Legal regulation of social and legal protection service in ukraine V. Pashinsky Candidate of Legal Sciences icon

Legal regulation of social and legal protection service in ukraine V. Pashinsky Candidate of Legal Sciences




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LEGAL REGULATION OF SOCIAL AND LEGAL PROTECTION SERVICE IN UKRAINE
V. Pashinsky

Candidate of Legal Sciences,

assistant professor of legal support

IA Svystilnyk

Lieutenant Colonel Justice

students of the National University of Defense of Ukraine

Ivan Chernyakhovskogo
Statement of the problem . Currently flawed and outdated regulatory framework that regulates the social and legal protection of servicemen, which is based on the Law of Ukraine "On Social and Legal Protection of military personnel and their families" of 20 December 1991 [1 ] does not provide real social and legal protection of servicemen and their families, it requires analysis and improvement.

Analysis of recent research and publications. The issue of social and legal protection of servicemen studied many military scientists. Thus, social protection , as part of constitutional - legal status of military personnel were seen in scientific studies VI Pashinskiy [2 ]. Problematic issues of implementation of social policy in the Armed Forces of Ukraine , including social security of servicemen and their solutions are studied in law VI Aleshchenko [3 ]. MI Karpenko in his writings is considering legal work in the Armed Forces of Ukraine to ensure the social protection of servicemen and citizens discharged from military service and their families . [4]

The purpose of the article. It consists in analyzing the system of laws governing the social and legal protection of servicemen and developing proposals for its further development and improvement.

The main results of the study. Today in Ukraine there was a system of legal acts , different void that regulate social and legal protection of servicemen and their constitutional rights and freedoms , regarding their implementation. For legal force of these regulations are divided into the following levels : constitutional regulation (Constitution and constitutional laws ), international legal regulation (international treaties and agreements ) legislative regulation (laws of Ukraine) Regulation subordinate regulatory acts .

 The constitutional regulation of social protection of servicemen based on the Constitution of Ukraine . Thus, Article 17 of the Constitution of Ukraine defines the guarantees of social and legal protection of servicemen , " The State shall ensure the social protection of the citizens of Ukraine who serve in the Armed Forces of Ukraine and other military formations and their families " . [5] These constitutional provisions have a legal basis for other legislation on social and legal protection of servicemen. The Constitution of Ukraine has the highest legal force. Laws and other legal acts adopted on the basis of the Constitution of Ukraine and shall conform to it . Its provisions are directly applicable and ensure the protection of constitutional rights and freedoms of citizens, including social and legal protection of servicemen directly under the Constitution of Ukraine.

Despite the fact that the rules of the Constitution of Ukraine are norms of direct action, they can not regulate in detail all aspects of the social protection of servicemen . Therefore, by the Constitution of Ukraine norms require its specification and development of laws, decrees of the President of Ukraine , the Cabinet of Ministers of Ukraine , Ministry of Defense of Ukraine and other normative legal acts.

International legal regulation of social and legal protection of servicemen based on legal norms contained in international treaties ratified by the Verkhovna Rada of Ukraine and which, consequently, is part of the national legislation of Ukraine . However, under international agreement of Ukraine refers to a contract concluded in writing with a foreign country or any other subject of international law , which is a source of international law, whether a contract contains one or more interrelated documents, and regardless of its particular designation ( treaty , agreement , covenant , protocol , etc.). International treaties upon ratification by the Verkhovna Rada of Ukraine become part of national law (Article 9 of the Constitution of Ukraine ) . [5] In the event that an international treaty ratified by Ukraine , other rules than those provided for in the relevant legislation of Ukraine Act shall apply rules of international agreement . [6] But this does not apply if the provisions of a treaty contrary to the Constitution of Ukraine - in Part 2 of Article 9 of the Constitution of Ukraine conclusion of international treaties that contradict the Constitution of Ukraine is possible only after introducing relevant amendments to the Constitution of Ukraine . The main international legal instruments relating to the social and legal protection of human and civil rights, and is consistent with what the Constitution of Ukraine and the relevant regulations of Ukraine include: the Universal Declaration of Human Rights ( adopted by the UN General Assembly on December 10, 1948 ) [ 8, pp. . 55-62 ], the International Covenant on Civil and Political Rights (adopted by the General Assembly on 16 December 1966, ratified by Ukraine on October 19, 1973 ) [7 , p. 62-82 ], the International Covenant on Economic, Social and Cultural Rights (adopted by the General Assembly on 16 December 1966, ratified by Ukraine on October 19, 1973 ) [7 , p. 86-97 ], the Optional Protocol to the International Covenant on Civil and Political Rights ( Ukraine acceded to the Protocol December 25, 1990 ) [7 , p. 82-86 ], the Convention for the Protection of Human Rights and Fundamental Freedoms ( adopted in Rome on 4 November 1950) [7 , p. 97-127 ] and others.

At its core provisions of international covenants contain important provisions on social and legal protection of individuals , including military personnel.

Given the special nature of the duties of military service, the International Covenants on Human Rights provides that restricting certain rights of military personnel. For example, in Article 8 Paragraph 2 of the International Covenant on Economic, Social and Cultural Rights refers to the introduction of legal restrictions on the right to form trade unions and participate in their activities for persons belonging to the armed forces, police and civil administration. Mizhnarodnarodnyy Covenant on Civil and Political Rights also contains a provision restricting the right to freedom of association, to persons who are members of the armed forces and the police ( Article 22, Paragraph 2 ). [7 , p. 62-82 ].

In modern terms become important international instruments enshrining fundamental rights of military personnel during the conduct of hostilities. The most important are : the Geneva Convention of improving participation casualties in the army [8 ], the Geneva Convention on improving the participation of wounded, sick and those shipwrecked Members of Armed Forces at Sea [8 ], the Geneva Convention relative to the Treatment prisoners of War [8 ], the Rome Statute of the International criminal Court ( adopted on 17 July 1998) [7 , p. 97-127 ] and others. These international instruments include the legal rules defining features of the rights and social protection of servicemen during warfare , give them the right to use weapons to protect their lives and rights during their stay in captivity , and determine responsibility for the commission of war crimes [9 , p. 37-40 , p. 135-140 ].

 International instruments on human rights are very important for the establishment of the rule of law in Ukraine , legal and human rights, including military personnel, in accordance with international human rights standards.

The main legal acts regulating the rights and freedoms of man and citizen , including military personnel, acting in a legal state laws. They, as the highest form of manifestation of political will of the people, is the legal basis for all other instruments. Act - a legal act of the highest representative body of the government , which regulates the most important issues of public life, establishes the rights and duties of citizens , has supreme legal force and accepted subject to special legislative procedures [11 , p. 316 ].

 By the legal regulation of social protection of servicemen are the Laws of Ukraine "On Social and Legal Protection of military personnel and their families " [ 1] "On the Armed Forces of Ukraine " [ 11] "On pensions for persons discharged from military service , and some others " [ 12] " On the Status of War Veterans and Guarantees of their Social Security "[ 13] " On the Status of military veterans and veterans of internal affairs and social protection "[14 ] and other legislation governing social protection of troops in Ukraine .

The main piece of legislation that regulates the social and legal protection of servicemen is the Law of Ukraine "On Social and Legal Protection of military personnel and their families" . [1] This law regulates the provision of their rights and freedoms, social and legal protection of servicemen , their families and limiting certain rights in connection with the performance of military duties, namely:

- Soldiers are entitled to vote , be elected to the councils of all levels to participate in national and local referendums , however , the military may not be members of any political party , organization movements , organize and carry out strikes , guaranteed freedom of conscience and the right to meet their religious needs, guaranteed freedom of scientific, technical and artistic creativity; military can not do business , but at the same time , the state guarantees their financial and other support at levels that stimulate interest in military service (ie allowance , clothing allowance ) [1 ].

- The same Law sets forth the right of soldiers to rest, namely, long working hours and the distribution of service time , the procedure for the provision of basic and additional leave , providing free medical care and sanatorium treatment and rest . [1]

- The law defines the procedure for military personnel living quarters : to obtain a permanent dwelling military service should be provided accommodations , military paid compensation for temporary sublease ( renting ) housing [ 1].

- Also, the law provides for the right to education : military personnel are allowed to study in other schools without interrupting service in the manner prescribed by Regulations of the citizens of Ukraine military service in the Armed Forces of Ukraine and the right to free travel on military personnel and members of his family on vacation within Ukraine , while transitioning to a new duty station , the residence at discharged from military service in Ukraine . [1]

- The law provides for pensions for service personnel , provides that the stay of citizens of Ukraine in the military

credited to their length of service , seniority , length of service

specialty , as well as length of service [ 1].

It should be noted that the legal provisions relating to the rights of servicemen , social questions, duplicated in other laws that govern the establishment and activities of military forces in Ukraine . Thus, the Law of Ukraine " On the Armed Forces of Ukraine " Article 16 provides "Social and Legal Protection of military personnel , their families and staff of the Armed Forces of Ukraine ", which actually duplicates the legal provisions of the Law of Ukraine "On Social and Legal Protection of military personnel and their families ". Directly in this article provided that: the state provides social and legal protection of servicemen and their families , members of the Armed Forces of Ukraine , persons retired or retired , military personnel receive guaranteed by the state housing finance , clothing , medical and other support; conscripts are entitled to free travel in all kinds of public passenger transport , military personnel are eligible for reduced-price spa treatment and rest and medical care , persons discharged from military service, preference in employment in the public service and education for the public account. Also, this law provides for restriction of certain rights of military personnel : the right to be members of political parties and trade unions involved in organizing and carrying out the strike , the right to freedom of movement and free choice of residence and freely leave the territory of Ukraine . [11]

Notable among legal acts governing the social protection of servicemen takes the Law of Ukraine "On pensions for persons discharged from military service , and some others." The law determines the conditions and rules of procedure of military pensions , namely, features military pensions : the right to choose the kind of military pensions when they are eligible for various state pensions , pensions based on years of service and minimum pension and premium pension , increased pensions for disability pensions survivors and others [12 ].

Important step in the continuing legislative activity in the field of legal protection of social security of the Armed Forces of Ukraine became the Law of Ukraine " On the Status of military veterans and veterans of internal affairs and social protection " [ 14] " On the Status of War Veterans and Guarantees of their Social Security "[ 13].

It is worth noting that the legal norms contained in laws governing the social and legal protection of servicemen do not fully correspond to the current state of social relations , socio -economic capabilities of the state , so you can ensure effective implementation of the rights and freedoms of military personnel. There is duplication of law contained in the Law of Ukraine "On Social and Legal Protection of military personnel and their families " in the legislation governing the establishment and operation of various military units . In legislation the existing large number of rules , the validity of which is suspended by other laws.

Social and Legal Protection of Servicemen also governed by the relevant normative acts. Of subordinate legal act - an act that appears to be under the law, under the law , to specify the legal regulations and their interpretation or establishment of primary standards. Pidzakonnist legal acts are not a lesser legal binding. They have the necessary legal authority . True their validity is not the same universality and supremacy , as is typical of laws. However, they occupy an important place in the whole system of regulatory , enforce laws as specified by the regulatory control of the whole complex of social relations [10 , p. 334 ]. The system of sub- legal acts that regulate the social and legal protection of servicemen and issued on the basis of the Constitution of Ukraine and laws of Ukraine are: Decrees of the President of Ukraine, acts of the Cabinet of Ministers of Ukraine , regulations of ministries and other central executive authorities, local regulations executive bodies and local authorities, relevant orders of commanders (chiefs) .

Decrees of the President of Ukraine among legal acts governing the social and legal protection of servicemen, occupy a very important place. First, they determine the main directions of the state policy on social protection of constitutional rights and freedoms of military personnel , and secondly , contain specific rules for their implementation . Yes, the President of Ukraine Decree "On the Regulations of the citizens of Ukraine military service in the Armed Forces of Ukraine " dated 10 December 2008 specifies procedures for military service by citizens of Ukraine , their rights and responsibilities associated with military service , including including issues of social and legal protection , such as the order of money and material security , the order of the right to leave and so on. [15 ]

The Cabinet of Ministers of Ukraine as the highest executive authority, within its competence, issues resolutions and orders that ensure implementation of constitutional rights and freedoms of citizens of Ukraine, including the military . The peculiarity of the legal acts of the Cabinet of Ministers is that they can be taken on the basis and in pursuance of the Constitution of Ukraine and laws of Ukraine, international treaties , acts of the President of Ukraine . Usually the regulations of the Cabinet of Ministers of Ukraine detailing , specifying the above acts, if this is relevant provision in the documents of higher legal force. For example, only in the Law of Ukraine "On Social and Legal Protection of military personnel and their families," contains more than 10 rules established by law provide for the settlement of rights, benefits, compensation by the Cabinet of Ministers of Ukraine . Thus, the present Cabinet of Ministers of Ukraine are regulated by this Law : the order of pay soldiers; method of calculating seniority, appointment and payment of pensions and financial aid , the procedure for a real estate and others.

For example, the Cabinet of Ministers of Ukraine "Issues of pay of certain categories of members of the Armed Forces and the State Border Service, the Internal Troops of the Ministry of Interior and Commanders of bodies and departments of the State Service of Civil Protection Emergencies " on September 22, 2010 № 889 ( amended) [16 ] set extra monthly cash reward for the military .

  By the acts of central executive bodies that regulate social and legal protection of servicemen, the rights and freedoms of military personnel, are usually orders of the Ministry of Defense of Ukraine , Ministry of Internal Affairs of Ukraine , Chairman of the Security Service of Ukraine and others. For example, in the Armed Forces of Ukraine operates a number of orders of the Minister of Defence of Ukraine , defining issue of different types of support troops .

Conclusion. Today in Ukraine there was a system of legal acts , regulating the issue of social and legal protection of servicemen, including a constitutional regulation (Constitution and constitutional laws ), international legal regulation (international treaties and agreements ) legislative regulation (laws of Ukraine) to regulate subordinate regulatory acts .

This system is characterized by a large number of regulations , various legal effect of inconsistent , overlapping legal provisions in various acts void , lack of uniform terminology , legal mechanisms for social protection of servicemen . The rules contained in these acts do not correspond to the current state of social relations are purely declaratory in nature and have no implementation mechanisms.

To further improve the legal regulation of social and legal protection necessary to adopt a new law that would regulate social protection , rights and freedoms of military personnel. This law should be based on the following key assumptions: a clear legal definition for human soldiers and their limitations; legal definition of benefits and compensation provided in connection with the limitation of rights and their compliance with state economic opportunities , targeted benefits and compensation to each soldier or his family , the presence of security and military personnel of the judiciary , establishing liability for violations of the legal rights of military personnel.

Based on the new law on social protection of servicemen must develop other regulations based on the characteristics and conditions of service by different categories of military and economic capabilities of modern state. The implementation of this law will promote real social protection of servicemen as part of military reform , the creation of modern, professional army, which provides a robust defense of Ukraine , increasing the combat readiness and combat effectiveness of the Armed Forces of Ukraine .
REFERENCES

1. On social and legal protection of servicemen and their families : the Law of Ukraine from 20.12.1991 , № 2011.

2. Pashinsky VI Constitutional and legal status in Ukraine / / Law of Ukraine . - 2005. - № 4. - P. 39-42 .

3. Aleshchenko I. In social policy in the Armed Forces of Ukraine : problems and solutions / / Science and oborona. 2005 . - № 2. - P. 38-44 .

4. Karpenko , MI Legal work in the Armed Forces of Ukraine / / Manual. - 2010

5. The Constitution of Ukraine - the Constitution of Ukraine adopted by the Verkhovna Rada of Ukraine to the fifth session of June 28, 1996 .

6. On international treaties of Ukraine : Law of Ukraine on June 29, 2004. / / Supreme Council of Ukraine . - 2004. - № 50. - S. 540.

7. Handbook of international legal acts on the principles of democracy and human rights. - K. , 2001. - 342 p.

8. Basic Provisions Zhenevskyh conventions and protocols Extras k it. - Moscow: ICRC . - 63 p.

9. International Humanitarian Law : Textbook / . Society. eds. VP Basic . - K.: Sentinel , 2000. - 176 p.

10. Racehorse O. Theory of State and Law: A Handbook . - H.: Konsum , 2001. - 656 p.

11. On the Armed Forces of Ukraine : Law of Ukraine on December 6, 1991 № 1934.

12. On pensions for persons discharged from military service , and some others : Law of Ukraine on April 9, 1992 № 2262

13. On the Status of War Veterans and Guarantees of their Social Security Law of Ukraine on October 22, 1993 № 3551.

14. On the status of military veterans and veterans of the Interior and Social Security Law of Ukraine on March 24, 1998 № 203.

15. On Regulations of the citizens of Ukraine military service in the Armed Forces of Ukraine : President of Ukraine Decree of 10 December 2008 № 1153.

16. The issue of pay of certain categories of members of the Armed Forces and the State Border Service, the Internal Troops of the Ministry of Interior and Commanders of bodies and departments of the State Service of Civil Protection Emergencies : Cabinet of Ministers of Ukraine of 22 September 2010 № 889.
Пашинський В.Й., Свистільник І.А. Правове регулювання соціального і правового захисту військовослужбовців в Україні

У статті проаналізована чинна база нормативно-правових актів, яка забезпечує правове регулювання соціального захисту військовослужбовців в Україні. Проблеми належного функціонування і виконання всіх передбачених правових норм цієї бази. Пропонуються можливі шляхи щодо її покращення.

Ключові слова: база нормативно-правових актів, конституційне регулювання, міжнародно-правове регулювання, законодавче регулювання, Конституція України, Закон України.
Пашинский В.Й., Свистильник И.А. Правовое регулирование социальной и правовой защиты военнослужащих в Украине

^ В статье анализируется действующая база нормативно-правовых актов, которая|какая| обеспечивает правовое регулирование социальной защиты военнослужащих в Украине. Проблемы надлежащего|подобающего| функционирования и выполнения всех предусмотренных правовых норм этой базы. Предлагаются возможные пути, относительно|касательно| ее улучшения.

Ключевые слова: база нормативно-правовых актов, конституционное регулирование, международно-правовое регулирование, законодательное регулирование, Конституция Украины, Закон Украины.
Pashinsky V., Svistilnik I. The legal regulation of social and legal protection of the military in Ukraine

The paper analyzes the operating base of normative - legal acts, which provides the legal regulation of social protection of servicemen in Ukraine. Problems proper functioning and performance of all the legal regulations of the base. Suggests possible ways, with respect to its improvement.

Keywords: regulatory framework - legislation, constitutional regulation, international regulation, regulation, the Constitution of Ukraine, the Law of Ukraine.



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