The present article aims to re-read the principle of equality in Portuguese constitutionalism, considering the emergence of sociopolitical guidance that produces a de facto perspective upon the juridical interpretation. In that sense, despite the norm holding a more rigid frame, the idea of "treating as equal what is equal, and as different what is different," as a communis opinio interpretation, allows de facto policies of social justice, allowing one to ask if ex iusta causa the principle of equality is now a principle of diversity in the Portuguese constitutionalism.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-04
International experience of e-commerce taxation and its application in
Ukraine (legal aspect)
- Authors: Liudmyla TOVKUN, Mariia PEREPELYTSIA, Nataliya MARYNIV, Anastasiia OVCHARENKO
  Pages: 92 - 114
  Abstract: The relevance of this paper is determined by the fact that e-commerce is one of the elements of the digital market and is fully or partially conducted in the virtual space (the Internet), and the speed of payments has become an important requirement of modernity. The development of information and communication systems in world commerce creates new opportunities for participants in relations in this area and requires the state to create an effective mechanism for taxation of the results of their activities. The main objective of this paper is to cover the content of e-commerce, study the experience of its taxation in leading countries of the world with the possibility of adapting it in Ukraine, as well as provide proposals for improving the e-commerce taxation system in Ukraine. The following methods used to study this subject can be distinguished: dialectical method, legal cognitive method, comparative legal method, formal legal method, historical method, hermeneutical method, structural and functional method, etc. In the course of the study, the content of e-commerce was considered, the international legal and national regulatory framework for its regulation was determined, the international experience of implementing e-commerce was studied, and attention was focused on the features of taxation of e-commerce entities, the main areas and strategies for the development of e-commerce in Ukraine were analysed, and ways to improve it were proposed. The provisions that are enshrined in this paper are of practical value primarily for legal entities and individual entrepreneurs who carry out their activities in the field of e-commerce, for competent state bodies that will prepare draft amendments and additions to tax legislation and legislation that will regulate this field of activity, as well as for persons who plan to engage in this activity.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-05
The empathic genesis of the Right to Euthanasia
- Authors: Luís FONSECA, Guilhermina RÊGO, Rui NUNES
  Pages: 115 - 130
  Abstract: Euthanasia is an ancient theme that, especially since individual autonomy became the health paradigm in contemporary societies, has aroused deep reflections and declared dissensions between different socio-ideological quadrants. In turn, the relation between empathy and morality has been addressed several times over the recent centuries. Studies and opinion articles present disparate conclusions regarding this relation, mainly because a heterogeneous, nebulous and somewhat maladjusted conceptual approach to human nature has prevailed. In this article, we will argue that, considering diversity as the fundamental axiological axis of a democratic rule of law, empathy is fundamental to respond properly to the most diverse circumstances in which an ethical-legal decision is pending, as in euthanasia.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-06
Brief notes on the anthropomorphisation of artificially intelligent tax
administration and the (new) model tax management system
- Authors: Luís Manuel PICA
  Pages: 131 - 149
  Abstract: The management of the current tax system is based on a 20th century reality, as the procedures, administrative measures and normative realities are clearly based on the search for internal wealth that has been omitted or incorrectly declared by taxpayers. The new economic, social, and technological realities show that wealth is easily mobilized, almost in an instant, and its taxation must be carried out in the light of the principle of contributive capacity. However, taxpayers' resistance in taxing these realities and paying taxes means that the Law itself, the Tax Administration and administrative procedures and practices need to be reformulated in line with the new technological support realities. The use of artificial intelligence systems is an increasingly pressing reality in the various sectors of society, and this must also apply to Tax Law. However, the integration of artificial intelligence systems should be accompanied by a reformulation of the tax management system itself. Consequently, this change allows the identification of some reformulations that must also be identified, and which cannot fail to be seen within a normative systematization framework based on the dignity of the human person.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-07
The recognition of foreign sentence
- Authors: Manuel LOPES
  Pages: 150 - 185
  Abstract: the study of the aims at international as a problem of the instruments and comparative law, with the objective of understanding the Portuguese system of review and recognition of sentences. Conditions and requirements for confirmation of foreign judgment. The privilege of nationality. The role of public order in the review of foreign judgment. The defensive function of international public order. The corrective function of international public order. The recognition of foreign judgment and the connection with the law review. The mobility of competence. The possibility of suspending the review process. The binding of foreign sentence recognition. The linkage for the Member States of the European Union. The case of a foreign judgment outside the scope of the European Union. Nature, time and competence for the review of foreign judgment. The union of foreign sentence recognition.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-08
Case C-852/19, Gavanozov II: European Investigation Order and the Right to
an Effective Remedy in the CFREU
- Authors: Mário Simões BARATA
  Pages: 186 - 203
  Abstract: The European Investigation Order (EIO) was established by Directive 2014/41/EU. In 2019, the Court of Justice of the European Union (CJEU) made its first ruling on this new mechanism for judicial cooperation in criminal matters in Case C-324/17, Gavanozov. However, legal experts criticized the decision because it didn't address Article 47 of the Charter of Fundamental Rights of the European Union (CFREU). The ruling left unanswered questions for the Bulgarian Court, which prompted a new preliminary reference on the lack of legal remedies to challenge investigative measures in the EIO under Bulgarian criminal procedure law. This led to Case C-852/19, Gavanozov II, where the CJEU was more attentive to fundamental rights and determined that an EIO cannot be issued without the ability to contest the grounds and necessity of the investigation. This article aims to analyze the legal dispute in the Gavanozov II Case, including the impact of the ruling on November 11, 2021, relevant doctrine, and the applicability of Article 47 of the CFREU.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-09
The possible restitution of the damage of death and heritability of its
compensation
- Authors: Nuno SANTOS
  Pages: 204 - 216
  Abstract: The damage of death is a regime of autonomous reimbursement, named de cuius and transmitted by succession - iure hereditario - for the foreseen persons in nº 2 and 3 of the 496th article of the Civil Code.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-10
Standards for Ensuring the Legality of Covert Activities in Criminal
Proceedings Through the Prism of European Court of Human Rights
- Authors: Oksana KAPLINA, Anush TUMANYANTS, Iryna KRYTSKA
  Pages: 217 - 236
  Abstract: The article deals with the implementation of covert activities in criminal proceedings through the prism of international acts, decisions of the European Court of Human Rights. The purpose of the article is to analyse the relevant case law of the European Court of Human Rights (particularly, on the application of Article 8 of the European Convention on Human Rights in the context of covert action in criminal proceedings), and on this basis to identify the standards for conducting covert investigative actions and to determine the impact of these standards on the legislation of certain European countries. The general philosophical basis of the study was formed by axiological and hermeneutical approaches. In particular, the first one allowed to carry out a value analysis of the fundamental human right to privacy and to assess the impact of covert investigative activities in criminal proceedings on its implementation. Meanwhile, the second made it possible to apply an in-depth study and interpretation of the legal texts of the European Court of Human Rights judgments and the legislation of particular states. When building the system of covert action standards, we used the systemic and structural method, as well as the logical research method and the method of legal modelling with. The analysis of the legal positions of the ECtHR made it possible to conditionally single out the following standards for ensuring the legality of the implementation of covert activity in criminal proceedings: (1) predictability; (2) warranty against abuse; (3) verifiability; (4) exclusivity; (5) proportionality of the intervention and its expediency; (6) inadmissibility of tacit interference in the communication of some subjects.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-11
Contractual dynamics in Ukrainian civil law regulation
- Authors: Oleksandr BILIAIEV, Arsen ISAIEV, Nataliia KOROBTSOVA, Iryna PUCHKOVSKA, Victor YANYSHEN
  Pages: 237 - 256
  Abstract: The research delves into the evolving contractual dynamics within Ukrainian civil law amid European integration, quarantine measures, and martial law. Focusing on the balance between individual rights and the broader civil legal framework, the study seeks to assess the current Civil Code of Ukraine and proposes enhancements to safeguard individual rights during challenging periods, such as martial law. Various research methods were used in the study, such as analysis, synthesis, comparison, deduction, generalisation, abstraction, and formal legal research. As a result, the author has established that the current system of civil law provisions is characterised by certain shortcomings which affect certain types of activities of the subjects of these relations. The authors highlight that the process of European integration, the introduction of quarantine restrictions, and martial law in Ukraine had the most significant impact on the formation of problematic issues in the system of national civil legislation. As such, the study focuses on the general problem of regulating civil relations, namely, the legal status of a private person, as well as on specific aspects of this issue, contractual regulation and amendments to existing rules. Based on this, the author argues that the priority for addressing these issues is the development of new laws and modifications to the provisions of the Civil Code of Ukraine.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-12
The Rights to access to Information and National Security in the Ukraine
in the System of Human Rights
- Authors: Oleksandr SHEVCHUK, Ihor V. PROTSIUK, Igor V. SAMOSHCHENKO, Alisa V. PANOVA, Anastasiia O. SHAPOSHNYK
  Pages: 257 - 282
  Abstract: The article is devoted to the study of the problems of realizing the right of a person to access information in Ukraine, which is important for national security in the human rights system, its features and components, taking into account the practice of the ECtHR. The methodological basis is a set of philosophical, general scientific, special methods of scientific knowledge, which allowed the authors to determine the importance and complexity of the human right to access to public information that is important for national security and its place in the decisions of the ECtHR. The article analyzes international legal norms and standards, theoretical and legal approaches to understanding the right to access to public information under study, establishes its components, correlation with other human rights. The concept, types, principles of realization of the right to access to information of importance to national security are established. The ways of improving the national legislation regarding the implementation of the human right to access to public information that is important for national security in the context of Ukraine's European integration are proposed.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-13
Artificial intelligence as an object of civil law regulation
- Authors: Olha ZOZULIAK, Alla V. ZELISKO, Nataliia Ya. BASHURYN, Andrii A. ALBU
  Pages: 283 - 299
  Abstract: The phrase "artificial intelligence" was first used in 1956, and since then it has raised a lot of questions that still have no answer. In general, artificial intelligence is a system that simulates human behaviour at an elementary level. This is necessary so that the machine performs various tasks, and learns something new in the process of performing. Then the system will use the acquired knowledge to perform even more difficult tasks. This phenomenon is being studied by world scientists, each of whom contributes to the development of artificial intelligence. The article examines two concepts of legal regulation of artificial intelligence – the subject theory and the object theory. The author of the paper gives arguments according to which the development of civil legislation of Ukraine should be carried out according to the vector of perception of artificial intelligence as an object of civil legal relations. The rules for regulating relations on the use of artificial intelligence should be concentrated within the framework of intellectual property law, IT law and consumer legislation.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-14
The regime of juridical protection of national minorities in Europe: the
Council of Europe’s Framework Convention for the Protection of National
Minorities
- Authors: Pascoal PEREIRA
  Pages: 300 - 324
  Abstract: The goal of this article is to present the current model of national minorities’ juridical protection in Europe. The Council of Europe is at the centre of the normative and legal production aimed at protecting these communities. The first international convention on the protection of national minorities was elaborated within this organization, the Framework Convention for the Protection of National Minorities. Its inception, its content and its monitoring system will be analyzed in this article.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-15
State Control Mechanisms as Means of Improving the Quality of Public
Services of Local Self-Government Bodies
- Authors: Vitalii KRUHLOV, Nataliia VOLKOVA, Yevgen KRASNYKOV, Iryna ALIEKSIEIENKO, Larysa SOKHATIUK
  Pages: 325 - 345
  Abstract: The article deals with the state control mechanisms and their role in improving the quality of public services provided by local self-government bodies. The aim of the article is to identify key state control mechanisms, opportunities for improving the level of public services of local self-government bodies, and provide recommendations for improving the system of state control. Different state control mechanisms were studied, including inspections, performance evaluation, financial audit, quality standards, legal oversight, and citizen feedback mechanisms. Contextual analysis, comparison, and graphic methods were used as research methods. Satisfaction with services in the EU countries was determined by different areas of public services. The study emphasizes the importance of state control in promoting transparency, accountability, and continuous improvement in local government service delivery. The results of the study demonstrate ways of optimization of state control mechanisms by public authorities to improve the overall quality of public services. Attention is focused on the need for effective state control to increase the level of satisfaction and well-being of citizens at the local level. A model of comprehensive implementation of state control mechanisms over the quality of public services of local self-government bodies was developed.
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.ic-16
Articles 417, no. 4 of the C.P.C. and 135 et seq. of the C.P.P.: different
"strains" of the same "means of obtaining evidence": reporting bank
movements in Portugal
- Authors: Gil MOREIRA DOS SANTOS
  Pages: 346 - 379
  Abstract: Processo: Pº 4619/20.5T8VNG.P2 Porto - Tribunal da Relação, Decisão Sumária, de 2023.07.05 Dra. Anabela Dias da Silva Proc. nº 13451/20.5 T8PRT-B.P1 Comarca do Porto – Juízo Local Cível do Porto – Juiz 6 Reclamação para Conferência Relator: Eduardo Rodrigues Pires Adjuntos: Desembargadores Márcia Portela e João Ramos Lopes
  PubDate: 2023-12-29
  DOI: 10.34625/issn.2183-2705(34)2023.jur

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