Vol 10 No 44 (2021)

Volume 10 - Issue 44 / August 2021

DOI: https://doi.org/10.34069/AI/2021.44.08.0 How to Cite: Blahuta, R., & Krasnytskyi, I. (2021). Editorial. Amazonia Investiga, 10(44), 7-8. https://doi.org/10.34069/AI/2021.44.08.0

Editorial Trends in the development of higher education in Ukraine: the search for compromises Тенденції розвитку вищої освіти в Україні: пошук компромісів Written by: Roman Blahuta https://orcid.org/0000-0002-8087-5995 Ph.D in Law, Professor, Lviv State University of Internal Affairs, Rector, Lviv, Ukraine.

Ivan Krasnytskyi https://orcid.org/0000-0002-5529-7636 Ph.D in Law, Professor, Lviv State University of Internal Affairs, Director of the Institute of Law, Lviv, Ukraine.

Since the proclamation of independence, reformation, and transformation processes have been going on in all spheres of the public life of our state. This is due to the enshrinement in the Constitution of Ukraine of the irreversibility of the European and Euro-Atlantic course of Ukraine, as well as the desire to develop and strengthen a democratic, social, legal state. Such processes have not escaped the sphere of higher education.

Today, the policy in the field of higher education is based on the principles of accessibility and competitive basis for its acquisition; independence from political and religious influence; integration into the world education system while preserving and developing national achievements and traditions; continuity; state support of priority areas; publicity, etc.

Normative foundations for educational activities based on the above principles are laid down in the Laws of Ukraine "On Education" (No. 2145VIII dated on the 5th of September 2017), "On Higher Education" (No. 1556-VII dated on the 1st of July 2014) and other regulations.

An important step in ensuring the quality of higher education in Ukraine was the introduction of technologies for admission to study based on the results of the external independent evaluation (which objectively minimized corruption risks of this process and allowed gifted young people to freely choose a specialty and educational institution), the establishment of the National Agency for ensuring the quality of higher education as an independent permanent collegial

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body, introduction of the mechanism of the Unified State Qualification Exam in certain specialties, etc. Other legal, socio-economic measures are also taken.

Nevertheless, it seems that the proper level of quality of higher education in Ukraine has not yet been achieved. The main reasons for this are probably the problems with full-fledged financing of education in Ukraine. Therefore, in most cases, the authorities, educational institutions, and the applicants themselves need to find compromise solutions: between cost and quality.

Assessing the state of higher education in Ukraine, it should be noted that the peculiarity of this type of activity in Ukraine is, first of all, the combination of two sources of financing in education: the state and applicants. And, as already mentioned, the state's ability to finance education is limited. This raises the question of the rational distribution of funds for training. At the same time, the mechanism of lending for education (interest-free or with a minimum interest rate) in Ukraine for some reason still does not work.

It should also be noted that for several years in a row the most popular (according to the Unified State Database on Education) among entrants are the following specialties: "Philology", "Law", "Computer Science", "Journalism", "Psychology", "Economy", etc. The number of applications for relevant specialties reaches almost 70 thousand. Instead, for example, in

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2021 1734 applications were submitted for the specialty "Chemistry", 1311 for "Physics and Astronomy", 1220 for "Mathematics", 324 for "Railway Transport", 560 for "Woodworking and Furniture Technologies", 36 applications for "Hydropower", etc.

This situation raises the question of the expediency of mechanisms and limits for stimulating "unpopular" but necessary specialties for the state. Obviously, the state must do it! But within what limits – this issue should be decided based on the specific needs of relevant professionals. In this aspect, we must state the lack of effective mechanisms for determining such a need.

The task, which is closely related to the above, is also to find ways to rationally distribute public funding between "top" and "unpopular" educational areas.

The question immediately comes to mind: is it possible to refuse state funding for "top" educational specialties? On the one hand, it is obvious that most graduates of such specialties (“Law”, “Computer Science”, “Journalism”, “Psychology”, “Economics”, etc.) will not work in the public sector, but in private business.

Second, the market for specialists in such specialties is objectively oversaturated. So should the state finance the training of such specialists? On the other hand, the lack of public funding will mean restricting access to such specialties for applicants who are unable to fund their education. And again, a compromise must be sought in resolving this issue as well.

As a way out of the situation, there are more and more suggestions that contracts for state-funded studies should include the obligation of the graduate to work for a certain period (for example, 3 years) in government agencies, institutions, or enterprises. Otherwise - to return to the state the funds spent on the training of such a specialist (personally or by the company that hires such a specialist). Such a mechanism has long been effectively used in institutions with specific training conditions that train the military, police, and so on.

It is impossible to ignore the situation around the training of specialists in the field of "Law". It is in this area that the biggest discussions are taking place. Given the "top" and the importance of this specialty, for several years in a row, there is an active discussion on limiting the market of educational services in this specialty. Given the

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real need to improve the quality of training of legal professionals, a position is expressed to limit the range of educational institutions that can provide educational services in this area.

However, it seems that this issue does not fully take into account that the presence of a diploma of higher education in law, unlike most other professions, does not guarantee employment in the specialty. In order to practice all key legal professions (judge, prosecutor, lawyer, notary, law enforcement officer, etc.), it is necessary to pass the relevant competitions (additional exams), which are won by the most prepared graduates. And in private companies, the selection is no less careful. Thus, the dilemma arises: is it evil for the state and society if it has more legally aware persons (who, however, find it difficult to apply for positions in the legal professions) if such training is carried out at their expense? Again, the way out is a compromise solution - the search for the optimal ratio between the number of graduates and their quality. And it seems that only competition in an evolutionary way will put everything in its place. Educational institutions that do not provide quality training will not be able to withstand it.

Since we are talking about competition, the question of the cost of educational services cannot be ignored. In particular, in the "top" specialties, the cost of teaching bachelors in 2021 was (approximately): for “Law” - the maximum cost of $ 2750 per year of study and the minimum - $ 600; "Computer Science" - $ 2400 and $ 600, respectively; "Philology" - $ 1850 and $ 300 US, respectively. A rhetorical question arises: how can the cost of training within one specialty differ by 4 or more times?

An important and correct step to regulate this process is the establishment by the government of a minimum (identical) cost of training in certain areas. However, this mechanism cannot be considered perfect. It objectively did not exclude from the sphere of educational activity the dumping activity of certain institutions and should be improved.

Summing up, there are grounds to state that in the field of higher education in Ukraine there is a constant search for compromises in order to build a holistic and high-quality system of educational services. However, despite the difficulties, the movement towards the integration of Ukrainian education into the world education system while preserving and developing national achievements and traditions is confident and progressive.

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Volume 10 - Issue 44 / August 2021

DOI: https://doi.org/10.34069/AI/2021.44.08.1 How to Cite: Budnyk, O., Mazur, P., Matsuk, L., Berezovska, L., & Vovk, O. (2021). Development of professional creativity of future teachers (Based on comparative research in Ukraine and Poland). Amazonia Investiga, 10(44), 9-17. https://doi.org/10.34069/AI/2021.44.08.1

Development of professional creativity of future teachers (Based on comparative research in Ukraine and Poland) Розвиток професійної креативності майбутніх учителів (за результатами порівняльних досліджень в Україні та Польщі) Received: July 10, 2021

Accepted: August 15, 2021

Written by: Olena Budnyk1 https://orcid.org/0000-0002-5764-6748 Piotr Mazur2 https://orcid.org/0000-0002-3488-2940 Lyudmila Matsuk3 https://orcid.org/0000-0003-0472-6813 Liudmyla Berezovska 4 https://orcid.org/0000-0002-3032-7261 Olena Vovk5 https://orcid.org/0000-0002-6574-1673 Abstract

Aнотація

The article outlines the essence of professional creativity in pedagogical activity. The teacher’s creativity is described as a complex of intellectual and personality characteristics of the individual, contributing to the independent generation of original ideas and their nontraditional solution. On the basis of comparative experimental research, the level of non-verbal creativity of future teachers of the bordering regions of Ukraine and Poland was revealed in the paper. According to the results of the diagnosis of non-verbal creativity (Torrens methods), the authors conclude that a significant proportion of Ukrainian and Polish students are not able to produce a sufficient number of original ideas in a minimal verbalization (for example, most of the future teachers had the average (47.3% in Ukraine, 45.8% in Poland) and low (respectively 18.7% and 25.8%) levels of non-verbal creativity based on the index of originality). It is emphasized on the need to focus the content of higher education on the development of future teachers’ ability to seek out non-standard options in organizing the

У статті висвітлено сутність професійної творчості у педагогічній діяльності. Охарактеризовано креативність вчителя як комплекс інтелектуальних і особистісних характеристик особистості, що сприяють самостійній генерації оригінальних ідей і нетрадиційному їх вирішенню. На основі порівняльного експериментального дослідження виявлено рівень невербальної креативності в майбутніх учителів прикордонних регіонів України та Польщі. За результатами діагностики невербальної креативності (методика Торренса) автори приходять до висновку, що значна частина українських і польських студентів нездатна продукувати достатню кількість оригінальних ідей в умовах мінімальної вербалізації (наприклад, більшість майбутніх учителів виявили середній (47.3% – в Україні, 45.8% – в Польщі) і низький (відповідно 18.7% і 25.8%) рівні невербальної креативності за індексом оригінальності). Наголошується на потребі спрямування змісту вищої освіти на розвиток у майбутніх

Doctor of Pedagogical Sciences, Professor, Director of the Center for Innovative Educational Technologies “PNU EcoSystem”, Vasyl Stefanyk Precarpathian National University, Ivano-Frankivsk, Ukraine.

2 Doctor of Pedagogical Sciences, Professor, The State School of Higher Education in Chelm, Chelm, Poland.

3 PhD in Pedagogical Sciences, Associate Professor, Vasyl Stefanyk Precarpathian National University, Ivano-Frankivsk, Ukraine.

4 Doctor of Pedagogical Sciences, Professor, South Ukrainian National Pedagogical University K. D. Ushinsky, Odessa, Ukraine.

5 Doctor of Pedagogical Sciences, Associate Professor, Bohdan Khmelnytsky National University at Cherkasy, Cherkasy, Ukraine.

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pedagogical process, creative modeling of lessons and educational activities, the creation and implementation of original pedagogical ideas, authoring techniques, etc.

Keywords: Index of Originality, Index of Uniqueness, Future Teachers, Non-Verbal Creativity, Pedagogical Activity.

учителів здатності шукати нестандартні варіанти в організації педагогічного процесу, творчому моделюванні уроків і виховних заходів, створенні та впровадженні оригінальних педагогічних ідей, авторських методик тощо. Ключові слова: індекс оригінальності, індекс унікальності, майбутні вчителі, невербальна креативність, педагогічна діяльність.

Introduction In today’s conditions, raising the requirements for the quality of education, the problem of professional creativity of specialists in various spheres of social life is actualized (Cremin, & Chappell, 2021; Pavlović, & Maksić, 2019). First of all, it applies to the pedagogical profession, where the teacher’s creativity serves as a means of stimulating cognitive interests of students, increasing their motivation to master new knowledge. At the same time, modern “teachers face the question of how to successfully integrate creativity into teaching practice when teachers have many pressures and little leeway” (Henriksen, & Mishra, 2013). Often, learning at school means mainly to memorize and reproduce typical methods of action or methods for solving tasks. Such monotony reduces the creative potential of students.

Therefore, urgent is the problem of overcoming pedagogical conservatism, development of student creativity, training of future teachers for implementation of educational innovations in school practice, formation of skills to navigate the market for educational services, etc (Budnyk, Fomin, Novoselska, & Voitovych, 2020). So, O. Dubaseniuk (2011) sets out a strategy for a creative approach to organizing a pedagogical process in a higher educational institution, which involves: students’ awareness of their personal and professional abilities, development of pedagogical abilities to the level of creative; satisfaction of the need for novelty and nonstandard ways of solving professional tasks; setting on creativity and overcoming stereotypical ways and formalism in professional activities; forecasting ways and improving the creative potential of the future teacher. “The development of creative potential is the key to a successful career of students and their professional socialization on the competitive labor market” (Berikkhanova et al., 2015, p. 1146).

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The purpose of the article is to characterize the essence of a teacher’s professional creativity; on the basis of comparative experimental research to identify the level of nonverbal creativity of future teachers in the border regions of Ukraine and Poland; define factors that affect the level of pedagogical creativity.

Literature review The essence of pedagogical creativity The problem of creativity in professional activity has been the subject of the study of philosophers, psychologists, and educators since ancient times.

So, in defining different activities, Aristotle argued that creativity (roises) and deeds (ргахіs) are not the same thing. The reseacher refers art to creativity, not to deeds (Aristotle, 1999).

Creativity should be aimed at creating works of art and objects of technical production, and actions related to free choice, “practical” (moral and political) life, universal rules of human behavior, general moral and legal norms of citizens of the policy. Consequently, according to the definition of philosophers, the activity involves active interaction of the subject with the object, the final result of which is creation of material or spiritual values, thereby they observe the relationship of the concepts of “activity” and “creativity” (Vasianovych, & Budnyk, 2017).

Ukrainian researcher of the psychology of creativity V. Romanets argued that it is in this activity that the expression of human individualization, in particular its outlook, takes place. It is the originality and communication that the author considered the characteristics of creative activity, since “the deepening of originality leads to the expansion of communication”, hence communication implies “the intensification of originality”, therefore, “creativity has a social character and is the interaction of individualities” (Romenets, 2004, p. 121-128).

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Professional pedagogical activity cannot be stereotyped. It always has a creative character (Hennessey, & Amabile, 2010; Fullan, & Langworthy, 2014; Antonova, 2007; Davidovitch, & Milgram, 2006; Fischer, & Golden, 2018; Dubaseniuk, 2011; Romenets, 2004; Taddei, 2013; etc.).

American scientists developing ways to integrate creativity into classrooms and explore the role of teachers in enhancing students’ creative skills.

As “creative people have the ability to maintain a sophisticated knowledge of their field of expertise yet look outside the frames of that field to come up with new ideas” (Henriksen, & Mishra, 2013). “Creativity comes from synthesis, making new combinations of existing ideas” (Smith, Nerantzi, & Middleton, 2014).

Pedagogical creativity in professional activity is usually interpreted as a higher level of purposeful human activity in a certain sphere of social life characterized by novelty and social significance of its results. Thus, R. Skulskyi’s regarded teacher’s pedagogical work as “such a variant of the organization of professional activity, which at the really affordable level provides maximum possible results in the solution of educational tasks in each particular case...” (1992, p. 10).

N. Davidovitch, & R. M. Milgram (2006) emphasize the peculiarities of the teacher's creative thinking and its influence on the efficiency of the pedagogical process in higher education. Mollie S. Aschenbrener, Robert Terry Jr., Robert M. Torres (2010) investigated the influence of creative teaching behaviors on student learning outcomes. “Learning to learn requires that students begin to define their own learning goals and success criteria; monitor their own learning; critically examine their own work; incorporate feedback from peers, teachers, parents or simply other people in general; and use all of this to deepen their awareness of how they function in the learning process” (Fullan, & Langworthy, 2014, p. 17).

Consequently, creativity as an inalienable characteristic feature of professional activity of the teacher is an active process of selfimprovement, in particular in social and pedagogical activity, the driving force of which is internal and external contradictions. Creative professional activity is always associated with the search for an optimal solution to the problem, adoption of non-standard educational decisions, development and implementation of educational and methodological innovations, development of an individual style of teaching activities, taking into account social queries. “Сreativity in

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education is often an anticipated entailment rather than an actively defined and targeted skill.

Even when creativity is deliberately sought, there is still the issue of deciding how to best foster it in teachers and students” (Fischer, & Golden, 2018, p. 100).

In modern psychological and pedagogical science more and more often agree to the definition of the category of creativity as a complex multi-component psychological phenomenon of a holistic personality. Significant features of creative pedagogical activity, by which it can be distinguished from reproductive (non-creative), R. Skulskyi considered the novelty and social significance of its results. The final results of such activity serve as criteria for identifying its creative nature (1992, p. 13).

B. Fischer, & J. Golden give a definition of creativity that encompass “the widely accepted elements of novelty and value, as well as a strategy to achieve it” (2018, p. 103). Creativity is a combination of those features of the psyche that provide significant transformations in the activity of the individual, which, together with its leading motives, are manifested in the capacity for productive change. For a creative person a bright self-regulation of perception is characteristic, its orientation on the solution of any task, a high level of concentration, etc.

Pedagogical creativity is defined as a set of qualities, the presence and degree of development of which allows the student to creatively approach pedagogical activities (Antonova, 2007, p. 365). Indeed, on the teacher's ability to organize a creative environment in school, depends the attitude of the students to learning, and the creativity, first of all, of 6-7-year-old children undergoing the process of adaptation to school life (Krasoń, Bonar, Garbula, Jaszczyszyn, Nowak-Łojewska, et al, 2015; Denise de Souza Fleith, 2000).

Studies suggest that “teachers’ grade level, subject, experience, and age have no effect on their perception of creative characteristics” (Kettler, Lamb, Willerson, & Mullet, 2018).

Ch. Smith, Ch. Nerantzi, & A. Middleton (2014) are perfectly sure, that” truly creative learning spaces are ones in which learners and teachers are mutually engaged in diverse thinking, critiquing each other’s viewpoints and working on problems collaboratively”. “Working on a creative science project may help developing students’ creative abilities, and the interaction between teacher and students during the work on defining a problem and solving the problem, is an

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12 ideal forum for supporting students’ creativity” (Fredagsvik, 2021).

Thus, the teacher’s creativity is a natural property of the individual, the highest form of activity, which is embodied in the results of creative professional activity. The creative teacher resolves educational and practical tasks by formulating hypotheses, creating cognitive rules, finding a set of probable and interesting solutions.

Methodology of Research General Background of Research The research had a comparative character. Future teachers from bordering regions of the two countries participated in the experiment – Old Polish University in Kielce (department in Myślenice), University of Economics and Innovation in Lublin (WSEI), The State School of Higher Education in Chelm (Poland); Lesya Ukrainka Eastern European National University and Vasyl Stefanyk Precarpathian National University (Ukraine).

The purpose of the research is to identify the level of non-verbal creativity in future educators.

The experiment involved 304 students studying in Ukraine and 310 students from Poland. The statistical analyses were prepared based on data obtained from the surveys.

Instrument and Procedures The mechanism of development of human creativity does not correlate directly with the development of its intelligence, but it is characterized by increasing influence of motivational and personal qualities, in particular,

such a specific property of a person as its originality. Thus, the task of our experiment was to diagnose the level of non-verbal creativity of future teachers. As an instrument, we used the technique of E. Torrance (adaptation A. Voronin) (Torrance, 1974; Voronin, 1994).

The survey was conducted during SeptemberNovember 2019 (in Ukraine) and March-May 2019 (in Poland). Students were requested to fill in the proposed drawings with the task. We used 6 unfinished drawings that did not repeat and allowed us to get the most reliable results. Each drawing was given no more than for 2 minutes.

The indicators of creativity in the test were originality and uniqueness.

The index of originality was defined as the arithmetic mean of the originals of all images in the proposed atlas. The “originality of the drawing” was estimated on the basis of the amount of data on it and was calculated by the following formula:

where Оr is originality of a certain type drawing; and x is the number of drawings another type; Хmaks is the maximum number drawings in a type for a certain sample respondents.

of of of of

If the originality of the image (according to Torrens) is equal to 1, then this drawing is considered unique. The level differentiation of respondents by indices of the index of originality (uniqueness) was conducted on the appropriate scale (Table 1).

Table 1.

The level of differentiation of respondents according to indexes of originality / uniqueness.

Level The range of uniqueness indexes The range of indices of originality High 3–4 0.83 – 1 Sufficient 2 0.58 – 0.82 Medium 1 0.33 – 0.57 Low 0 0 – 0.32 Source: Torrance, 1974; Voronin, 1994; adapted by the authors, 2019.

Results of Research The Torrens test was used as a method of identifying the originality of the means of figurative style, the index of uniqueness characterizes the novelty of creation. In

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analyzing the level of non-verbal creativity, this index is secondary because of the lack of differentiating power.

In the analysis of completed drawings, the main focus was on the use of such details and semantic

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links by respondents, as well as a comparison of these dwawings with the methods presented in the atlas. This made it possible to calculate

indices of originality of Ukrainian and Polish students (Table 2 and Figure 1).

Table 2.

Indices of originality of future teachers in Ukraine and Poland.

Levels of development

Ukraine (304 students) f % High 10 3.3 Sufficient 93 30.7 Medium 144 47.3 Low 57 18.7 Source: data collected by the authors (2019).

The results of the study indicate that for most future teachers, the average is typical (47.3% in Ukraine, 45.8% in Poland) and low (respectively 18.7% and 25.8%) non-verbal creativity. Such students will be difficult to adapt to the new conditions of their professional environment and to make non-standard decisions in pedagogical practice.

The part of students who are characterized by a high level is very small – 3.3% among Ukrainians and 9.35% – Polish students. One

Poland (310 students) f % 29 9.35 59 19.03 142 45.8 80 25.8

third of Ukrainian respondents (30.7%) have an index of originality at an adequate level, while in Polish young people, who study to become teachers, this figure is 22.9%. Actually, a high and sufficient level of originality makes possible the use and introduction by teachers of educational innovations, arranging creative authoring teaching methods, etc. However, a high level of creativity of a specialist is possible in case of the possession of “creative abilities, creative skills and creative motivation” (Torrance, 1974).

47,3

50

45,8

45 40 35

30,7

30

25,8

25

19

20 15

9,4

10 5

18,7

3,3

0

High

Sufficient

Ukraine

Medium

Low

Poland

Figure 1. Indices of originality of future teachers in Ukraine and Poland.

Source: authors’ calculations based on the conducted survey.

The level of creativity, according to our research, does not depend on a geographical factor, but it also does not exclude the influence of the environment. For example, among Polish students studying at different educational institutions, relatively proportional distributions were found according to the index of originality.

So, among 165 students from the Old Polish University in Kielce (Department of Myślenice),

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the high level of the index of originality was found in 10.3% of students, sufficient – 14.6%, average – 49.1% and low – 26.06%. We found similar data in the State School of Higher Education in Chelm (Poland): out of 83 respondents, 9 people showed a high level of originality (10.8%), sufficient – 20 (24.1%), average – 34 (41%) and low – 20 (24.1%).

Almost the same data is available at the

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14 University of Economics and Innovation in Lublin (WSEI): out of 62 students, the high level of the originality index was 17 persons (27.4%), average – 27, which is 43.6% of the total; However, only 4.84% of future educators had the high level of creativity. In the universities of Western Ukraine, where the study was conducted, there were also no significant

differences in the levels of non-verbal creativity of students.

Regarding the distribution of the uniqueness index (Table 3 and Figure 2), a high level was found in 10.9% of Ukrainian and 16.5% of Polish respondents.

Table 3.

Distribution of future teachers by levels based on the indices of their uniqueness.

Levels of development

Ukraine (304 students) f % High 33 10.9 Sufficient 89 29.3 Medium 98 32.2 Low 84 27.6 Source: data collected by the authors (2019).

Among the respondents from Ukrainian universities, almost a third part of students (29.3% of the total) showed sufficient, almost the same – average (32.2%) and low (27.6%) levels.

Among the future teachers from Poland, this

40 35 30 25 20 15 10 5 0

35,16 29,3

Poland (310 students) f % 51 16.45 109 35.16 110 35.48 40 12.9

indicator is not significantly different: in fact the same number of people proved sufficient (35.16%) and average (35.48%) levels of nonverbal creativity according to the uniqueness index.

32,2

35,48 27,6

16,45 12,9

10,9

High

Sufficient

Ukraine

Medium

Low

Poland

Figure 2. Uniqueness index of students in Ukraine and Poland.

Source: authors’ calculations based on the conducted survey.

However, among Ukrainian students, more than twice is higher a low level of creativity – 84 respondents, representing 27.6% (in Poland this figure is only 12.9% (40 people). The low level of the uniqueness index testifies young people’s unwillingness or incapacity to create unique works (drawings). In professional activities this may be reflected in standardized approaches to solving pedagogical situations, inability to solve non-typical professionally-oriented tasks, lack of initiatives and desire to identify their individuality. It is obvious that in this case, the development of creativity in Polish higher education institutions is more influenced by

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socio-psychological conditions: greater openness in communication, spontaneity, autonomy and confidence of the student, environment of trust, openness, freedom and novelty (Budnyk & Mazur, 2017).

At the same time, in the post-Soviet Space there still exsist a certain tenderness, conservative perception of pedagogical reality.

Discussions The result of creative development of a person is creativity. In psychological and pedagogical

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science, creativity is understood as a complex of intellectual and personal characteristics of the individual, contributing to the independent generation of original ideas and their nontraditional solution.

In the framework of synergetic (non-classical) methodology, we define the principle of nonlinearity in the preparation of a teacher, which implies “the need for an innovative, nonclassical perception of the world on the basis of taking into account modern studies of social and humanitarian sciences”, “openness, variability, flexibility, mobility of formation of knowledge, skills, social and pedagogical content through the synthesis of basic and special courses, development of subjectivity, stimulating creativity” (Budnyk, 2014, p. 209-210). This thinking of a qualified specialist is aimed at solving complex systems taking into account the latest methodological grounds, methods and means.

According to the results of the diagnosis of nonverbal creativity, we can conclude that prevailing number of future teachers in Ukraine and Poland is unable to produce sufficient original ideas in a minimal verbalization. They use simple, traditional ways to solve practical problems, producing template ideas. According to A. Maslow, who considered creativity “a universal characteristic of all self-actualized people” (Maslow, 2006, p. 222), these students will not be able to fully self-realize in a professional environment. Many of them may be unmotivated, inclined to make decisions prematurely, without taking into account all available information. Therefore, in the context of a higher educational institution, it is important to direct the content of education to the development of future teachers' ability to seek non-traditional options in organizing the pedagogical process, creative modeling of lessons and educational activities, creation of original pedagogical ideas, etc. “The approach to the revelation of creative abilities of future teachers involves the rejection of established patterns and stereotypical behavior techniques, and requires the application of innovation, creativity and ingenuity of a teacher” (Berikkhanova et al., 2015, p. 1146).

Thus, the development of the professional creativity of the future teacher involves mastering methods, techniques, methods of organizing creative activity. Undoubtedly, it is about mastering them with the appropriate pedagogical tools of creativity and their use in practice, strengthening the relationship between

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theoretical and practical knowledge “in the processes of developing special professional competences ... of future teachers”, in particular creative thinking in pedagogical activities (Rovnaňová, & Nemcová, 2017, p. 177). After students are prepared for solving a system of professionally oriented tasks at different levels in the context of triad activity: creativity, skill, activity.

B. Jeffrey, & A. Craft (2004) show the relationship between teaching creatively and teaching for creativity: 1) teachers teach creatively and teach for creativity according to the circumstances they consider appropriate and sometimes they do both at the same time; 2) teaching for creativity may well arise spontaneously from teaching situations in which it was not specifically intended; 3) teaching for creativity is more likely to emerge from contexts in which teachers are teaching creatively. Learners model themselves on their teacher’s approach, find themselves in situations where they are able to take ownership and control and are more likely to be innovative, even if the teacher was not overtly planning to teach for creativity.

The development of professional creativity of future teachers in higher education involves the use of pedagogical innovations, active learning methods in particular, “sharing ideas across discipline”, “creating an environment of open collaboration”, and “providing for interdisciplinary and capstone courses as well as cross-class projects”, etc. “Creating an environment of trust is a critical component of promoting innovation and creativity” (Taddei, 2013).

Conclusions On the level of creativity (in particular, nonverbal) students are influenced by factors such as: motivation, value orientations, the presence of a suitable environment, a sense of freedom in activity, adequate and steady self-esteem, etc. As a result of the study we draw the conclusion: creativity should be considered in the structure of the integral personality of the future teacher.

Professional creativity is manifested in the students’ clear awareness of the possibilities of modeling the creative environment in school, feeling of professional freedom, overcoming stereotypical notions about the pedagogical profession, creative solution of professionally

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16 oriented tasks, the non-standard approach to modeling the educational process, the creative use of verbal and nonverbal means of pedagogical interaction with Students, striving for creative self-development and selfdevelopment.

Bibliographic references Antonova, O. Ye. (2007). Theoretical and methodical principles of teaching pedagogically gifted students, monograph.

Zhytomyr, Ukraine: Vyd-vo ZhDU. Aristotle (1999).

Nicomachean Ethics, translation by W. D. Ross. Kitchener: Batoche Books. https://socialsciences.mcmaster.ca/econ/ugc m/3ll3/aristotle/Ethics.pdf Aschenbrener, M., Terry, R., & Torres, R. (2010). Creative and Effective Teaching Behaviors of University Instructors as Perceived by Students. Journal of Agricultural Education, 51 (3), 64-75. Doi: 10. 5032/jae.2010.03064 64.

Berikkhanova, A. E., Zhussupova, Zh. A., & Berikkhanova, G. Ye. (2015). Developing creative potential of future teachers: research and results. Procedia – Social and Behavioral Sciences, 171, 1142-1146. doi: 10.1016/j.sbspro.2015.01.222.

Budnyk, O. (2014). Professional training of primary school teachers to social and educational activities: Theory and Practice, monograph.

Dnipropetrovsk, Ukraine: “Seredniak T.K.”. http://194.44.152.155/elib/local/2289.pdf (in Ukrainian).

Budnyk, O., & Mazur, P. (2017). The Hierarchy of Values Among Young People from Schools in the Mountainous Regions (Comparative study on the example of Poland and Ukraine). The New Educational Review, 47 (1), 53-65. doi: 10.15804/tner.2017.47.1.04 Budnyk, O., Fomin, K., Novoselska, N., & Voitovych, A. (2020). Preparing Teachers to Organize Dialogic Learning of Students: Communicative Aspect. Revista Inclusiones, 7(4), 117-129.

Cremin, T, & Chappell, K. (2021). Creative pedagogies: a systematic review. Research Papers in Education, 36(3), 299-331. https://doi.org/10.1080/02671522.2019.1677 757 Davidovitch, N., & Milgram, R. M. (2006).

Creative thinking as a predictor of teacher effectiveness in higher education. Creativity Research Journal, 18 (3), 385-390.

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de Souza Fleith, D (2000). Teacher and student perceptions of creativity in the classroom environment. Roeper Review, 22 (3), 148-153. https://doi.org/10.1080/02783190009554022 Dubaseniuk, O. A. (2011). Creative approach to vocational and pedagogical training of future teachers. Creative Pedagogy, 4, 23-28. http://eprints.zu.edu.ua/12838/1/23.pdf (in Ukrainian).

Fischer, B., & Golden, J. (2018). Modelling and Fostering Creativity: Two Post-Secondary EAL Teachers’ Journey. Canadian Journal of Education, 41 (1), 98-123.

Fredagsvik, M. S. (2021). The challenge of supporting creativity in problem-solving projects in science: a study of teachers’ conversational practices with students.

Research in Science & Technological Education, 1-17. https://doi.org/10.1080/02635143.2021.1898 359 Fullan, M., & Langworthy, M. (2014). A rich seam: How new pedagogies find deep learning.

Pearson. https://www.michaelfullan.ca/wpcontent/uploads/2014/01/3897.Rich_Seam_ web.pdf Hennessey, B. A., & Amabile, T. M. (2010).

Creativity. Annual Review of Psychology, 61 (1), 569–598.

Doi: 10.1146/annurev.psych.093008.100416 Henriksen, D., & Mishra, P. (2013). Learning from Creative Teachers. Educational Leadership, 70 (5), http://www.ascd.org/publications/educationa l-leadership/feb13/vol70/num05/Learningfrom-Creative-Teachers.aspx Jeffrey, B., & Craft, A. (2004). Teaching creatively and teaching for creativity: distinctions and relationships. Educational Studies, 30(1), 77–87. https://doi.org/10.1080/03055690320001597 50 Kettler, T., Lamb, K. N., Willerson, A., & Mullet, D. R. (2018). Teachers’ Perceptions of Creativity in the Classroom. Creativity Research Journal, 30(2), 164-171. https://doi.org/10.1080/10400419.2018.1446 503 Krasoń, K., Bonar, J., Garbula, J., Jaszczyszyn, E., Nowak-Łojewska, A., Łączyk, M., Kopaczyńska, I., Olczak, A., Różańska, A., & Tyl, A. (2015). Dimorphic Outlook on Children’s Creative Attitudes on the Verge of Education Application of Creative and Re-constructive Attitudes Rating Scale (SPTO). The New Educational

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Review, 42 (4), 285-297.

Doi: 10.15804/tner.2015.42.4.24 Maslow, A. (2006). Motivation and Personality, 3rd ed., Moscow-St. Petersburg, Russia: Piter.

Pavlović, Je., & Maksić, S. (2019). Implicit Theories of Creativity in Higher Education: A Constructivist Study. Journal of Constructivist Psychology, 32(3), 254-273. https://doi.org/10.1080/10720537.2018.1477 639 Romenets, V. A. (2004). Psychology of creativity: a manual, 3rd ed. Kyiv, Ukraine: Lybid. https://chtyvo.org.ua/authors/Romenets_Vol odymyr/Psykholohiia_tvorchosti/ (in Ukrainian).

Rovnaňová, L., & Nemcová, L. (2017).

Integration of Theoretical and Practical Undergraduate Training in the Processes of Developing Student Teachers’ Professional Competences. The New Educational Review, 47 (1), 176-186.

Doi: 10.15804/tner.2017.47.1.14 Skulskyi, R. P. (1992). Preparation of future teachers for pedagogical creativity, monograph. Kyiv, Ukraine: Vyshcha shkola.

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Smith, Ch., Nerantzi, Ch., & Middleton, A. (2014). Promoting Creativity in Learning and Teaching. UK: University Campus Suffolk, Manchester Metropolitan University, Sheffield Hallam University. http://www.iced2014.se/proceedings/1120_S mith.pdf Taddei, L. (2013). Encouraging Creativity and Innovation in Yourself and Your Students.

Faculty focus. https://www.facultyfocus.com/articles/facult y-development/encouraging-creativity-andinnovation-in-yourself-and-your-students/ Torrance, E. P. (1974). Torrance Tests of Creative Thinking. Lexington, Mass.: Personnel Press. https://www.worldcat.org/title/torrancetests-of-creativethinking/oclc/504033487?referer=di&ht=edi tion Vasianovych, H., & Budnyk, O. (2017). The Category of freedom in the written heritage of John Amos Comenius and Hryhoriy Skovoroda. Advanced Education, 7, 85-89. doi: 10.20535/2410-8286.93517.

Voronin, A. N. (1994). Methods of psychological diagnostics.

Moscow: DOCKniga. https://gigabaza.ru/doc/3470-pall.html

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Baliun, O., Kashpur, A., Fisenko, T., Segol, R., Husak, O. / Volume 10 - Issue 44: 18-27 / August, 2021

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DOI: https://doi.org/10.34069/AI/2021.44.08.2 How to Cite: Baliun, O., Kashpur, A., Fisenko, T., Segol, R., & Husak, O. (2021). TRuSt method: Mediation of stakeholders for improvement of urban development strategies. Amazonia Investiga, 10(44), 18-27. https://doi.org/10.34069/AI/2021.44.08.2

TRuSt method: Mediation of stakeholders for improvement of urban development strategies МЕТОДИКА TRuSt: МЕДІАЦІЯ СТЕЙКХОЛДЕРІВ ДЛЯ ПІДВИЩЕННЯ ЕФЕКТИВНОСТІ СТРАТЕГІЙ РОЗВИТКУ МІСТ Received: June 26, 2021

Accepted: August 10, 2021

Written by: Baliun Оksana6 https://orcid.org/0000-0002-7676-9049 Kashpur Andrii7 https://orcid.org/0000-0002-5954-9060 Fisenko Tetiana8 https://orcid.org/0000-0003-1837-0117 Segol Radmila9 https://orcid.org/0000-0002-3231-531X Husak Olviia10 https://orcid.org/0000-0002-7255-6492 Abstract

Анотація

The purpose of this study is to determine the factors that influence the effectiveness of applying the mediation techniques of stakeholder groups for strategic urban and territorial development exemplified by practical implementation of Triad Retrospective Scripting method in Ukraine. As part of the study, the authors have used the general-scientific and specialized methods of research: а) general theoretical methods such as analysis, synthesis and comparing; b) sociological research methods such as surveys, in-depth interviews, expert studies, roundtable discussions; c) systematic methods of analysis on this subject matter and a case-study method. In the course of the research, the authors have analysed and described the Triad Retrospective Scripting method based on a project-scenario approach. It is on the basis of this technique the practical approbation has been carried out and it has shown that its application makes it possible to significantly reduce the level of negative feedback and to involve the

Розвиток комунікаційних та інформаційних технологій став одним з ключових драйверів трансформацій систем врядування, як на рівні країни, так і на рівні місцевого самоврядування (local government) – зростаючі комунікаційні можливості людей збільшують їх вплив одне на одного та на владу. Це, в свою чергу, призводить до виникнення багатовекторних комунікацій, в яких беруть активну участь (є джерелами інформаційного впливу та генераторами контенту) групи з різними інтересами та цілями. Метою цього дослідження є визначення факторів впливу на ефективність застосування методик медіації стейкхолдерних груп стратегічного розвитку міст та територій, на прикладі практичного застосування в Україні методики Triad Retrospective Scripting. Під час дослідження автори застосували загальнонаукові та спеціальні методи наукового пізнання: а) загальнотеоретичні методи як аналіз, синтез та порівняння; б) методи соціологічних досліджень такі як опитування, глибинні інтерв’ю, експертні дослідження,

6

PhD, Associate professor of the Department of Publishing and Editing National Technical University of Ukraine Igor Sikorsky Kyiv Polytechnic Institute, Ukraine.

7 PhD, head of the Reputation LabТМ Research Centre, Ukraine.

8 PhD, Associate professor of the Department of Publishing and Editing National Technical University of Ukraine Igor Sikorsky Kyiv Polytechnic Institute, Ukraine.

9 PhD, Associate professor of the Department of Publishing and Editing National Technical University of Ukraine Igor Sikorsky Kyiv Polytechnic Institute, Ukraine.

10 PhD, Associate professor of the Department of Publishing and Editing National Technical University of Ukraine Igor Sikorsky Kyiv Polytechnic Institute, Ukraine.

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stakeholder groups, who are in opposition to each other otherwise, in collaborative work. The recommendations for minimizing the negative effects of key factors that influence the mediation of stakeholder groups for urban and territorial development have been formulated as part of this study.

Key Words: public and private partner, public decision-making, city development, territorial marketing, TRuSt method.

круглі столи; с) систематичні методи аналізу досліджуваної інформації та a case-study method. В процесі дослідження авторами проаналізовано, описано методику Triad Retrospective Scripting, яка базується на проєктно-сценарному підході. На основі цієї методики автори провели практичну апробацію, яка продемонструвала, що її застосування дозволяє суттєво зменшити рівень негативних відгуків та поєднати у спільній роботі стейкхолдерні групи, які за інших умов знаходяться в опозиції одне до одного. В рамках дослідження було сформульовано рекомендації стосовно мінімізації негативних наслідків ключових факторів впливу на медіацію стейкхолдерних груп розвитку міст та територій. Ключові слова: державно-громадянське партнерство, публічне громадське обговорення, розвиток міста, територіальний маркетинг, метод TRuSt.

Introduction The rapid growth of communications capabilities of individuals and communities has led to the fact that the media resources of government, especially a local one, are significantly inferior to the resources available to the citizens. As a consequence, the development strategies that are formulated by the authorities are becoming more and more vulnerable with respect to information, that is, they are exposed to the active information pressure and public criticism both at their own discretion and due to the influence of political opponents of the current government.

This issue has become particularly acute for Ukraine, which has set a course for decentralization, the development of local communities and government at the national level since 2015. At the same time, there is in fact no social experience or relevant tools for building the dialogue systems between different pressure groups among political parties, businesses and members of the general public in Ukraine.

The experience in elaborating and implementing the effective urban and territorial development strategies is virtually non-existent in Ukraine as well. Most of them have been developed within the framework and with the resources of the EU Technical Assistance Program and are rather formal, have a low efficiency level of implementation in practice and correspondingly low or undefined performance indicators.

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As a result, the strategy that is developed by local governments immediately has become the target of criticism, the media volume of which far exceeds the positive and constructive feedback.

Thus, a negative image, which hinders or even cancels the strategy implementation, is created in the information space.

The purpose of this study is to identify the factors that influence the effectiveness of applying the mediation techniques of stakeholder groups for strategic urban and territorial development by the example of practical implementation of TRuSt (Triad Retrospective Scripting) method in Ukraine. In the course of the research, the following tasks had been accomplished: the problem state of the emergence of information counteraction (criticism) to the elaborating and implementing territorial development strategies in Ukraine has been analysed; the theoretical basis and practice of application of the technique developed in Ukraine have been studied; the recommendations for minimizing the negative consequences of key factors that influence the mediation of stakeholder groups for urban and territorial development have been formulated.

Literature review The problem of methodology for territory management, its communication and information component in the context of the territorial development strategy elaboration is becoming

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20 essential, particularly in the research of scientists. The international research experiences are presented in scientific works of M. Jouini, J. Burte, Y. Biard, N. Benaissa, H. Amara, C. Sinfort (Jouini et al., 2019). For example, the studies demonstrate the application of life cycle assessment technique (LCA) within Tunisian territory and indicate that integrating stakeholders in LCA supports public decisionmaking.

An interesting approach to the problem and the description of a decision-making model based on the viable system approach (VsA) were proposed

by C.Simone, S.Barile, M.Calabrese (Simone et al., 2018). In the research work which is called «Problems and Prospects in Community Engagement in Urban Planning and DecisionMaking: Three Case Studies from the Australian Capital Territory», Australian scientists draw attention to the issue of insufficient citizen involvement in urban planning processes participation. The authors are focused on the study of the causes of this phenomenon (Stewart & Lithgow, 2015). A wide range of issues related to our study was raised in the scientific article called «Тerritory Planning and Management: the Theory Debate in Brazil and a Prospect of Practice According to Theoretical Contributions on Territorial Governance» (Dallabrida, 2015).

In the research work which is called «Monitoring of Social Reactions to Support Decision Making on Issues of Urban Territory Management» the authors pay attention to the information and the technical component of the problem of information collection and processing. In particular, the process of analysis of citizens preferences for decision support in the management of development problems in urban areas is described (Ustugova et al., 2016).

of different stakeholder groups and methods of formation and mediation of dialogue spaces, which have a significant impact on the effectiveness of elaborating and implementing urban and territorial development strategies.

Methodology The general and specialized methods of scientific knowledge were used in this study. In particular, such general theoretical methods such as analysis, synthesis and comparing were applied to analyse the identification of the main factors that lead to the formation of public distrust in urban development strategies. The sociological research methods such as surveys, in-depth interviews, expert studies, roundtable discussions were used in the practical testing of TRuSt method, especially in order to identify the effects of changes in the level of involvement of public and various stakeholder groups in the process of developing urban strategy. Moreover, 21 local government officials were surveyed through face-to-face interviews for this study.

The authors used the systematic methods of analysis on this subject matter in order to study the existing theoretical developments and the practice of their application in Ukraine. Finally, the practical testing of the TRuSt method was performed by applying a case-study method.

Results and Discussion

In part, the issue of improving the effectiveness of strategies for the development of cities and territories have been also investigated in the scientific papers of the following scientists: A. Vergara-Romero, & R. Sorhegui-Ortega (Vergara-Romero, & Sorhegui-Ortega 2020), O. Ugurchiev, S.-A. Dovtaev, L. Tochieva, A. Sabanchiev, & A. Misakov (Ugurchiev et al., 2019), S. Golikov, O. Korneyko, & E. Krasova, (Golikov, Korneyko, & Krasova, 2018), T. Kolomoiets, N. Galitsina, A. Sharaia, V. Kachuriner, & O. Danylenko (Kolomoiets et al., 2021).

According to the survey «Participatory Democracy and Reasonable Decisions at the Local Level in Ukraine» (that was conducted in 2018 and implemented by the Association of Ukrainian Cities and the Norwegian Association of Local and Regional Authorities in cooperation with the Norwegian Institute for Urban and Regional Research funded by the Norwegian Ministry of Foreign Affairs), the residents of Ukrainian cities and united territorial communities have a low level of awareness about decentralization reform. Around 37% of respondents from urban areas believe that the decentralization reform has affected the development of their locality. As far as experts are concerned, this figure rises to 60%. Only 32% of urban residents consider that the promises of local authorities are worthy of trust.

Approximately 37% of them agree that the local authorities of their cities listen to the opinion of citizens, whereas 54% – totally deny it (Association of Ukrainian Cities, 2017).

However, according to the authors of the study, these examples do not fully describe the problematics and the opportunities for interaction

Similar numbers are shown by «Active Group» company in their «All-Ukrainian Omnibus» research on the level of credibility in the central

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and local authorities and the results of local elections among Ukrainian people. Only 33,6% of urban residents positively assessed the level of their trust in the mayor of the city. In fact, the average weighted score of the urban residents' trust in the mayor was 3,09 on a scale from one to five. Only 29,4% of respondents expect the significant positive changes as a result of the 2020 local elections (Active Group, 2020).

Around 32% of Ukrainians do not trust anyone in matters of politics. According to the study entitled «Decentralization and Local Government Reform: the Results of the Fifth Wave of the All-Ukrainian Sociological Survey», which was conducted during AugustSeptember 2020 by the «Social Indicators» Centre at the request of «Decentralization and Local Government Reform in Ukraine» Program of the Council of Europe, 43% and 34% of Ukrainians do not trust politicians and the government, while 28,5% generally consider that nothing depends on them (Council of Europe, 2020).

The analysis of these studies allowed us to assume and conclude that these three different studies actually lead to the same end result: a significant part of Ukrainians do not trust the authorities (in this case – the local ones) and do not expect that the significant positive changes can be achieved. The reasons are beyond the scope of this study, but it is important that they provide a basis for a substantial consequence, namely the high level of skepticism about the local government initiatives, which are most notably manifested in criticism of strategies and plans for urban and territorial development. This skepticism creates a problem that is about the reduction in effectiveness of the implementation of these strategies, which is already visible during their development.

In addition, according to the authors of this study, the following factors influence the decline in efficiency:   

The real motives for creating a strategy.

The format of work on the strategy development.

The role of the public and the form of its participation in the strategy development.

The real motives are usually different from public ones. As noted above, 21 local government officials were interviewed for this study, 2/3 of whom noted that the main motive for developing the strategy was «the external necessity». This includes the requirements of

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applications for grant / assistance from international beneficiaries of grants, the requirements of regional governance and the requirements of party leadership.

Thus, the identified and analysed factors allow us to assume that there is a situation where a large number of urban development strategies are established due to the need to meet the external requirements, the work is not public, and the public role and its participation in this work is not that essential. In this regard, after taking into consideration the basic level of distrust in the city authorities as well, it is quite logical to get a high level of criticism and a low level of support for any presented strategy.

Moreover, the criticism of the strategy unfolds from several stakeholder groups: the political parties that are in opposition to those who control the local government; the experts who are not included in the strategy development team; the nongovernmental organizations and activists who are dissatisfied with their role and the level of participation in the strategy development.

It is fairly obvious that the scale of criticism is many times greater than the potential of the city government taking into account the modern media opportunities.

The analysis of the scientific achievements of international researchers, together with our own study allow us to come to conclusion that this problem is inherent not only in Ukraine but actually in any country in the world as well. The reason for this is that it is based on the transformation processes, which are provoked by changes in the communication models and the rapidly growing media opportunities of individuals, groups and associations. Deloitte company notes this in its analysis of Government trends 2020. J. O'Leary and T. Murphy, the researchers of the company, propose a new approach to increase the effectiveness of mediation between authorities and stakeholders in the urban and territorial development, and the point is that «it is better for state and local governments to help citizens “do the right thing” in the first place than to go through the painful process of penalizing those who misbehave» (O'Leary, & Murphy, 2021).

In summary of the first stage of our study, the authors believe that it is necessary to have a special technique aimed at overcome the problem of inhibitory factors and to increase the effectiveness of elaboration and implemention of

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22 urban and territorial development strategies and which can minimize the following factors:   

the low degree of public trust in the local authorities; the high degree of dependence of local government on political parties of the national level; the low degree of internal needs and motivation to create the development strategies.

In addition, it takes into consideration the following factors:     

the low communications capabilities level of most local governments; the high degree of society discretization on various grounds, such as language, income, the level of public consciousness, etc.; the low level of connection of political parties with the public sector; the high level of social tension and the long duration of the economic crisis in the country; a small number of modern professional managers, project managers in the local governments.

The second stage of our study is particularly devoted to the description of the developed TRuSt method, which is based on the projectscenario approach.

Since 2014, the ReputationLabТМ Research Centre has analysed the situation with the elaboration and implemention of urban and territorial development strategies in Ukraine as part of its own studies. One of the conclusions is the low level of communication during the development and presentation of strategies, that becomes one of the key factors of a high level of criticism, which in turn slows down the implementation of the strategy and mitigates / devalues the public assessment of its effectiveness (Hvylya, 2017).

The methodology of project-scenario approach, which is based on both the classical tools and the own laboratory developments, has been introduced in order to increase the efficiency of the development process and to improve the readiness for implementation.

The essence of the project-scenario approach is that the strategy is developed publicly, with a wide level of media coverage and the involvement of local experts and political parties.

The development of the strategy is based on the existing potential of the city, the project ideas and their activists, while the external experts act as

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moderators who help the city management together with the city assets to refine these ideas to the level of real projects (business plans) through the use of methods of participation, modeling and mediation and to formulate a nuanced image of the future, which largely includes the images of the future key stakeholder groups. Moreover, the project ideas are comprehensively tested for the realistic implementation and the practical value in the process of formulating a strategy. At the next stage, the tested projects (including their implementation teams) are combined into the Development Strategy. The media program covering the process and the opinion surveys provide an interactive connection with the city community.

The Triad Retrospective Scripting (TRuSt) method was taken as a basis, the essence of which is that it forms an organic connection between the individual elements (subsystems) and the cohesion of different experts’ visions into a holistic system of scenarios of transition from the current state to the planned (future) one. At the same time, the work begins with determining the image of the future (planned state) of the multifactor system, which generally meets the goals and aspirations of all stakeholder groups involved in the strategy development. Then the probable scenarios (orbits) of the movement of various subsystem factors are determined, which involve the consideration of the influence of the subsystems on each other and the creation of an interconnected action system (achieving results) (Kashpur, 2015).

Therefore, the technique provides: 

 

the manifestation of individual experts’ subjective visions and their representation as an integral system of multifactor vision (helicopter view); building links between actions and their consequences (results) in different subsystems; the creation of step-by-step system transition scenarios from one state to another that are synchronized but not rigidly connected to the timeline.

This methodology was supplemented by sociological research and media program of work coverage, which provided the interactive communication (testing) of working versions of the strategy and its elements (projects) as well as significantly increased the number of experts and city residents who were informed and involved in its development.

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The methodology consists of several (usually 35) acts of work that have a similar architecture and that are built on such principle as collective vision – individual expert visions – collective vision of a new level.

Thus, each stage has the following architecture: a sociological and expert research, a modeling session, the work in the project groups, the

presentation of the results of working groups and their public discussion, the transition to the next act.

The elaboration is completed by public presentation of the strategy, its subsystems and projects. The details are available in an operation algorithm of the Figure 1.

Figure 1. An algorithm for the application of TRuSt technique. Source: Authors’ computation

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24 According to its authors, the advantages of this approach are:   

 

feasibility – the projects are based on the local staff, they have a clear financial model and a certain role in the urban development; resistance to criticism – the involvement of representatives of different pressure groups turns them into allies; media prominence – the coverage continues throughout the development and increases the public confidence in the proposed solutions and projects; flexibility – the system responds quickly to changes in the external and internal environment; publicity – the active communication with the public on their own information platforms and the systematic sociological research.

The combination of public and business assets of the city with the systematic experience of subject matter experts creates the space of realistic projects. The sociological research system synchronizes the project space with the urban residents’ expectations. Own media platforms and media products maintain the interactive communication with the city residents and provide public support. A comprehensive scenario development strategy is built on this basis.

The third stage of the study is its practical testing. Consider a specific example of the method: December 2020 – February 2021, the city of Konotop (Sumy Region in Ukraine) with a population of 86,000 inhabitants (figure for the year 2019).

The input data: the city does not have the Development Strategy and the experience in its creation, the revenues of the city have decreased by 198 million hryvnias in 2020 compared to 2019 (from 729.3 million hryvnias to 531,3 million hryvnias) (Konotop city council, 2018), the low clarity level of the city authorities (Konotop city council, 2019), the absence of a coalition in the newly elected city council, the active opposition of various political groups in the media, the development takes place during the re-election of the mayor. Objective: to develop a framework for a strategic development plan, which will be supported by a significant number of experts and city residents, and that will allow to finalize it in the city council after the election for mayor (Transparency international group, 2021).

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The strategy development customer: the local communications company within the framework of its own program to promote the urban development (corporate social responsibility).

The initial sociological research shows that more than 40% of Konotop residents are dissatisfied with the living conditions in their city, and about 30% of them believe that the life has deteriorated over the past two years. Furthermore, according to the sociological and expert surveys, the following current problems of urban life were identified, such as a lack of jobs, the poor condition of roads, the provision of amenities to the residential areas, the quality of medical care, the development of educational infrastructure and the quality of education, the development of cultural infrastructure, the welfare assistance of the most disadvantaged sections of the population (Social, Political & Market Research, 2020).

The project on the urban development strategy began with a modeling session («Konotop Development Plan», December 12, 2020), which was attended by the invited subject matter experts, three candidates for mayor, the representatives of various political parties from the city council and more than 30 local activists who are representatives of public associations (Konotop Development Plan, 2020).

As the result of this session, five working groups responsible for the areas such as transport, social sphere, education, culture, infrastructure projects have been created. One of the candidates has also been selected as the public figure of the strategy development project.

More than 20 working group meetings were held to discuss and develop the project ideas during December 2020. A Facebook page Konotop Development Plan, a project website as an online mayor reception with the possibility of prompt submission of proposals for the improvement of the city (konotop.org.ua, 2020), the community of private and corporate pages of the project participants and the press service were created for media coverage of the work. The total media coverage of the first stage (December 2020) amounted to more than 0,5 million contacts and more than 100,000 video views. Three public organizations and several initiative groups have joined the working group.

At the end of the first act of work, that is early January 2021, the presentations of the first results of the working groups on medicine, education, housing and utilities infrastructure, social sphere,

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cultural development, young people's issues were shown. The total media coverage of the presentations amounted to about 1 million contacts and more than 200,000 video views. The response rate averaged 100-200 reactions to one message, and less than 5% of them were negative.

The second act of the work began with sociological research which showed a high level of public support for the project by more than 85% of respondents, who knew about the beginning of the elaboration of urban development strategy, supported the idea and its participants. At the same time, about 40% of the city residents were unaware of the work on the strategy when the survey was conducted.

The results of expert research (interviews) also showed a fairly high level of support for the project to develop an urban strategy since the vast majority of interviewed experts and city council members expressed either willingness to join a particular working group or public support for the project.

Taking the above mentioned into consideration, the following conclusion can be drawn that more than 100 experts, the local government officials, the deputies in the Regional Council and Verkhovna Rada of Ukraine joined in the work on the strategy. The project was supported by four out of six political forces of the city council (a total of 19 deputies out of 38). The roadmap and the strategic vision of the city development directions were prepared and 23 project ideas were handled. Media coverage was about 2 million contacts. A separate website, an online mayor reception, a Facebook page, more than 20 video products, more than 100 text products (articles, posts on social networks, etc.) were created and two waves of sociological and expert research were conducted during the work.

According to the authors of the project and the authors of this study, the main result is the fact that the work on the strategy was continued, and much of the work was included in the agenda of the city council despite the victory of another candidate in the election for mayor.

From the scientific point of view, the considered technique and an example of its practical application contains the following scientific value:  it confirms the assumption that the increase of the stakeholder group mediation effectiveness with different patterns of behavior

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and goals is one of the most pressing issues in both theoretical research and urban and territorial management practice within the context of the everyday world of dynamic growth of communications opportunities;  it demonstrates the positive results of one of the possible approaches since a high level of public involvement in the development of strategies of various stakeholder groups minimizes the number and the intensity of negative feedback, even in the situation of steady growth of distrust in government;  the considered TRuSt method develops the existing methods of social mediation and joint action moderation of different stakeholder groups within the framework of the modern open information space concept.

Regarding the scientific and practical value of this technique, the authors of the study consider that it is worth mentioning the following points of its completion and the opportunities for its development and improvement:  it is necessary to have clearer explicitation and formalization of the final products and documents of both the strategy itself and its project components;  further attention to the scientific and theoretical basis of the elements of the methodology, which were developed by its authors and their combination with those elements that are traditionally used in such work;  more detailed definition of the role and structure of expert and sociological research;  wider range of practical testing: in other cities of Ukraine, other countries and outside the election situation;  expansion of the application range from the urban level to the regional and territorial ones.

Based on the above and taking into account the recommendations, the authors of this study consider that it is appropriate to use this technique as a key or additional one in the process of developing urban and territorial strategies.

According to the authors of this study, the main advantages of the technique are:  the clarity and the processability of both the elements and the technique in its entirety;  the ability to scale it without losing integrity and efficiency;  the high level of involvement of local experts, activists and the public;

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26  the high mediation potential in building a common workspace of various stakeholder groups with different professional focuses and different vectors of vision of the goals and objectives of the urban and territorial development strategy;  the high media potential, which contributes to the consolidation of public forces and the increase of confidence in local authorities, both in the field of application of the technique and at the level of the country in its entirety.

collaborative work on the territorial development strategy, wider and deeper involvement of the public in this type of work and the minimization of destructive criticism.

The practical testing of the TRuSt method has shown that it allows to significantly reduce the level of negative feedback as well as to involve the stakeholder groups, that are in opposition to each other under other conditions, in collaborative work.

Bibliographic references

Conclusions The authors of this study consider that the issue of elaboration of methods for involvement of all levels of experts and the public in elaborating urban and territorial development strategies in order to increase their effectiveness is relevant in scientific and practical activities of Ukraine and other countries where the process towards democracy is taking place. The results of the study confirm that the effective elaboration and implementation of development strategies in modern society require better understanding of the goals and the behaviour patterns of various stakeholder groups, including the public, and their more active involvement in the development of urban and territorial strategies.

Accordingly, the development and testing of methods that comprehensively apply the research tools, the mediation and the media produce promising results, forming a single project volume which has the following characteristics:   

involvement of representatives of the widest possible range of stakeholder groups; high level of media coverage; complexity of the research that provides fast and effective feedback.

As a result, it is possible to build a reflective project system capable of effectively develop the strategies with optimal consideration of the goals and requests of different stakeholder groups, but without losing the overall goal of such a strategy.

The methodology that has been studied is considered to be promising, especially considering the decentralization processes in Ukraine and the global processes of state and local government transformation.

The given example of practical approbation shows that the technique under investigation gives positive results especially in the aspect of consolidation of various stakeholder groups in

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Active Group. (2020). Evaluation of the results of local elections. Retrieved february 5, 2021, from https://activegroup.com.ua/wpcontent/uploads/2020/12/201206_omnibus_ mist_vybory.pdf Association of Ukrainian Cities. (2017). Final report on the results of public and expert opinion surveys. Retrieved July 5, 2021, from https://auc.org.ua/sites/default/files/library/a mu_2017_ua_mista_otg_new.pdf Council of Europe (2020, September).

Enhancing decentralisation and public administration reform in Ukraine Decentralization and local government reform. The results of the fifth wave of sociological research among the population of Ukraine. Retrieved July 5, 2021, from http://www.slg-coe.org.ua/wpcontent/uploads/2020/11/2020Report_UKR_ ukr_1.pdf Dallabrida, V.R. (2015). Territory planning and management: the theory debate in Brazil and a prospect of practice according to theoretical contributions on territorial governance.

Revista Brasileira de Gestão e Desenvolvimento Regional, 11(4), pp. 51-77.

Retrieved July 5, 2021, from https://rbgdr.net/revista/index.php/rbgdr/arti cle/view/2031 Golikov, S., Korneyko, O., & Krasova, E. (2018). The strategy of territory socioeconomic image formation. Amazonia Investiga, 7(15), pp. 262-270. Retrieved from https://amazoniainvestiga.info/index.php/am azonia/article/view/456 Hvylya. (2017, 6 November). Ukraine in the world 2030. Retrieved 5 July 2021, from https://hvylya.net/analytics/society/ukrayinau-sviti-2030.html Jouini, M., Burte, J., Biard, Y., Benaissa, N., Amara, H., and Sinfort, C. (2019). A framework for coupling a participatory approach and life cycle assessment for public decision-making in rural territory

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management. Science of The Total Environment, 655, pp. 1017–1027. DOI: https://doi.org/10.1016/j.scitotenv.2018.11.2 69 Kashpur, A. (2015). Triad Retrospective Scripting (TRuSt). Reputation (pp.

7).

Retrieved from https://reputationbook.org/triadretrospective-scripting/ Kolomoiets, T., Galitsina, N., Sharaia, A., Kachuriner, V., & Danylenko, O. (2021).

International experience of public-private partnership in agriculture. Amazonia Investiga, 10(41), pp. 160-168. DOI: https://doi.org/10.34069/AI/2021.41.05.16 Konotop city council.

(2018, 21 December). About the city budget for 2019. Retrieved July 5, 2021, from https://konotop-rada.gov.ua/wpcontent/uploads/2018/11/Budget_2019.pdf Konotop city council.

(2019, 21 December). About the city budget for 2020. Retrieved July 5, 2021, from https://konotop-rada.gov.ua/wpcontent/uploads/2019/11/%D0%A0%D1%9 6%D1%88%D0%B5%D0%BD%D0%BD% D1%8F-1-1.pdf Novikov, S., & Veas Iniesta, D. (2019). Analysis of development trends in the innovation industry of the Russian Federation.

Amazonia Investiga, 8(19), 298-307.

Retrieved from https://amazoniainvestiga.info/index.php/am azonia/article/view/231 O'Leary, J., & Murphy, T. (2021). How state and local governments can use nudge thinking to improve outcomes. Deloitte. Retrieved July 5, 2021, from https://www2.deloitte.com/za/en/insights/foc us/behavioral-economics/how-state-localgovernments-can-apply-nudge-thinking.html Simone, C. & Barile, S., & Calabrese, M. (2018).

Managing territory and its complexity: a decision-making model based on the viable system approach (VsA). Land Use Policy, 72, pp.

493-502.

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Social, Political & Market Research. (2020, December 19). Socio-political situation in Konotop city OTG in mid-December 2020. Retrieved July 5, 2021, from https://sociopolis.ua/images/Konotopska_O TG_12_2020.pdf Stewart, J., & Lithgow, Sh. (2015). Problems and prospects in community engagement in urban planning and decision-making: three case studies from the Australian Capital Territory. Policy Studies, 36, pp.18-34. DOI: https://doi.org/10.1080/01442872.2014.9810 61 Transparency international group. (2021, 31 March). Rankings of transparency and accountability-2020. Retrieved July 5, 2021, from https://wiki.nazk.gov.ua/wpcontent/uploads/2021/04/Analitychnyj-zvit.Rejtyngy-prozorosti-ta-pidzvitnosti-mist2020-1.pdf Ugurchiev, O., Dovtaev, S.-A., Tochieva, L., Sabanchiev, A., & Misakov, A. (2019).

Essence and features of leading development territory creation taking into account global factors. Amazonia Investiga, 8(19), pp.

631-637.

Retrieved from https://amazoniainvestiga.info/index.php/am azonia/article/view/278 Ustugova, S., Parygin, D., Sadovnikova, N., Finogeev, A., & Kizim, A. (2016).

Monitoring of Social Reactions to Support Decision Making on Issues of Urban Territory Management. Procedia Computer Science, 101, pp.

243-252.

DOI: https://doi.org/10.1016/j.procs.2016.11.029 Vergara-Romero, A., & Sorhegui-Ortega, R. (2020). Local development factors from the organizational management perspective. Amazonia Investiga, 9(33), pp.

46-50.

DOI: https://doi.org/10.34069/AI/2020.33.09.5 Zavgorodny, S. (2020, Decmber 21). Konotop Development Plan. 1st session [Video].

YouTube. https://www.youtube.com/watch?v=XpHm MPKUuug&feature=youtu.be

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DOI: https://doi.org/10.34069/AI/2021.44.08.3 How to Cite: Danylchuk, L., Yosyfovych, D., Kohut, Y., Todortseva, Y., & Kozyra, P. (2021). New challenges in the problem of combating human trafficking in Ukraine. Amazonia Investiga, 10(44), 28-37. https://doi.org/10.34069/AI/2021.44.08.3

New challenges in the problem of combating human trafficking in Ukraine НОВІ ВИКЛИКИ У ПРОБЛЕМІ ПРОТИДІЇ ТОРГІВЛІ ЛЮДЬМИ В УКРАЇНІ Received: July 10, 2021

Accepted: August 25, 2021

Written by: Larysa Danylchuk11 https://orcid.org/0000-0002-7156-5071 Web of Science Researcher ID AAR-2259-2021 Danylo Yosyfovych12 https://orcid.org/0000-0001-5510-9781 Yaroslav Kohut13 https://orcid.org/0000-0001-8027-0171 Yuliia Todortseva14 https://orcid.org/0000-0002-4708-581X Web of Science Researcher ID AAR-2606-2021 Petro Kozyra15 https://orcid.org/0000-0002-3046-9841 Abstract

Анотація

The article presents the author’s results of theoretical and empirical analyzes of challenges in combating human trafficking in Ukraine.

Theoretical analysis showed that human trafficking is an interdisciplinary problem and is represented by a number of studies by scientists in various scientific fields in the domestic and foreign scientific space. It has been established that currently there is no research on new challenges in combating human trafficking in Ukraine. Empirical analysis of new challenges in combating trafficking in human beings in Ukraine was carried out through the implementation of a polygon study and interpretation of the results. The obtained data outline new challenges in the problem of combating human trafficking in Ukraine, such as: use for selfish purposes, forced donation, trade in biological/genetic material, reproductive programs/surrogacy. The results suggest that the new challenges in combating human trafficking

У статті представлені результати теоретичного та емпіричного аналізу викликів боротьби з торгівлею людьми в Україні. Теоретичний аналіз показав, що торгівля людьми є міждисциплінарною проблемою і представлена низкою досліджень вчених у різних наукових галузях вітчизняного та зарубіжного наукового простору. Встановлено, що на даний час в Україні немає досліджень щодо нових викликів у боротьбі з торгівлею людьми. Емпіричний аналіз нових викликів у боротьбі з торгівлею людьми в Україні був проведений шляхом польового дослідження та інтерпретації результатів. Отримані дані окреслюють нові проблеми у боротьбі з торгівлею людьми в Україні, такі як: використання в корисливих цілях, примусове донорство, торгівля біологічним/генетичним матеріалом, репродуктивні програми/сурогатне материнство. Результати

11

Doctor of Pedagogical Sciences, Associate Professor, Professor of Social Work and Pedagogics Department, Khmelnytsky National University, Khmelnitsky, Ukraine.

12 Candidate of Law, Associate Professor, Deputy Dissertator of the Institute for Training Specialists for National Police Units, Lviv State University of Internal Affairs, Lviv, Ukraine.

13 Candidate of Juridical Sciences, Associate Professor, Head of Department of Social and Humanitarian Training, Lviv State University of Internal Affairs, Lviv, Ukraine.

14 Candidate of Pedagogical Sciences, Associate Professor of Psychology and Social Work Department, Odessa Polytechnic State University, Odessa, Ukraine.

15 Candidate of Psychological Sciences, Associate Professor of Practical Psychology Department, Institute of Management, Psychology and Security, Lviv state university of internal affairs, Lviv, Ukraine.

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in Ukraine are a real platform for transnational crime. It was stated that such circumstances require strengthening of international cooperation in combating transnational human trafficking, legal regulation and improving the domestic legal framework with systematic and full informing of Ukrainian people about consequences and new challenges in combating human trafficking.

Keywords: crime, legal regulation, forced donation, human trafficking, reproductive programs, surrogacy.

свідчать про те, що нові виклики у боротьбі з торгівлею людьми в Україні є справжньою платформою для транснаціональної злочинності. Зазначено, що такі обставини потребують посилення міжнародної співпраці у боротьбі з транснаціональною торгівлею людьми, правового регулювання та вдосконалення вітчизняної правової бази із систематичним та повним інформуванням українського населення про наслідки та нові виклики у боротьбі з торгівлею людьми. Ключові слова: злочинність, правове регулювання, примусове донорство, торгівля людьми, репродуктивні програми, сурогатне материнство.

Introduction Globalization has not solved the problem of transnational crime, among which trafficking in human beings, according to the United Nations Office on Drugs and Crime, ranks third in terms of income, after arms and drug trafficking.

Although human trafficking has deep historical roots, its relevance in the 21st century is confirmed by the fact that virtually all countries in the world, regardless of their political system or economic stability, are affected by illegal trade flows and millions of people become “human commodities” every year. Unfortunately, such world trends also take place in Ukraine. Official statistics on human trafficking in Ukraine exist and show more than 230,000 people between 1991 and 2020, but experts and scientists say that the actual number of victims is several times higher and cannot be established.

The world community recognizes trafficking in human beings as a violation of fundamental human rights and freedoms, a violation of the principle of the equal dignity of all human beings and the rule of law stated in UN declarative documents. Ukraine has also joined the international fight against this negative phenomenon at the legislative and professional and practical levels, ratifying international conventions, protocols and resolutions. Also adopting its own laws and regulations, including the Laws of Ukraine: “On Ratification of the United Nations Convention against Transnational Organized Crime and the Protocols thereto” (Law No. 1433-IV, 2004), “On Combating Trafficking in Human Beings” (Law No. 3739-VI, 2012) and the Resolutions of the Cabinet of Ministers of Ukraine: “On the National Coordinator on Combating Trafficking Human Beings” (Resolution No. 29, 2012), “On

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Approval of the Regulations on the Establishment and Operation of the Unified State Register of Crimes of Trafficking in Human Beings” (Resolution No. 303, 2012), “On Approval of the Procedure for Establishing the Status of a Person Who Has Suffered from Human Trafficking” (Resolution No. 417, 2012), “On Approval of the Procedure for Interaction of Entities Carrying Out Measures in the Field of Combating Trafficking in Human Beings” (Resolution No. 783, 2012).

However, socio-political changes in Ukraine in 2013-2014 and the military conflict in eastern Ukraine in 2014-2021 led to weaknesses in the further implementation of domestic antitrafficking policy, including: the financial crisis; increasing unemployment and migrant workers; incomplete reforms of the legal system; administrative reform; increase in social problems, etc.; insufficient interaction between the authorities and the public in the problem of human trafficking and, as a consequence, the emergence of new challenges.

The strategic importance of the issue of combating human trafficking and the above circumstances determine the problem of new challenges in combating trafficking in human beings in Ukraine to be considered relevant in time and one that requires special research.

The purpose of the article is a theoretical analysis of the state of development of the problem of human trafficking in the Ukrainian and foreign scientific space and an empirical analysis of new challenges in combating human trafficking in Ukraine. In accordance with the stated goal, the tasks were defined: 1. Theoretically analyze the

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30 state of development of the problem of combating trafficking in human beings in Ukraine in the domestic and foreign scientific space. 2. Empirically analyze new challenges in combating human trafficking in Ukraine.

3. Based on the obtained experimental data to formulate generalized conclusions and prospects for further research on new challenges in combating human trafficking in Ukraine.

Methodology To achieve the goal and defined tasks and to obtain empirical research data, the following methods were used: 1) theoretical methods: analysis, systematization, comparison, generalization of scientific papers on human trafficking in Ukraine and abroad; 2) empirical methods: questionnaires, groupings, surveys, detailing – for the implementation of polygon research; methods of quantitative and qualitative analysis of experimental data, graphical method of statistical data processing (construction of tables), comparative method – for processing and interpretation of the obtained results.

Theoretical framework or Literature Review The problem of human trafficking is interdisciplinary and is represented in the Ukrainian scientific space by research in various fields, and therefore, scientists try to study it from the standpoint of the science they represent.

The analysis of theoretical and applied aspects in the field of combating human trafficking is covered in the works of Sviatun (2005); Ahtyrska, Yudenko, Lavrovska, (2006); Punda (2013); Lukach (2016); Turok (2016); Mruchkovska, Pakhomiuk, Kocherga (2017).

Protection of the rights and interests of victims of human trafficking: Pashchenko (2020). Criminal liability for human trafficking: Lyzohub (2003); Pidhorodynskyi (2005). Investigation of crimes related to human trafficking Kuts, Orlean (2007); Horbasenko (2013); Kravchenko (2020). Social prevention of human trafficking: Levchenko, Trubavina (2007); Danylchuk (2018).

Combating and prevention of child trafficking: Kovalchuk (2010); Shcherbakovska (2012); Lesko (2019); Faryma (2021). Mechanisms of public administration in the field of combating human trafficking: Zhukovska (2017).

Trafficking in women: Dzhezhyk (2021); Punda (2014) and others. It should be noted that a

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number of studies on human trafficking are empirical.

At the same time, foreign scholars (Hodge (2008); Hopper (2017); Kidane (2011); McClain, Garrity (2011); Panigabutra-Roberts (2012); Shinkaruk, Khaydarzoda, (2016); Yakushko, (2009) and others) also presented their research on the problem of human trafficking. However, we have not found any special research on the problem of human trafficking in Ukraine. In the public sphere, there are a number of studies edited by the UN, OSCE, IOM, ECPAT, the British Council and other international and nongovernmental organizations, which are mainly methodological and statistical or comparative and legal in nature “Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

The EU Strategy towards the Eradication of Trafficking in Human Beings 2012–2016” (European Commission, 2012); “Combating Trafficking in Persons: A Handbook for Parliamentarians” (UNODC, 2009); “ILO Action Against Trafficking in Human Beings” (ILO, 2008) and others.

An analysis of scientific sources on trafficking in human beings has shown that, despite a number of publications, new challenges in combating trafficking in human beings remain insufficiently covered and substantiated.

Ukrainian law, like that of most countries, recognizes trafficking as a crime. According to the Law of Ukraine “On Amendments to Article 149 of the Criminal Code of Ukraine on Alignment with International Standards” (Law No. 2539-VIII, 2018) in Article 149 part 1 it is stated: “Trafficking in human beings, as well as recruitment, transfer, concealment, transfer or receipt of a person committed for the purpose of exploitation, using coercion, abduction, deception, blackmail, material or other dependence of the victim, his vulnerable condition or bribery of a third person who controls the victim to obtain consent for his exploitation – shall be punishable by imprisonment for a term of three to eight years”.

Based on the concept of “human trafficking” from the above article, Ukrainian scientists identify and study the problem from different positions and approaches, namely: from globalization: as a negative consequence of globalization;

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from the national approach: as a threat to the national security of Ukraine; from the legal approach: as a violation of human rights – a crime punishable under the current legislation of Ukraine; from the political approach: as a result of sociopolitical changes and political crises; from the economic approach: as consequences of economic crises – unemployment and lack of money and reduction of financing of social programs; from the demographic approach: as the imperfection of demographic and migration policy of Ukraine; from the social approach: as a violation of moral and social norms of society; from the socio-pedagogical approach: as a result of the lack of established life competencies based on respect for human rights; from the preventive approach: as the understanding of responsibility for one’s own life and one’s own actions, including the crime committed (in the context of mediation or involvement in the situation of human trafficking); from the psychological and medical approach: as a need to rehabilitate and protect victims from trafficking.

We intentionally do not detail existing developments on definitions, factors, legal and financial aspects of trafficking, which are sufficiently substantiated and presented elsewhere. At present, in the Ukrainian scientific discourse, the distinction/identification of the concepts of “human trafficking” and “slavery” remains controversial. The issues of ways to get into the situation of human trafficking and responsibility for human trafficking are debatable. The attitude of Ukrainians themselves towards victims of human trafficking and the confidentiality of information about them, etc. are ambiguous.

It should be noted that the Ukrainian media are actively involved in informing the public about the problem of human trafficking. The most discussed are sexual exploitation and forced labour. At the same time, we believe that there are new challenges in the problem of combating human trafficking, which are due to the situation in Ukraine.

Research procedure In order to clarify the attitude of Ukrainians to the problem of human trafficking and new challenges to it, we conducted a polygon study, which covered the following regions of Ukraine:

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Khmelnytskyi, Lviv, Ivano-Frankivsk, Ternopil, Vinnytsia, Odesa, Kyiv, Zaporizhzhia, Kharkiv, Zhytomyr, Volyn, Poltava, Kherson. The study was conducted in February-April 2021. In general, the polygon study involved the development of experimental material, data collection, preparation of collected data for processing, their analysis, mathematical processing, formulation of conclusions, as well as determining the prospects for further scientific research.

Based on the scientific and professional experience, the experience of practical coaching/volunteering in international and nongovernmental organizations involved in combating human trafficking and studying scientific and pedagogical literature on this issue, members of the research laboratory “Creative Pedagogy and Public Relations” of Khmelnytskyi National University developed a questionnaire of 2 blocks and 10 questions for polygon research. And Block I contains general questions (1-5) about human trafficking; Block II contains questions (6-10) of a specific nature – one’s own attitude to new challenges to the problem of combating human trafficking. Its content was discussed and approved with colleagues from higher education institutions – partners who were involved in the study. In addition to teachers of higher education institutions, master's degree students majoring in “Social Work”, “Law”, “Law Enforcement”, “Psychology” were involved in the implementation of the polygon research.

We conducted the polygon research through direct surveys and questionnaires and through social networks and messengers, in compliance with the mandatory condition of voluntary confidentiality and personal data of its participants. The study involved men and women aged 18-60 + years (different professions and types of employment) – residents of cities and rural areas of the mentioned regions of Ukraine.

The study covered 2,836 people, but 17 people refused at different stages of the survey (because voluntary consent was a prerequisite), and thus 2,819 people took part in the pure study; 1353 men and 1466 women.

For the mathematical validity of the results of the polygon research according to the answers of the respondents, we formed five study groups in close proximity to each other and proportionality by age and sex (men and women): Group I – 18-29 years old (568 people); II groups – 30-39 years old (564 people); Group III – 40-

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32 49 years old (566 people); IV group – 50-59 years old (562 people); Group V – 60+ years old (559 people).

present the results of the polygon study from different points of view.

Results and Discussion

Processing of research results was carried out by crediting positive answers by using methods of quantitative and qualitative analysis of experimental data, graphical and comparative methods. This made it possible to analyze and

The generalized results of the research are presented in percentage (%) according to each of the questions of the questionnaire and the division by age groups and the article of the respondents in Table 1.

Table 1.

Generalized results of the polygon research* Distribution by age groups and gender of respondents (in % value) Group І Group ІІ Group ІІІ Group IV Group V (18-29) (30-39) (40-49) (50-59) (60+) M F M F M F M F M F

Question № Do you know anything about the problem of human trafficking?

In your opinion, is the problem of human trafficking relevant for Ukraine?

What ways to get into the situation of human trafficking do you know?

Do you know: there is a criminal liability for human trafficking in Ukraine?

Do you think that the person should be responsible for his life, actions, deeds?

Would you agree to employment / earnings through illegal intermediaries?

Would you agree to sell your biological material / organ to make money?

Do you see extortion and blackmail as ways to get into a situation of human trafficking?

Is it possible to get into a trafficking situation via the Internet and social networks?

Would you agree to participate in a reproductive program?

100

100

100

100

100

100

98

100

97

99

98

99

97

100

95

96

94

97

95

89

100

100

98

97

89

88

87

81

73

61

99

97

82

80

84

87

62

64

53

49

100

100

100

99

100

97

98

92

78

64

100

95

96

90

98

82

95

98

97

98

32

27

41

39

48

13

9

13

5

2

3

6

7

4

14

11

5

2

3

2

27

43

54

61

42

56

31

39

21

23

4

28

17

49

34

38

12

7

0

2

*The following table showing the results of the survey was developed by the authors.

We present a detailed analysis of the results of the polygon study. The results of answers to the question №1 “Do you know anything about the problem of human trafficking?” showed a fairly high awareness of this concept – 100% in the vast majority of groups of respondents, arguing that human trafficking is a violation of human rights.

The age group (60+) showed approximate figures: men 97% and women 99%, as well as men in the group (50-59) – a rate of 98% gave a positive answer, linking it mainly with the slave trade of Ancient Egypt and Rome.

To question №2: “In your opinion, is the problem of human trafficking relevant for Ukraine?” in almost all groups the percentage is from 94% to 100%; respondents gave a positive answer. It is

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slightly lower in women of group V – 89%.

Respondents explain their positive answers by political and economic transformations in Ukraine.

To question №3: “What ways to get in the situation of human trafficking do you know?” approximate indicators in groups I-II from 100% to 97%; in group III and men of group IV – 8987%. The indicators of women of group IV – 81% and group V – 61% in the equation and men of group V –73% are lower. The vast majority of respondents named sex services, marriage and seasonal employment abroad. It is interesting that the respondents of groups I and II named social networks as a way to get into the situation of human trafficking. This is due to the fact that the

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respondents of these groups are young people, and therefore gained some knowledge about the problem while studying in educational institutions.

To the question №4: “Do you know: there is a criminal liability for human trafficking in Ukraine?” the highest percentage of positive responses is in group I – 99-97%, respectively; the answers of the surveyed groups II-III are approximately proportional – 87-82%. This is due to the fact that the respondents of these groups are young people, and therefore gained some legal knowledge about the problem while studying in educational institutions. Significantly lower are the indicators of group IV – 64-62% and especially group V – 53-49%. Respondents from these groups reported a lack of knowledge about criminal liability for human trafficking in their own country.

To the question №5: “Do you think that a person should be responsible for his life, actions, deeds?” The respondents of groups I-IV gave positive answers, which testify to high indicators – 92-100%, as most of them were born and live in Independent Ukraine. However, respondents in group V, men – 78% and especially women – 64% link responsibility for their lives, actions, deeds with the state as a constitutional guarantor of their right to life. Such circumstances can also be explained by the fact that the respondents of the V group aged 60+, and therefore, lived during the Soviet Union and have certain legal and mental stereotypes about responsibility for their lives, actions and deeds.

and unreasonable considerations of the young, healthy population of Ukraine on the consequences of selling biological material/organs, especially in the legal field and in terms of their health.

To question №8: “Do you consider extortion and blackmail as ways to get into a situation of human trafficking?” mostly all respondents of groups I-III and V answered negatively – 2-7%; slightly different indicators in group IV – 1114%. Such circumstances prove that Ukrainians perceive extortion and blackmail as normal at the time. Respondents explained their attitude to these phenomena by the high level of corruption in Ukraine, sometimes commenting on the examples of other countries.

To question №9: “Is it possible to get into a situation of human trafficking through the Internet and social networks?” almost similar are the positive responses of respondents of group V – 21-23%. The indicators in group IV are approximate – 31% and 39%. The answers of men and women in group I – 27% and 43%, group II – 54% and 61%, group III – 42% and 56%, respectively. However, in all groups, women's responses indicate that they see the risks of being trafficked more than men through the Internet and social networks.

To question №6: “Would you agree to employment / earnings through illegal intermediaries?” mostly all respondents of groups I-V answered positively – 95-100%, slightly different indicators in women of group III – 82%. High rates of positive responses in groups IV and V participants comment on the difficulty of finding a job in Ukraine after the age of 50 and low pensions. In general, respondents explain the positive answers by lack of money and the need to support the family.

To question №10: “Would you agree to participate in the reproductive program?” the lowest rates of positive responses in men of group I – 4%, in group IV – 12% and 7%, respectively, in group V – 0% and 2%, respectively. The latter is explained by the biological age and socio-mental characteristics of the respondents. Group I women – 28%, Group II men – 17%, Group III men and women – 34% and 38% respectively gave positive answers, explaining it by the opportunity to earn. The same answers were given by women of group II – 49%, whose rate is the highest. However, none of the participants linked their participation in the reproductive program to the possibility of being involved in illegal schemes, trafficking or health risks.

To question №7: “Would you agree to sell your biological material/organ to make money?” the lowest rates of positive responses in respondents of group V – 2-5% and men of group IV – 9%; this is due to the biological age of the study participants. Somewhat different indicators were found in women of III and IV groups – 13%. The rates of positive responses in the surveyed groups I – 32% and 27%, II – 41% and 39% and men III – 48% are quite high and indicate extreme risks

The generalized results of the first block – 1-3 questions showed that the respondents generally know about the problem of human trafficking, consider it relevant for Ukraine and know about the traditional ways of getting into the situation of human trafficking mainly through media coverage (news, talk shows, PSAs). The results of questions 4-5 indicate a lack of preventive work among the population by the state: respondents mostly show superficial knowledge

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34 of general criminal liability, but do not have practical knowledge about it and their own responsibility.

The answers to questions 6-10 of the second block are worrying and indicate a practical lack of knowledge and understanding of their own attitude to new challenges in the fight against human trafficking. By positive answers to 6-7, 10 questions respondents explain the difficult economic situation in Ukraine, unemployment, low wages, high utility tariffs, the need to pay for housing repairs, children's education and others.

The answers to questions 8-9 indicate the lack of a formed vision of the respondents on the ways to get into the situation of human trafficking at present. It should be noted that detailed answers to block II questions could be given by only 12% of respondents in all groups.

In general, the survey allowed us to implement 2 objectives of our study and based on the data of the polygon research to outline new challenges in combating trafficking in human beings in Ukraine, namely: use for selfish purposes: forced donation, trade in biological/genetic material, reproductive programs/surrogacy. We should consider them in more detail.

Forced donation. Article 144 of the Criminal Code of Ukraine defines forced donation only as the taking of blood from a person / minor for the purpose of using it as a donor. In the context of human trafficking, followed by forcible blood donation, this is covered by Part 3 of Article 149 of the Criminal Code of Ukraine “Violation of the procedure established by law for transplantation of human anatomical materials”.

It is important to note that violence can be physical/mental or threatening to use it. Over time, the “black market” of human organs is developing quite successfully thanks to modern gadgets, the Internet and social networks, which make it possible to track potential jokes in real time. Note that Part 5 of Article 143 of the Criminal Code of Ukraine defines the essence and content of the activities of transnational organizations that are systematically engaged in the illegal removal of the organs/tissues from people and the international illegal trade in organs/tissues of living or dead people.

Trade in biological/genetic material. The legal field of the concept of “trade in genetic/biological material” in Ukrainian legislation is virtually absent. The everincreasing number of private medical centers, especially those related to reproductive technologies, is contributing to the increase of

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illicit acts, in the context of trade in genetic/biological material by sex. It should be noted that such centers often do not have the appropriate license documents, and specialists do not have the appropriate level of professional training. Such circumstances are complicated by the fact that the state has virtually no control over their activities, as well as over the collection and preservation of genetic/biological material. At present, in Ukraine, the regulation of legal relations between the recipient and the donor of biological material also requires clear legislation.

In the absence of a legal framework, there is virtually no official data on the consequences of violations of trade in genetic / biological material. In Ukraine, there are ongoing discussions on the creation of a national database (bank) of genetic information to establish the genetic profile of a biological object, however, in the absence of clear legislation and state control, there may be criminal schemes. It should be emphasized that trade in biological/genetic material is actively implemented in the field of reproductive programs, especially – surrogacy.

According to the results of polygon research, the young population of Ukraine in order to improve their financial situation may find themselves in a situation of human trafficking in the context of the sale of genetic/biological material/organs.

Reproductive programs/surrogacy. From a medical perspective, reproductive programs/surrogacy are linked to assisted reproductive technologies and allow people who cannot give birth naturally to become genetic parents.

If reproductive programs are generally supported by world practice, surrogacy is not clear. Some countries support this type of assisted reproductive technology, others – prohibit or have no legal regulation. In Ukraine, gestational surrogacy is allowed at the legislative level: certain provisions are mentioned by the Civil Code of Ukraine and the Family Code of Ukraine. However, traditional surrogacy is prohibited. Although, the lack of a clear legal framework for the comprehensive legal regulation of relations and control by the state in the use of assisted reproductive, especially surrogacy, leads to situations of uncertainty and, as a consequence, legal conflicts and the field for criminal activity.

At present, in Ukraine, the information on the provision of services or the participation of women/men in reproductive programs/surrogacy for a fee is actively disseminated through the

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media, print advertising, the Internet and social networks. Emphasis is placed on obtaining significant profits if the customers of such services are foreign nationals of countries where it is difficult or impossible to have a child surrogate. It is noted that participation in reproductive programs/surrogacy for a fee means the conclusion of agreements involving commodity-money relations, including foreign trade. According to the current legislation of Ukraine, concluding such agreements is illegal in all cases, and in cases of surrogacy – is considered an illegal act of buying and selling a child and is recognized as child trafficking, a crime against the child.

Infertility is considered a key marker of reproductive health. However, at the moment, those who are financially secure/have achieved some career success or who have actually lost the active phase of reproductive age prefer to use the services of surrogate mothers and, in fact, buy a child. The situation is complicated when the customers of surrogacy services are foreign nationals (often members of same-sex marriages), in whose countries assisted reproductive technologies are prohibited or undefined in the legal field. In such circumstances, children may be deprived of the right of having official parents and, as a result, will not have them. There are also legal conflicts in case of force majeure, as for example, the situation with quarantine restrictions Covid-19 found that in the spring of 2020 in Ukraine in a private clinic remained more than 60 children who were ordered to Ukrainian women by foreign nationals, for a fee, with assisted reproductive technologies. Note that such agreements are aleatory, i.e. those that are concluded at the risk of proper implementation, because there are many factors in reproductive programs/surrogacy that are sometimes impossible to influence.

In general, according to experts, the market for illegal services in the field of reproductive programs/surrogacy in Ukraine has millions of shady deals and is a real platform for determining the situation of trafficking in human beings/children, and thus, it is a new challenge that requires immediate legal regulation.

Conclusions The study allows us to state that human trafficking is recognized by the world community as a global problem. Ukraine, recognizing human rights and the rule of law as a priority, is also working to counter this negative

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phenomenon to ensure that those who have committed crimes are inevitably punished. The subjective aspect of crimes related to human trafficking is the presence of only direct intent, combined with the purpose of exploiting a person.

At present, in Ukraine, in addition to the traditional ones, there are new challenges in the problem of combating trafficking in human beings, which confirmed the results of the polygon study: forced donation, trafficking in biological/genetic material, reproductive programs/surrogacy. The Internet and social networks, which are an environment of cybercrime, are actively contributing to the spread of new challenges in combating human trafficking. The solution of the outlined problem is possible under the condition of legal regulation and improvement of the domestic legal base and international cooperation in the field of counteraction to transnational human trafficking.

The results of the polygon study also indicate the need for systematic and full information of the population of Ukraine on the factors, consequences, ways of getting, new challenges in combating human trafficking and legal responsibility for such criminal activity. The results obtained may be of international interest and practical value to anti-trafficking scientists, experts and professionals in various fields. We see prospects for further research in the search for and justification of effective forms, methods and means of combating trafficking in human beings in Ukraine and the development of methodological recommendations for their international implementation.

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Bryhinets, O., Нalus, O., Ryzhuk, I. / Volume 10 - Issue 44: 38-47 / August, 2021

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DOI: https://doi.org/10.34069/AI/2021.44.08.4 How to Cite: Bryhinets, O., Нalus, O., & Ryzhuk, I. (2021). Prospects of legal regulation of contractual relations in the sphere of lobbying management as a counteraction to corruption at the municipal level. Amazonia Investiga, 10(44), 38-47. https://doi.org/10.34069/AI/2021.44.08.4

Prospects of legal regulation of contractual relations in the sphere of lobbying management as a counteraction to corruption at the municipal level ПЕРСПЕКТИВИ ПРАВОВОГО РЕГУЛЮВАННЯ ДОГОВІРНИХ ВІДНОСИН У СФЕРІ УПРАВЛІННЯ ЛОБІЮВАННЯМ ЯК ПРОТИДІЯ КОРУПЦІЙНИМ ЯВИЩАМ НА МУНІЦИПАЛЬНОМУ РІВНІ Received: July 5, 2021

Accepted: August 18, 2021

Written by: Oleksandr Bryhinets16 https://orcid.org/0000-0003-4058-7566 Olena Нalus17 https://orcid.org/0000-0002-5474-3323 Iryna Ryzhuk18 https://orcid.org/0000-0002-5916-3774 Abstract

Анотація

The objective of the article is a comprehensive analysis of the problem of interpretation of contractual relations and their management into the legal field of the national legislation to achieve the significant reduction of corruption at the municipal level on the territory of our country. To achieve this objective, a set of philosophical-worldview, general scientific (analysis, synthesis) and special-scientific methods (systemic, structural-functional, comparative-legal) have been used. It is proved that lobbying is a subjective factor that affects the process of municipal legal regulation. Emphasis is placed on the expediency of introducing the contractual form of regulation of relations on lobbying management decisions at the municipal level. The contract on lobbying at the municipal level is defined as a multilateral agreement between the customer, lobbyist and the body of local government, which has a public-law character, establishes contractual rules of law on lobbying to influence the process of adopting normative municipal-legal acts. It is concluded that it is extremely important to organize and regulate lobbying in any country in the world,

Метою статті є комплексний аналіз проблеми інтерпретації договірних відносин та управління ними у правове поле вітчизняного законодавства для досягнення значного зниження корупційних явищ на муніципальному рівні на території нашої держави. Для досягнення цієї мети використовувались комплекс філософськосвітоглядних, загальнонаукових (аналіз, синтез) та спеціально-наукових методів (системний, структурно-функціональний, порівняльно-правовий). Доведено, що лобіювання виступає суб'єктивним чинником, який впливає на процес муніципально-правового регулювання. Наголошено на доцільності впровадження договірної форми регулювання відносин щодо лобіювання прийняття управлінських рішень на муніципальному рівні. Визначено договір про лобіювання на муніципальному рівні як багатосторонній договір між замовником, лобістом та органом місцевого самоврядування, який має публічно-правовий характер, встановлює договірні норми права щодо лобістського впливу на процес

16

Doctor of Law, Associate Professor, Professor of Constitutional, Administrative and Financial Law Department, Leonid Yuzkov Khmelnytskyi University of Management and Law, Khmelnytskyi, Ukraine.

17 Ph.D., Associate Professor, Associate Professor of Constitutional, Administrative and Financial Law Department, Leonid Yuzkov Khmelnytskyi University of Management and Law, Khmelnytskyi, Ukraine.

18 Ph.D., Associate Professor of Constitutional, Administrative and Financial Law Department, Leonid Yuzkov Khmelnytskyi University of Management and Law, Khmelnytskyi, Ukraine.

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because if this phenomenon cannot be completely eradicated, it must be regulated from the legal point of view, which, in the end, will significantly reduce the level of corruption in the society.

Key words: corruption, lobbying management, lobbying agreement, administrative agreement, lawmaking, municipal-legal acts.

прийняття нормативних муніципальноправових актів. Зроблено висновки про те, що вкрай важливим є питання організації та впорядкування лобіювання у будь-якій державі світу, адже, якщо дане явище не можна викорінити повністю, то його потрібно впорядкувати з правової точки зору, що, у підсумку, дасть можливість значно знизити рівень корупційних проявів у суспільстві. Ключові слова: корупція, управління лобіюванням, договір про лобіювання, адміністративний договір, правотворча діяльність, муніципально-правові акти.

Introduction At present, our state faces rather difficult challenges, and to solve them it is necessary to implement a number of ambiguous and sometimes unpopular solutions. One such way is to legalize lobbying. During the period of active fight against the COVID-19 pandemic, no one an individual, an organization, the state as a whole - has all the information necessary to solve complex and diverse problems facing the state (Lazur, Karabin, Martyniuk, Bukhanevych & Kanienberh-Sandul, 2020; Lytvyn, Zinchenko, Basarab, Andrusiv & Ryzhuk, 2021). After all, even after making the most effective decision, it is not always possible to properly implement it in practice. That is, it is necessary to stimulate the development of partnership relations both at the national level and at the municipal level. The former principle of minimal state intervention and the slogan “the less centralized management, the better, and the problems will be solved by themselves”, gradually loses relevance and reveals a great need for cooperation between government officials and other influential subjects (Kooiman, 2001; Bryhinets, Svoboda & Shevchuk & Kotukh & Radich, 2020).

An important factor in lobbying at the municipal level is the fact that those who influence local governments have many contacts with the latter, because they are in a fairly small area, such as one city, and their interaction is due to the commonality of those urgent problems that need to be addressed, both to ensure the well-being of the city, decent standard of living for citizens, and so that local authorities themselves can address both tactical and strategic issues for the overall development of the city.

Lobbying at the municipal level serves as a means of ensuring compromise and developing the right priorities in the management decision-

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making process. Municipal lobbying is brighter than state-wide lobbying, able to reflect the true structure of the interests of financial and industrial circles, social groups of population and other influential groups.

The article argues the approach according to which the importance of legal consolidation of lobbying as a counteraction to the spread of corruption at the municipal level at this stage of state development is determined. The objective of the article is a comprehensive analysis of the problem of interpretation of contractual relations and their management into the legal field of the national legislation to achieve the significant reduction of corruption at the municipal level on the territory of our country.

Theoretical Framework or Literature Review Modern Western political science pays considerable attention to the problems of studying the peculiarities of the practical activities of lobbyists, the study of lobbying as a political institution. Among the important scientific developments in this area are the works of K. Hunter, who in his works carried out a thorough analysis of the impact of lobbying on economic processes in the state (Hunter, 2001); H. Brown, who identified the issue of lobbying under the conditions of economic crisis and ensuring the rights and freedoms of citizens in transition period (Brown, 2012).

The issue of lobbying of making government decisions at the municipal level and its correlation with corruption offenses remains insufficiently researched. The important scientific developments of some aspects of the correlation between lobbying and corruption were studied by Matthew Jenkins and Suzanne

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40 Mulcahy. Very interesting are their positions, that while anti-corruption legislation has become more standardised around the world, lobbying legislation is a notable exception to this trend, and that the two main measures to prevent corrupt forms of lobbying are: selfregulation and regulatory regimes (Jenkins & Mulcahy, 2018).

The reasons of the impact of corruption on the economic development of the country were also studied separately (Savchenko L. et al., 2018); legal relations in the field of donation with the participation of civil servants and their relatives (Kolomoets, Stetsenko & Sharaia, 2018); forms of committing corrupt abuses of public finances (Sukhonos, Pavlenko, Krukhmal, Ivanovska & Maletov, 2021), however, it is crucial what the relevant studies virtually avoid the analysis of developments in the regulation of lobbying at the municipal level, which is unacceptable for states in which financial decentralization is carried out.

An important role in the study of the analysis of the mechanisms of existence and functioning of corruption in modern society is played by the works of S. Rose-Ackerman, namely two options of the development of corruption: “bottom-up” and “top-down” (Rose-Ackerman, 2013).

Methodology In the process of scientific research a set of philosophical and worldview, general scientific and special scientific methods was used. The axiological approach was used to clarify the role and importance of proper legal regulation of lobbying and to establish a contractual form of regulation of public relations that arises when lobbying for making government decisions at the municipal level. The method of analysis and synthesis facilitated the analysis of the concept, features, object, parties and conditions of concluding a lobbying agreement. In the article we also used some special scientific research methods, namely systemic, structural-functional, and comparative-legal.

Systematic and structural-functional method was used to establish the role and importance of lobbying in the process of law-making activities of the bodies of public authorities, to distinguish lobbying from corruption offenses; comparative-law method was used to compare legal concepts, phenomena and processes, to determine their general and special features, to clarify the correlation between lobbying and corruption; to study foreign experience in the legal regulation of lobbying, etc.

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Results and Discussion In many countries, lobbying issues are in some way regulated by law; at the same time, this process is still at an early stage of development in our country.

Extremely important, especially at the level of municipalities, is the optimal regulation of the degree of influence of lobbyists on law-making, law enforcement processes, on the activities of government institutions. In part, to solve this problem, such a method as legal planning will be useful, which allows by involving professional scientific community to predict the consequences of the implementation of certain measures to regulate lobbying, to conduct a detailed study of relevant measures and processes both in statics and in dynamics. Also, legal planning is an integral method of implementing legal policy and the implementation of legal life, which will allow to make the right emphasis in the study of legal relations in the sphere of lobbying.

With the implementation of the reform of decentralization of public power in Ukraine, more and more issues of local importance are regulated in municipal legal acts (Halus, 2017).

The municipal reform initiated the process of forming effective local self-government and territorial organization of power in order to create and maintain a full value living environment for citizens, provide high quality and affordable public services, establish institutions of direct democracy, meet the interests of citizens in all spheres of vital activity in the relevant territory, coordination of the interests of the state and territorial communities. The legal regulation of local self-government relations, which also takes place at the municipal level, plays an important role in this process (Halus, 2019). The process of municipal-legal regulation is influenced by both objective and subjective factors. The objective factors do not depend on the will of the subject of municipal law-making and are determined by historical, national-cultural, socio-economic, geographical and other features of making local self-government in the territorial community.

The subjective factors depend on the will of the subject of municipal law-making. These can be such phenomena as political confrontation, lack of political will, lobbying, corruption, and so on.

Various institutions of civil society, enterprises, organizations and others are involved in the decision-making process of local selfgovernment bodies. Since the procedure for initiating issues submitted to local governments is only superficially prescribed in the regulations

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of their activities, lobbying leads to the fact that in their decisions local governments do not rely on the interests of the local community (or common interests of local communities), but other public, often corporate or political interests.

Yu. Hanzhurov rightly singles out 3 types of lobbying activities: the first type is actually lobbying activity (direct lobbying), when purposeful work is carried out with the representatives of government institutions to achieve a certain goal. The second type is indirect lobbying, when events are organized in the form of large-scale actions in the media, petitioning, and other public methods of forming public opinion as a means of putting pressure on the authorities, especially parliament. Finally, the third type is internal lobbying, when certain interests in governmental bodies are protected by those who work in them or have direct access to them (Hanzhurov, 2005). These types of lobbying can also be distinguished in relation to local self-government bodies.

Direct lobbying for making government decisions at the municipal level can also be expressed in the direct exercise of the right of certain subjects in their interests to initiate consideration of certain issues. Thus, the Law of Ukraine “On Local Self-Government in Ukraine” in section 13 of the article 46 stipulates that proposals on issues for consideration by the council may be submitted by the village, settlement, city mayor, standing commissions, deputies, executive committee of the council, head of local state administration, head of district, regional council, general meeting of citizens. Section 8 of this article contains a provision that the session of the council is convened to consider the electronic petition that has received the required number of signatures, within the period established for its consideration.

At the municipal level, these issues are also regulated, in particular, at the level of regulations of local councils and executive committees of local councils. In them, bodies of local governments can determine additional range of subjects of municipal law-making initiative.

In this case, direct lobbying by citizens members of the local community decisionmaking by local governments can be seen as a manifestation of local direct (immediate) democracy, which can take the form of local initiatives, public hearings, general meetings of citizens at the place of their residence, e-

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petitions, appeals of citizens (petitions), peaceful assemblies, etc.

If direct lobbying is carried out by the bodies of public authorities, other bodies of local selfgovernment, their officials, it is necessary to distinguish whether they have this right at the constitutional and legislative levels. After all, in accordance with article 19 of the Constitution of Ukraine, bodies of public authority and bodies of local self-government, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine. Thus, in particular, the Law of Ukraine “On Local Self-Government in Ukraine” establishes the norm that proposals on the issues for consideration by the council can be submitted only by the village, settlement, city mayor, standing commissions, deputies, executive committee of the council, head of local state administration, head of the district, regional council. In other cases, we can talk about the illegal interference of other bodies of public authority, their officials in the activities of local self-governments, which would be a violation of the principle of their legal independence enshrined in the European Charter of Local SelfGovernment.

Actions of a public authority official who abuses power or official position by lobbying a local government for a decision in his / her favour, i.e. intentionally uses power or official position against his / her interests in order to obtain any illegal benefit for themselves or another person services, if it caused significant damage, should be classified as a crime under the article 364 of the Criminal Code of Ukraine - abuse of power or official position.

Indirect lobbying of making government decisions at the municipal level is to carry out activities to promote government decisionmaking by stakeholders indirectly, i.e. through other bodies of public authority, civil society institutions and more. For this purpose, illegitimate (not reflecting the real will of their members) paid peaceful assemblies, information campaigns in the media, social networks, etc. can be held in order to encourage local governments to make certain decisions.

If an official of a public authority proposes or promises (agrees) for improper benefit to themselves or a third party to influence the decision-making person authorized to perform the functions of local self-government, then these actions should be classified as a crime - abuse of

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42 influence under the article 369-2 of the Criminal Code of Ukraine.

Internal lobbying for making government decisions at the municipal level can take place when certain interests in local governments are protected by those who work for them or have direct access to them. So, for example, it can be manifested in illegal influence of the village, settlement, city mayor on deputies of local council, members of executive committee of council, or at illegal influence of the municipal employee of executive body of local council on decision-making by this body, etc.

Actions of such officials of a local selfgovernment body, which lobbies for the adoption of an authoritative decision by the body in its favour, abuses power or official position, i.e. intentionally uses power or official position against the interests of the service, if it caused significant damage, should be classified as a crime under the article 364 of the Criminal Code of Ukraine - abuse of power or official position.

Therefore, in order to prevent illegal actions, including corruption offenses, in promoting local self-government decision-making, lobbying should be legally defined as only direct, legitimate cooperation of local governments with professional lobbyists.

We agree with I.V. Bovsunivska, who claims that lobbying as a complex political process has positive and negative sides. The boundary between them can be drawn only in a legislative way (Bovsunivska, 2019). The Anti-Corruption Strategy for 2014-2017 and the draft AntiCorruption Strategy for 2020-2024 enshrined the legislative regulation of lobbying in Ukraine as one of the expected results.

Lobbying of the process of adoption of legal acts by the bodies public authority in Ukraine is not regulated at the constitutional, legislative and bylaw levels. Four bills related to the issue of lobbying were submitted to the Verkhovna Rada of Ukraine of the last convocation, but three of them were returned to the subjects of the legislative initiative. It is worth agreeing with the drafters of the Law of Ukraine No. 3059-2 “On Legal and Transparent Regulation of Lobbying Activities”, who in the explanatory note to it indicate that the recognition at the legislative level of lobbying, the introduction of the single register of lobbyists will make their activities transparent and regulated. Society will be able to openly demonstrate its market of lobbying services, expose “shadow” lobbyists, give them

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the opportunity to change the form of their activities, attract additional tax revenues (Law of Ukraine No. 3059-2, 2020).

It is extremely important that the process of legal regulation become bilateral. That is, the need to adopt a basic law that would, having an imperative character, establish a kind of “rules of the game” in the field of lobbying becomes fundamental. On the other hand, it is important to take into account the cultural, and, above all, economic characteristics of the community when lobbying its interests. At the municipal level, it is important to identify the following issues: the main problems of the community; what aspects of the problem can be solved through lobbying; methods of registration of persons engaged in lobbying, taking into account the wishes of stakeholders.

That is, the need for the adoption of the basic law, which would, having an imperative nature, establish a kind of “rules of the game” in the sphere of lobbying, becomes fundamental. On the other hand, it is important to take into account the cultural, and, above all, economic characteristics of the community when lobbying its interests. At the municipal level, it is important to identify the following issues: the main problems of the community; what aspects of the problems can be solved through lobbying; methods of registration of persons engaged in lobbying, taking into account the wishes of stakeholders. In order to effectively establish the lobbying process and to bring it to the legal level, it is necessary that persons interested in defending the interests of their client and aiming to establish contact with municipal authorities identified: themselves as the appropriate natural or legal person; entered into a duly registered lobbying agreement; in the contract specified what they pursue, addressing in the special body; what methods of influence they would like to use to achieve them; in favour of which subjects of legal relations the accepted lobbying decisions are affected.

Taking into account the fact that the legal system of the state is in a certain dynamics, there is the need to stabilize (establish) social relations, the emergence of which is due to the realities of today. One such new legal remedy is the agreement between a person who is interested in passing a law and a law firm to provide lobbying services.

In order to normalize such activities, it is advisable to think about the settlement of these relations in a contractual manner (Lytvyn,

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Zinchenko, Basarab, Andrusiv & Ryzhuk, 2021), so between a lobbyist and a client who wants to influence making public decisions can be concluded agreements in accordance with the Civil Code of Ukraine (service contract). Such an agreement will be multilateral, as the parties will be a lobbyist (an entity that will provide lobbying services), a customer (a party wishing to obtain favourable amendments to a normative legal act or a normative legal act, which will enshrine in the desired manner public relations and undertake to pay for the services provided) and bodies of public authority, their officials who in legislative way will settle the issue.

public law nature, establishes contractual rules of lobbying influence on the process of making normative municipal-legal acts. Lobbying for the adoption of municipal-legal acts can also be manifested in lobbying for the conclusion by local self-governments of agreements on cooperation of territorial communities. The future law should also make it mandatory to publish such agreements on the official websites of local self-governments. Such a multilateral lobbying agreement, one of the parties to which is a local self-government body, should also be considered a municipal or municipal-law agreement (Halus, 2018).

The subject of the contract for the provision of lobbying services will be a service for lobbying the private interests of the customer, which will later be reflected in the normative legal act.

Also, the current place in the bill should be given to the procedure of registration of lobbyists and their accreditation, they should not unreasonably eliminate people who want and intend to defend their interests at all levels of government, otherwise there will be no sense in these procedures. Accreditation of lobbyists, which is offered by various specialists, can serve as additional measure of control over the activities of stakeholders. Control will be expressed in the fact that the regulations on accreditation will establish: 1) the procedure for access of lobbyists to public authorities; 2) the procedure for interaction with elected representatives, officials who may act as subjects of lobbying; 3) the methods of obtaining information that may contain data and facts; 4) the ways of interfering in the process of creating and making appropriate government decisions. As a result, the registration and accreditation procedure will be simplified to the maximum, which will guarantee a number of additional rights granted to lobbyists.

The forms of promotion (lobbying) of private interests in the authority can be the following: obtaining information from the bodies of public authority to assess the passage of the bill and the draft of another public decision; preparation of a draft of any normative legal act; risk analysis for the client of certain changes; promotion of the bill (assistance in issuing instructions and directives, initiating public hearings, public discussions, etc.); preparation and promotion of the expert opinion on the bill (initiating the creation of expert councils on topics that will be determined by the agreement); agitation for the client’s position.

In general, civilized and open lobbying is quite acceptable. When adopting laws, the legislator not only can, but must listen to the voices of those whose interests will be enshrined in law.

“Clients” can hire lawyers and experts to represent their interests in communication with the legislator.

Taking into account the following provisions are important aspects: the parties should be informed that a person who publicly or not publicly advocates for changes to the law is a lobbyist and receives payment for the provision of their services from the client; the legislator should adhere to the principle of objectivity in making the draft law in such matters, etc.

In order to avoid corruption manifestations and in order to make the process of the lobbying at the municipal level public and transparent, the lobbying agreement should be understood as a multilateral agreement between the customer, lobbyist and local government, which has a

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However, foreign experience shows that, in general, it is impossible to defeat illegal lobbying. It exists even in countries where the legal limits of such acts have been established for a long time, where the established templates of lobbying agreements have been used for decades.

That is, even in such countries as the United States or Germany, it is sometimes difficult to draw the line between illegal lobbying and corruption. However, there are ways to significantly reduce the impact of the shadow economy in such states. Firstly, it is necessary to determine which of the models of legislative consolidation of lobbying should be chosen by our state. The American system is quite rigid, requiring lobbyists to register and report on their activities. The European system provides only for voluntary registration of lobbying. In any case, most of the changes are to improve the legislation. It is necessary to significantly reduce

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44 the possibility of duplication, first of all, by-laws.

This makes it possible to speed up or slow down legal processes that are not socially useful with the help of the courts. It is necessary to introduce mandatory practice of monitoring the repeal of previously existing regulations, on the bases of adoption of the new ones. It is necessary to deprive government officials of freedom of action in disposing of appropriate resources. In such cases, “room for manoeuvre” is artificially created in the exercise of their powers. It is then that the unspoken rule is realized: “Everything is for friends, the law is for enemies”. As a result, the bureaucracy can nullify practically any solution that is useful for the state. It is necessary to reduce the number of state permits, which by the very fact of their existence create the likelihood of circumventing the illegal procedure. The above mentioned hinders market development, but contributes to corruption and illegal lobbying. Finally, it is necessary to adopt legislation regulating lobbying, as this will facilitate the fight against shadow lobbying, will allow to act legally (Bryhinets, Shapoval, Bakhaieva, Pchelin & Fomenko, 2021). But with the appropriate revision of the legislation, of course, explicitly or implicitly, the relevant groups of influence will participate, so the likelihood of the emergence of new and revised laws for lobbyists is high. That is, this path is quite difficult and confusing.

When comparing lobbying and corruption, it should be understood that: 1) the subjects of lobbying and corruption are representatives of interests, on the one hand, and the public authority - on the other. The difference is that a lobbyist, unlike a person who provides illegal benefit, represents usually someone else’s interest. But it is quite acceptable when a lobbyist can defend in all ways his or her own interest (selfemployed lobbyists work for themselves); 2) the object of these relations is the content of a specific decision of the authorities. But if lobbying is traditionally focused on the lawmaking process, then bribery is mainly aimed at individual law enforcement; 3) regarding the content of the legal relationship, lobbying is a set of rights and responsibilities of a representative of interests and a public authority. There can be no question of the content of corrupt legal relations, given that bribery is prohibited by law, the violation of which entails the onset of legal liability; 4) the lobbyist carries out the activity on a professional basis. Of course, in practice

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there are “professional intermediaries” in corruption, but their professionalism is factual, not legal; 5) both activities are regulated by law, but their legal mediation pursues different goals. In the case of lobbying, the legislator seeks to determine the order of registration and reporting, rights and responsibilities, requirements for the behaviour of lobbyists, liability for violations, and so on. In the case of bribery, the legislator seeks to reduce the number of facts of its commission; 6) The main difference between lobbying and corruption is the methods used to promote interests. Some researchers believe that lobbying is distinguished from corruption by the legitimacy of advocacy. This argument is not convincing, as the person giving the wrongful benefit may also promote a legitimate interest. However, the methods he or she uses are always illegal. In contrast, lobbying is the promotion of legitimate interests in lawful ways.

T. Ninua (2012) rightly argues that lobbying in itself is not a corrupt activity, and can be legitimate and positive force when carried out honestly and transparently. It is worth agreeing with M. Martini (2013), who states that where lobbying is opaque and disproportionate, it can lead to administrative bribery and political corruption.

Lobbying and bribery are forms of promoting private interests in public authorities. The difference between them is in the methods used to achieve the set goals: lobbyists use legal methods, corrupt people use illegal ones.

It should be noted that funds as a tool to influence public authorities (officials) can be used by both lobbyists and bribers. The legality of such actions depends entirely on the position of the legislator, who determines, for example, the value of eligible gifts or the limits of election fees. This determines the fundamental importance of detailed regulation of lobbying activities, especially permitted methods of influencing public authorities.

The construction of legal norms under the illegal influence of lobbying structures creates favourable environment for corruption, increasing its level. In this case, corruption is a direct consequence of lobbying, having a direct connection with it.

We cannot agree with this statement, because the interests of government and business and the

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forms of their interaction today are so multifaceted that without intermediaries it is impossible to operate not only large but also medium-sized companies. Small businesses also need to protect their interests.

The most vivid and large-scale lobbying is manifested in the period of adoption of the budget of the appropriate level. This process develops according to the same scheme from year to year and is a reason to intensify the political struggle between different groups of influence (Bryhinets, 2014).

But due to the fact that lobbying is not currently regulated by law (i.e. there is no possibility of legal influence on the construction of legal norms), lobbyists have to balance on the verge of corruption.

The author of one of the most thorough studies on the relationship between lobbying and corruption, N.M. Kolosova (2014) proposes to introduce into scientific circulation and legislate the concept of “corruption lobbying”, believing that this will give lobbying exclusively positive meaning.

The problem is that the concept of “lobbying” is not only not enshrined in law, but also not scientifically found an unambiguous interpretation (each scientist offers his or her own definition), there are frequent opinions about the nature and purpose of lobbying, its nature and social value. Therefore, the introduction of concepts in which one of the linguistic units of the phrase is “lobbyism” is unjustified; in this case it will create even more confusion in the concepts of “lobbying” and “corruption”.

In this regard, S.V. Vasylieva (2013) rightly notes that “legislative policy in the sphere of lobbying is incorrectly associated with anticorruption reform. Regulation of lobbying and the fight against corruption are different areas that are better not to link.

Indeed, lobbying does not create corruption.

Overcoming corruption is the subject of legislative regulation of political parties, elections, the status of public authorities and the civil service. And if within the framework of this legislation it is not possible to solve the problem of corruption, then within the framework of lobbying regulation it will not be possible to do so.

However, “anti-corruption policy will be incomplete without the legal institutionalization of lobbying” (Vasylieva, 2013). But the

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fragmentary nature of various manifestations, forms and methods of lobbying can lead to a significant increase in the number of normative legal acts, which are already many, unreasonable complication of legal relations, which by their nature are lobbying, and to the final destruction of the line between lobbying and corruption that, ultimately, will inevitably lead to the fact that the same act can be qualified both as the promotion of private interest and as the commission of a corruption offense.

Conclusions The existing legal policy in our country is characterized by the dynamism of its existence, the search for new, more constructive methods of regulation. It is an extremely difficult and important task to properly predict the consequences of the adoption of the bill on lobbying regulation. Particular attention should be paid to the introduction of the new mechanism that will ensure the development of very specific legal relations. We should not forget that the legislator always reserves the right to properly intervene in the regulatory process, so the shortcomings, drawbacks of the bill will be immediately apparent, finding its reflection in practice.

There is no doubt that the legalization of lobbying will solve many problems, will become an important step towards the formation and development of civil society. Therefore, it is correct to conclude that the development of lobbying should be enshrined in legal norms, in improving the mechanisms of lobbying activity and its functions.

Legislation should define lobbying at the municipal level as direct, legitimate cooperation of the bodies of local government with professional lobbyists.

The agreement on lobbying at the municipal level is advisable to understand as the multilateral agreement between the customer, lobbyist and local self-government, which has a public-law nature, establishes contractual rules of law on lobbying to influence the process of adoption of municipal-legal acts.

The above mentioned actions will allow controlling lobbyists, who without discrediting, as rightly noted, the legislative process, the activities of government institutions, and, at the same time, reflecting information on the steps and intentions of lobbyists, will both identify

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46 community attitudes and provide solutions to the most urgent problems facing the community.

As a result, it is the modelling of the development and functioning of the legal mechanism for lobbying for the result that the state and its territorial entity need for the effective implementation of legal policy - should become a priority to improve the overall welfare of Ukrainian citizens. However, the implementation of lobbying legislation may reduce corruption, but the existence of informal contacts, especially at the municipal level, which cannot be controlled, will remain significant. The most important thing is the self-cleansing of the national elite, which will influence the local elites. It is then, due to the institutionalization of legal forms of lobbying, the level of corruption will decrease and reach the level typical of developed countries. However, such a scenario is possible only with favourable economic and political dynamics. Otherwise, we will face a catastrophic rise in corruption, grey and black lobbying schemes.

In Ukraine, as in many countries during their formation, lobbying and corruption are part of the processes taking place in the country.

Sometimes they are even system-forming phenomena and slow down the sharp decline of the economy.

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Asieieva, Y., Aymedov, C., Horishchak, S., Mierlich, S., Riabukhin, K. / Volume 10 - Issue 44: 48-60 / August, 2021

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DOI: https://doi.org/10.34069/AI/2021.44.08.5 How to Cite: Asieieva, Y., Aymedov, C., Horishchak, S., Mierlich, S., & Riabukhin, K. (2021). Cyber-addictions of the Ukrainian youth. Amazonia Investiga, 10(44), 48-60. https://doi.org/10.34069/AI/2021.44.08.5

Cyber-addictions of the Ukrainian youth Кіберадикції української молоді Received: July 10, 2021

Accepted: August 25, 2021

Written by: Asieieva Yuliia19 https://orcid.org/0000-0003-3086-3993 Aymedov Constantine20 https://orcid.org/0000-0003-2577-0151 Horishchak Serhii21 https://orcid.org/0000-0002-5585-6370 Mierlich Sergii22 https://orcid.org/0000-0003-1360-3882 Riabukhin Konstiantyn23 https://orcid.org/0000-0003-2204-7283 Abstract

Анотація

The work is devoted to the study of the problem of dependence on cyberspace of young people.

Experts increasingly believe that cyber-addiction is a pathological urge or disease that belongs to the category of non-chemical dependencies and has its own nosology, etiology, pathogenesis and requires prevention, treatment and psychocorrection. Thanks to the analysis of scientific achievements, their actual types were determined, a comprehensive model of classification was built taking into account socially accepted, pathological and cyberaddiction; the stages of cyber-addiction formation are separated.

Thanks to the developed and tested method «Test-questionnaire for detecting cyberaddiction», it was found that the most typical addictions for young people are: computer addiction, Internet addiction, game addiction and gadget addiction; girls are more typical: cyber communicative addiction and selfitis. When considering age characteristics, it was found that the highest rates of 3rd degree of addiction are among people aged 19 to 21, a more even distribution of 2nd and 3rd degrees of addiction

Робота присвячена дослідженню проблеми залежності від кіберпростору молоді. Погляди фахівців все більше зводяться до того, що кіберадикція – це патологічний потяг чи захворювання, яке належить до категорії нехімічних залежностей і має свою власну нозологію, етіологію, патогенез і потребує профілактики, лікування та психокорекції. Завдяки проведеному аналізу наукових надбань, були визначені їх актуальні види, побудовано всебічну модель класифікації з урахуванням соціально прийнятих, патологічних та кіберадикцій; відокремлено стадії формування кіберадикцій. Завдяки розробленій та апробованій методики «Тест-опитувальник на виявлення кіберадикції» було, встановлено, що найбільш характерними адикціями для юнаків є: комп’ютерна залежність, Інтернетадикція, ігрова адикція та ґаджет-адикція; дівчатам більш притаманні: кіберкомунікативна адикція та селфітіс. При розгляді вікових особливостей було виявлено, що найвищі показники за 3-м ступенем прояву адикцій знаходяться серед

19

PhD, Head of the Department of General Scientific, Social and Behavioral Disciplines of the Odessa Institute of the Interregional Academy of Personnel Management, Ukraine.

20 MD, Doctor of Medical Sciences, Professor, Odessa National Medical University, Ukraine.

21 PhD, Candidate of Medical Sciences, Director, Municipal Non-Commercial Enterprise "Children's City Polyclinic № 6" of Odessa City Council: Odessa, Ukraine.

22 PhD, Candidate of Medical Sciences, Surgeon-Oncologist of the highest category, Department of General Surgery, Odessa National Medical University Ukraine.

23 PhD, Candidate of Medical Sciences, Psychiatrist, narcologist, medical psychologist, doctor of the highest category, Assistant of the Department of Psychiatry and Narcology, Odessa National Medical University, Ukraine.

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among people aged 14 to 15 years. Due to the factor analysis of the obtained results, it was established that an addict can have not one dependence, but several, although each of them may have a different degree of manifestation.

Key words: cyberspace, interactive technologies, non-chemical dependence, cyberaddiction, Internet, social networks.

осіб від 19 до 21 року, більш рівномірний розподіл 2-го та 3-го ступенів адикцій серед осіб у віковій категорії від 14 до 15 років. Завдяки проведеному факторному аналізу отриманих результатів встановлено, що адикт може мати не одну залежність, а декілька, хоча кожна із них може мати різний ступінь прояву. Ключові слова: кіберпростір, інтерактивні технології, нехімічна залежність, кіберадикції, Інтернет, соціальні мережи.

Introduction Formulation of the problem. The prevalence of interactive technologies and widespread computerization is due to socio-anthropogenic factors, easy availability and ease of use of electronic devices that allow easy information retrieval, expand the possibilities of interconnection and interpersonal communication, which in today's urbanization saves time and performing professional or educational activities, allows you to receive, store and process huge amounts of information.

Computer and interactive technologies are penetrating education, science, economics, politics, culture, and more. The Internet reflects the functioning of various sectors of society and provides information services for communication, leisure and other activities, including professional. The Internet is necessary for everyone - regardless of profession, social status, age and gender differences. The Internet as a means of personal development significantly contributes to its self-realization and expands social opportunities. Network users not only consume information, but also constantly fill it with various information resources (Markova, 2013; Utz, 2015).

Increasingly, we are finding research on the prevalence of Internet addiction, cyberadication and gadget addiction among children, adolescents and young people. However, it should be noted that systematic studies of the prevalence of Internet addiction and its impact on the personality of the adolescent has not been conducted (Bolbot, 2005; Pronin, 2016; Rybaltovich et al, 2012; Blachnio, Przepiorka, Benvenuti, Mazzoni, & Gwendolyn, 2019; Hawi, 2018).

Escape from real interpersonal communication into cyberspace leads to loss of communication skills, empathy, the development of alexithymia and the emergence of asociality, the development of maladaptation and reduced stress. In the early

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stages of immersion in cyberspace, all this goes unnoticed, conversations are replaced by messengers, real meetings with video chats or video calls, significant social groups are inferior to teams when playing online networks.

Gradually, the individual loses connection and adaptability in real social life, there is anxiety when it is necessary to meet in real life, public speeches or a large number of people cause feelings of danger, fear. Active social life is imperceptibly replaced by cyberspace and cybercommunication, and social approval, respect, and esteem are replaced by "likes" (Goncharov, 2011; Grybyuk, Demyanenko, 2014; Tazetdinova, 2018; Oravec, 2012; Tan, 2016).

All these and other debatable issues regarding the development and formation of the gaming industry and its impact on the fictitious personality confirm the relevance of research on the psychological characteristics of the involvement of adolescents and young people in the virtual environment.

The purpose: to investigate the dominant cyberaddiction of Ukrainian youth. Since different types of c cyber-addiction may prevail among young people, they can be classified by direction and content, to explore their combination.

The study of the specifics and severity of types of cyber-addiction among young people will give us the opportunity not only to describe the psychological characteristics, but also to approach the development of adequate psychological technologies for their prevention, prevention and psychocorrection.

Objectives 1.

To clarify the meaning of the concept of cyber-addiction.

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50 2.

To provide a classification of species and to reveal the specifics of the manifestations of cyber-addiction, taking into account their stages.

3.

To investigate and describe the dominant cyber-addiction among young people according to the degree of their manifestation.

Statistical data processing was performed using SPSS 26.0 for Windows XP, which allowed to build profiles and provide quantitative and qualitative analysis of the obtained data.

Research methods

The social formation of the individual takes place in two planes - material and cyber-reality, each of which allows the individual to be realized in its various manifestations, but cyberspace is more attractive because it allows you to try on many more images of self, as well as refuse to communicate and connections with unwanted persons, etc. Therefore, already now the scale of cyber-addiction, Internet addiction, gadget addiction and other non-chemical addictions associated with interactive technologies are so significant that they are allocated to a number of new ones that significantly affect the formation of youth and society as a whole (Aymedov, Asieieva, Tolmachev, & Tabachnik, 2020; Borisova, & Soltan, 2019; Boram, & Yoon, 2020; Stefanie, Streb, & Irina, 2019; Yaxuan, & Lin, 2018; Blachnio, Przepiorka, Benvenuti, Mazzoni, & Gwendolyn, 2019).

The following methods were used during the research: theoretical and interdisciplinary analysis, complex, psychodiagnostic and methods of mathematical and statistical data processing.

The theoretical method included theoretical and methodological analysis, generalization of various scientific materials on the topic of the study, as well as a systematization of available modern literature on the prevalence and classification of cyber-addiction among Ukrainian youth.

Interdisciplinary analysis of social, psychological, medical, pedagogical literature is aimed at reflecting the current state of the problem of cyber-addiction and creating your own conceptual model.

The comprehensive method included: a survey and a structured interview, which provided the opportunity to obtain the necessary data, namely age, gender, level of education, family status (complete, incomplete, the presence of guardians, etc.). Interviews with respondents and their parents clarified some data on the life and intensity of adolescent passion, complemented the picture of the anamnesis.

Psychodiagnostic research method. It is chosen to determine the main macro- and microsocial individual-biological, individual-psychological and personal-psychological factors of cyberaddiction formation as markers of further psycho-correctional work. The experimental study was aimed at determining the predisposition to addictive behavior and the degree of manifestation of some types of cyberaddiction, conducted using: Test-questionnaire to detect cyber-addiction (TQC), which proved its validity, standardization and reliability (published in the author's work). The TQC includes 102 questions, the answers are evaluated on a five-point scale, which allows to determine the degree of manifestation of certain types of cyber-addiction: computer addiction (PC), Internet addiction, game addiction, gadget addiction, cyber-communication addiction and selfitis.

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Analysis of recent research and publications

The first studies on the impact of humanitarian information technology were published in the field of social psychology in the 70's: Short J., Williams E., & Christie B. (1976), Hiltz S.R., & Turoff M. (1978) (Short, Williams & Christie, 1976; Hiltz, Turoff, 1978). The scientists' work was devoted to communication via a local or global network, while at that time there was only an interdependent computer network. In the next decade, researchers are attracted to research aimed at studying the communicative aspect and analyzing the impact of the network on organizational structures. Thus, in the works of M. Shotton (1991) Marlatt G.A., Baer J.S., Donovan D.M., & Kivlahan D.R. (1988) the concept of computer dependence appears, the first types are separated and the psychological characteristics of addicts are described. In the 90's, the vector of scientists' attention is directed to the Internet itself, and in addition to interpersonal communication, gaming and cognitive activities began to be explored using the World Wide Web. In this decade, the first diagnostic tools for the detection of Internet addiction (Young, K., 1996) (Young, 1996) and described the individual psychological characteristics of people with computer addiction (Goldberg, 1996). This disorder is also considered in the medical field, the symptoms are studied and there is an active search for treatment and rehabilitation programs.

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Since the early 2000s, the views of the psychological, social and medical scientific community (Voiskunsky, Ye., Smyslova, O.V., Bolbot, T., Melnik, E., Belinskaya, E.P., Voloshin, P.V, Maruta, N.O., Griffiths, M.D. etc.) are directed to a more detailed study of computer and the Internet dependencies, are already beginning to separate: various definitions, socio-psychological factors of formation, symptoms and stages, clinical aspects, classifications and typologies, highlighted issues of children's interaction with the computer, the behavior of users in the network and more.

At present, the problem of dependence on cyberspace is seen as multidisciplinary in three main areas: psychological, social and medical.

From the standpoint of social direction, the fascination with cyberspace is seen as a kind of deviation. The views of physicians and psychologists have recently been reduced to the position that cyber-addiction is a pathological urge or disease that belongs to the category of non-chemical dependencies and has its own nosology, etiology, pathogenesis and needs prevention, treatment and psychocorrection.

It should also be noted that despite the multidisciplinary problem of cyber-addiction, there is still no clear classification of this type of non-chemical dependence, most psychodiagnostic tools for their detection are adapted, not created taking into account the mentality and sociocultural characteristics of addicts. Symptoms and anamnesis are insufficiently described, the criteria for distinguishing between Internet addictions, computer addictions, gambling addiction are not clearly defined, and some new types of cyberaddiction are hardly studied and not taken into account at all.

Results Clarification of the concept of "cyberaddiction".

Computer addiction, Internet addiction and cyber-addiction are interpreted by most scientists as a mental disorder that affects the normal process of a person's life and has its own variants of manifestation and process of flow Yu. D. Babaeva, O.E. Voiskunsky. According to researchers, the most relevant for adolescence are the following types of dependence on cyberspace (Zhaojun, Pontesbc, & Guangcan, 2020). First, it is a passion for virtual dating, even the redundancy of acquaintances and friends on the social network, because it is adolescence is

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characterized by the establishment of interpersonal relationships with peers. Second, the obsession with the network, namely gambling, is most prevalent in online gambling, regular shopping, or bidding. Third, obsessive web surfing, that is, the urge for information overload - endless travel on the network, searching for information in databases and search sites. And fourth, it is a computer addiction - an obsessive game in computer games: shooters (Doom, Quake, Unreal, etc.), strategy games such as Star Craft, quests, computer role-playing games: Planescape: Torment; The Elder Scrolls, Wizardry series, Ultima, Fallout, Gothic series, Baldur's Gate, Might & Magic, etc. (Rzhevsky, 2018; Bartkiv, & Makhnovets, 2018; Aymedov, Asieieva, Tolmachev, & Tabachnik, 2020; Chebykin, 2016; Blachnio, Przepiorka, Benvenuti, Mazzoni, & Gwendolyn, 2019; Hiltz, & Turoff, 1978; Babaeva, Voiskunsky, & Smyslova, 2005; Zhaojun, Pontesbc, & Guangcan, 2020; Griffiths, Kuss, & Billieux, 2016).

In our opinion, it is possible to separate three directions of negative influence of daily use of the computer (PC). First, the computer has become a means of administrative and coercive nature, today it is impossible to obtain secondary and higher education, as well as employment without a minimum knowledge of PC and its minimum Windows package. Secondly, the forced imposition of constant self-development within computer technology, that is, a person aims to identify himself through the prism of computer literacy and the ability to learn new applied information to modify their own PC, constant monitoring of innovation in the information technology market. Third, the computer and the Internet are in constant communication and become a means of psychologically replacing material reality with cyberspace.

Replacing real interpersonal communication with cybercommunication leads to loss of communication skills, empathy, development of alexithymia and the appearance of asociality, development of maladaptation and reduction of stress resistance. In the first stages of immersion in cyberspace, all this goes unnoticed, conversations are replaced by messages in messengers, real meetings - video chats or video calls, significant social groups are inferior to teams when playing online in networks.

Gradually, the individual loses connection and adaptability in real social life, there is anxiety when it is necessary to meet in real life, public speeches or a large number of people begin to

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52 cause feelings of danger, fear. Active social life is imperceptibly replaced by cyberspace and cybercommunication, and social approval, respect, reverence are replaced by «likes» (Utz, 2015; Aymedov, Asieieva, Tolmachev, & Tabachnik, 2020; Chebykin, 2016; Boram, & Yoon, 2020; Yaxuan, & Lin, 2018; Babaeva, Voiskunsky, & Smyslova, 2014).

In the modern scientific literature, we increasingly encounter the assertion that addictive behavior occurs as a result of complex interactions of hereditary, biochemical, social and individual psychological factors. Among these are: external conditions of the physical environment; internal hereditary-biological, psychophysiological and individual-typological prerequisites; external social conditions; intrapersonal causes and mechanisms of dependent behavior.

Summarizing the manifestations characteristic of Internet addiction and computer addiction, we can distinguish the main features of cyberaddiction: the impossibility of subjective control over the use of cyberspace and maladaptation, which reflects the negative impact of its use on interpersonal relationships, health, work, learning, emotional, psychological state, financial status, etc., are characteristic, however, for any dependent behavior. Сyber-addiction, as a painful disorder, corresponds to the known six components that are universal for all variants of addictions: feature, «superiority»; mood swings; increasing tolerance; withdrawal symptoms; conflict with others and yourself; relapse.

Based on the considered scientific and theoretical achievements, in our opinion, all the separate determinants can be divided into three criteria predisposing, contributing and supporting.

Biological predisposing determinants include: adolescence (14-21 years); encumbrance of heredity; organic brain damage; degree of initial tolerance; temperament features; genetic predisposition to addictions. Among the psychological predisposing determinants can be distinguished: disharmonious functioning of the emotional sphere; impaired ability to reflect; impaired self-esteem; psychological isolation; psychological immaturity; the presence of at least one frustrated need. To the social predisposing determinants - the formation of a destructive social image of «I»; breaking family ties; social disorientation in microsocial conditions.

Contributing biological factors to the formation of cyber-addiction can be considered: chronic

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diseases; predisposition to depression; suicidal tendencies; neuroticism. The group of contributing psychological determinants include: violations in the acceptance of their physical "I"; feelings of loneliness; tendency to negativism; tendency to avoid problems and responsibilities; type of accentuation; interest; the presence of psychological trauma in different periods of life.

Among the social contributing determinants are: disorders in intimate-personal relationships; authority of the reference antisocial group.

Supporting biological determinants are individual differences in the work of neurotransmitter and neuromodulatory systems.

Among the psychological supporting determinants it is possible to note: lack of idea about the future; emotional instability, tension and sharp mood swings; tendency to intellectualization; attractiveness of emerging sensations; development of hedonic attitudes, the desire for self-affirmation. The social determinants that support cyber-addiction include: difficulties in building interpersonal communication; fashion; accessibility.

Classification of types and specificity of manifestations of cyber-addiction, taking into account their stages With the progressive development of information and communication technologies (ICT) and the diversification of electronic devices, the diversity of subtypes of cyber-addiction is growing. The most relevant today are: addictive Internet surfing (web-surfing), cybersex (cybersexual addiction), fabbing, virtual dating, passion for online gambling (cyber addiction, online addiction), the obsessive need to be online Internet (Internet addiction, Internet addiction), cyber-communicative addiction (cybercommunicative addiction), gadget addictions, audio / video addiction, television addiction, online gambling, passionate online reading (pathological reading online), cyber- oniomania or selfies (Asieieva, 2020).

Consider some of them in more detail. For example, the passion for online gambling (cyber addiction, online addiction) - a pathological tendency to gamble in virtual casinos.

Online gambling is a hyper-fascination with individual and / or online online games.

Pathological dependence on virtual dating involves hyper-fascination with social networks, dating sites in order to establish new contacts in cyberspace and try on new "self-images" and create new own pages.

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Cybersex (cybersexual addiction) is an irresistible urge to discuss sexual topics in erotic chats, visit pornographic sites and engage in cybersex.

Passionate online reading or pathological online reading is a hyper-fascination with reading both online and downloaded books to a gadget or other electronic device. Modern online books provide the opportunity for the reader to become a co-author, changing the plot of the book through the answers or actions of the characters, provide rewards for opening new chapters, set a time frame for bonuses, that is, reading online books becomes an exciting game with a variety of plots. draws the individual into cyberspace.

Audio / video addiction - listening to music on an audio player, or watching video clips on a gadget or other electronic device.

Cyber-oniomania is the desire to make new purchases in online stores without the need to purchase them and take into account their own financial capabilities, obsessive participation in online auctions.

Cyber-communicative addiction (cybercommunicative addiction) is a special type of Internet addiction, characterized by dependence on communication in the most common communication environment of the Internet social networks. This is a relatively new area of psychological research, however, given the pace of development of social networks, it requires detailed study.

Gadget addiction is a passionate desire to own a specific mobile device or electronic device (laptop, smartphone, iPhone, iPad, etc.) that has access to the Internet and an uncontrolled desire to constantly use this gadget.

Addictive Internet-surfing (web-surfing, websurfing) (from the English "surfing" - surfing) - a pathological passion for constant, superficial wandering on websites. In general, web-surfing is one of the types of Internet use, which is a repeated transition of links from one web page of Internet sites to another. Web surfing does not require any special knowledge or any professional skills. It's easy enough to go to sites, click on links, perform tasks, attract new users, participate in affiliate programs and more.

A relatively new type of cyber-adiation is fabbing (from the English phubbing, from phone - phone + snubbing - contempt) - a bad habit of

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often being distracted by a mobile phone while talking to someone.

It is also important to note this kind of addiction as "selfie", selfie (English selfie) - a kind of selfportrait, which is to "engrave" yourself on camera. Most often from the distance of the outstretched hand, so the image in the photo has a characteristic angle - at an angle, slightly above or below the head. The habit of taking pictures of yourself, then "post" pictures on "Facebook", "Instagram" or other social networks. Excessive passion for self-photography and posting photos on social networks - is interpreted as selfieism (Selfieism). That is, there is a new trend, a new generation that understands the world through the prism of self-admiration on social networks.

Selfitis has become such a global phenomenon that it needs to be considered as a mental disorder in the International Classification of Diseases ICD-11. In the case of such an official classification of "computer addiction", the diagnosis can be made dependent on "selfies", online games, SMS and social networks (Rumpf, Achab, & Billieux, 2018).

After analyzing the existing research on this issue, according to the authors, it is possible to provide the following definitions of the basic concepts of some types of cyber-adiation.

Cyber-adiation should be understood as a type of non-chemical dependence, which is expressed in a mental disorder caused by an obsessive desire to be constantly in virtual reality, live and be realized in cyberspace through the use of gadgets or electronic devices, despite the destruction of material and social reality. and for the process of life in general (Asieieva, 2020).

Computer addiction (PC) (computer addiction or computer addiction - synonymous concepts) should be understood as a type of non-chemical dependence, which is expressed in the obsessive desire to constantly use a PC, despite the negative impact on physical and mental health ', the destruction of real social relations, and when it is impossible to use it, there are changes in the emotional and volitional sphere of the individual (Asieieva, 2020).

Internet addiction (Internet addiction) is a type of non-chemical addiction, which is interpreted as a mental and behavioral disorder, which is expressed in an obsessive or compulsive desire to be constantly online, causing disruption of normal life, and the inability to stay online leads to changes in emotional state and causes negative

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54 changes in the cognitive, behavioral and affective spheres of personality (Asieieva, 2020).

Gadget addiction is a type of non-chemical dependence, which is expressed in tracking new versions of mobile or gadget devices on the market, in the hyperbolized need to own a certain model (laptop, smartphone, iPhone, iPad or other electronic device) and uncontrolled desire to use this gadget (Asieieva, 2020).

Cyber-communicative addiction (cybercommunicative addiction) is a type of nonchemical addiction, which is expressed in the obsessive desire to build and maintain interpersonal communication in cyberspace through messengers, social networks, forums, chats, group games, etc., while neglecting the real interconnections. which leads to the destruction of the normal process of life of the individual.

Selfitis is a type of non-chemical dependence, which is expressed in the obsessive desire to constantly self-photograph and post photos on their own pages in cyberspace, and the inability to self-photograph, process photos, post them online, lack of "likes" or positive reviews or negative feedback becomes the cause of negative changes in the emotional-volitional, cognitive and behavioral spheres of personality.

After analyzing the available scientific knowledge on the definitions and classification of addictions, it is possible to propose the following distribution of addictions (Fig. 1).

Most scientists distinguish three types of addictions: chemical; intermediate and nonchemical addictions. Chemical and intermediate addictions are not the subject of our study, so let's just list them. Chemical addictions include addictions to alcohol, tobacco, caffeine, opiates, cannabinoids, hallucinogens, various solvents, tranquilizers, barbiturates, and the like.

Intermediate addictions mostly include (F50; F64 F65): anorexia nervosa; atypical anorexia nervosa; bulimia nervosa; atypical bulimia nervosa; overeating associated with other psychological disorders; disorders of sexual identification and disorders of sexual preference, etc.

Among non-chemical addictions it is possible to distinguish: socially acceptable addictions; pathological non-chemical addictions; cyberaddiction. Socially acceptable addictions

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include: workaholism; religious addiction; addiction to a healthy lifestyle; addiction to relationships; pathological reading; collecting, etc. Pathological non-chemical addictions include: gambling; shopaholism; ziping; television dependence, as well as noise dependence, etc.

Depending on the way of deviating from reality, it is possible to separate three dyads of cyberaddictions: 1st dyad - Introverted includes dependence on PC and Internet addiction; 2nd dyad - Mixed, which includes such types of cyber-addiction as Game Addiction and Gadget Addiction; 3rd dyad - Extraverted includes: Cyber-communicative addiction and Selfitis.

From the addiction agent (from the focus of satisfying a pathological need), it is possible to separate Internet addictions: addictive Internet surfing; cyber- oniomania; pathological online reading. Cybernetic addiction and online gambling can be distinguished as subtypes of game-addiction. As subtypes of cybercommunicative addiction it is possible to separate cybersex, fabing, virtual acquaintances.

Separation in the process of formation of cyberaddictions of certain stages is an important step, as it involves the typology of addicts, which is a necessary condition for effective prevention of addictive behavior.

To date, scientists have identified 4 stages of formation of cyber-addiction: 1) the stage of easy enthusiasm, which only starts the mechanisms of dependence; 2) the stage of enthusiasm, which is characterized by the emergence of a new need constantly playing computer games, browsing the Internet, chatting, the world of cyberspace becomes more attractive, the individual neglects communication with relatives, family affairs and recreation, addiction develops; 3) the stage of dependence, at which there are major changes in self-esteem and self-awareness of the addict, which leads to serious changes in the value sphere of the individual; 4) the stage of attachment, which is the longest and is characterized by a shift in psychological content.

The rate of attenuation of the addiction depends on which of the previous stages the addict stopped during its formation. If it goes through all stages of development of cyber-addiction, then it, depending on the rate of extinction, can last a lifetime (Rumpf, Achab, & Billieux, 2018; Borisova, Solta, 2019; Voiskunsky, Smyslova, 2020; Morahan-Martin, 2008).

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Pic. 1. Addiction classification model. (Author: Yu. Asieieva) Also, in psychology, a special type of mental states has been described, which exist only in the actual. This type of psychological state has been called "virtual states" and is associated with the concept of "virtual reality", which has a number of specific properties: generation (produced by external to it activity of another reality); relevance (there is relevance, only "here and now", only as long as the activity generates reality); autonomy (has its time, space and laws of existence, for a person who is in virtual reality there is no past and future); interactivity (can interact with all other realities, including those generated as ontologically independent of them) (Nosov, 2000).

Signs that the addiction has formed and is progressing are hiding the true time spent in cyberspace and hiding the nature of the lessons behind it. The amount of time spent in cyberspace increases to several hours. Outside of cyberspace, there is irritation or despair, while

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using a computer, the Internet, gadgets and other electronic devices, you feel well and euphoric.

Being in cyberspace is detrimental to all the vital functions of the body: neglect of sleep, nutrition, ignoring household chores, and so on.

After analyzing the existing approaches to the stages of cyber-addiction, we propose to separate the following: 1) Addictive-pragmatic, the absence of cyberaddiction, at this stage the person has experience and formed an idea of work and use: PC, Internet, some games, gadgets, and have little experience in cybercommunications and selfies. People do not turn to the network every day, control the time they spend in cyberspace when interacting with various gadgets.

2) Comfortable or no pathological signs of cyber-addiction - the use of gadgets and various types of devices, Internet and PC is

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56 normal, at the level of socially acceptable use of interactive technologies that meet modern needs of society or professional functions.

3) Enthusiasm (or 1st degree of dependence), which does not affect the normal process of life and social interaction of the individual, but there are manifestations of passionate use of cyberspace, gadgets and other electronic devices. At this stage, there are no signs of the formation of a certain type of cyber-addiction. That is, social relationships do not yet suffer, the individual sometimes breaks his promises, sometimes refuses to perform his duties, sometimes the normal biological rhythm is disturbed. The normal process of personality is not yet disturbed.

4) Passion (or 2nd degree of dependence) formed dependence with the emergence of problems that disrupt the normal social life of the individual, suffer and disrupt interpersonal and professional relationships.

The individual chooses cyberspace over real life. At this stage, the individual needs outside help, involvement in psychocorrective measures aimed at preventing further formation of pathological dependence.

5) Disadaptation (or 3rd degree) - pathological dependence, which has manifestations of severe social maladaptation of the individual, changes in psycho-emotional characteristics are already detected and physiological disorders are observed (tunnel

syndrome, decreased vision, headache, scoliosis, etc.). Personality requires the intervention of specialists, involvement in general psycho-corrective measures aimed at reducing dependence on the identified type of cyber-addiction. This stage already indicates psychophysiological changes that require treatment and active psychocorrectional measures.

Thus, it is possible to note that the problem of cyber-addiction, having a complex multifactorial nature, is similar in its development to other types of dependencies. To date, there are various definitions, criteria, stages and factors of dependence.

Research results dominant cyber-addiction among young people according, the degree of their manifestation.

In our study, we decided to investigate how common cyber-addictions are among young people and what are the possible combinations of their combinations. To do this, a survey of Internet users was conducted by posting a virtual questionnaire «Test-questionnaire for the detection of cyber-adiation» (TQC) on various sites and forums, including self-developed electronic resources (www.aseevayulia.com). A total of 6,000 respondents (aged 14-21) were interviewed, including 2,940 men (49%) and 3,060 women (51%) aged 14 to 21 years.

Table 1 Manifestation in the percentage of different stages of cyber-addiction among young people.

Sex

Subscales TQC

Dependence on PC Internet addiction Game addiction Gadget addiction Cybercommunicativ e addiction Selfitis Total for the article Total

B G B G B G B G B G B G B G

Addictivepragmatic

Comfortable

Enthusiasm

Passion

n 38 40 46 47 39 48 41 43 29 38 37 42 230 258 488

n 52 57 48 45 56 59 68 78 84 87 112 124 420 450 870

n % 98 1,63 95 1,58 126 2,10 137 2,28 187 3,12 132 2,20 162 2,70 143 2,38 136 2,27 148 2,47 201 3,35 288 4,80 910 15,17 943 15,72 1853 30,88

n 114 143 114 149 167 143 146 125 157 186 98 134 796 880 1676

% 0,63 0,67 0,77 0,78 0,65 0,80 0,68 0,72 0,48 0,63 0,62 0,70 3,83 4,30 8,13

% 0,87 0,95 0,80 0,75 0,93 0,98 1,13 1,30 1,40 1,45 1,87 2,07 7,00 7,5 14,5

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Disadaptation % 1,90 2,38 1,90 2,48 2,78 2,38 2,43 2,08 2,62 3,10 1,63 2,23 13,27 14,67 27,93

n 99 56 112 79 125 68 107 84 98 126 43 116 584 529 1113

% 1,65 0,93 1,87 1,32 2,08 1,13 1,78 1,40 1,63 2,10 0,72 1,93 9,73 8,82 18,55

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According to the obtained results, it is possible to indicate that 4642 persons show dependence, 77.37% of respondents, including 2290 boys (38.17% of respondents) and 2352 girls (39.20% of respondents). 488 people (8.13% of respondents), including 230 boys, which is 3.83% of respondents and 258 girls, which is 4.30% of respondents, were found to have no addictions. Without pathological signs of addiction, 870 people were found (14.50% of respondents) who control the process of using PCs and the Internet, demonstrate the normal, socially acceptable use of interactive technologies that meet modern needs of society including 420 young people, 00% of respondents and 450 girls, which is 7.50% of respondents.

Thus, among the younger generation in the age group from 14 to 21 years do not have manifestations of cyber-addiction, are able to control the time spent online or using PCs, gadgets or other electronic devices found only 22.63% of respondents, including 10.83 % boys, and 11.80% girls.

Dependence (described indicators of total dependence on the 1st, 2nd and 3rd degree hereinafter the total indicator) from PC show 10.08% of respondents, of whom boys - 5.18% of respondents, and girls 4.90% of respondents.

The total rate of Internet addiction was found in 11.95% of respondents, including boys - 5.87% of respondents, girls 6.08% of respondents. The total rate of game addiction was found in 13.70% of respondents, including boys - 7.98% of respondents, girls 5.72% of respondents. The total rate of gadget addiction was found in 12.78% of respondents, including boys - 6.92% of respondents, girls 5.87% of respondents. The total rate of cyber-communicative addiction was found in 14.18% of respondents, including boys - 6.52% of respondents, girls 7.67% of respondents. The total rate of selfitis was found in 14.67% of respondents, of whom boys - 5.70% of respondents, girls 8.97% of respondents.

Thus, it is possible to note that boys in the age group from 14 to 21 years are more prone to addiction to PC, game addiction and gadget addiction, and girls - to cybercommunication addiction and selfitis. This distribution of cyberaddiction among young people can be explained by leading gender interests. Young people in the age group of 14 to 21 are more focused on realizing themselves in cyberspace as experts in certain information technologies, watching software updates of computers, gadgets and other electronic devices. They see the gaining of authority among peers in game success, gaining updates from their cyber-heroes, through which

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they present themselves and their status in cyberspace. Girls are more interested in establishing interpersonal communication, forming their own image of «I», demonstrating themselves and popularity among peers, forming groups of cyber-supporters, and so on.

Conclusions The study allowed us to come to the following conclusions, which were determined by the purpose and objectives.

1.

Considering the diverse views of modern scientists, it is possible to note that sociologists consider the fascination with cyberspace as a kind of deviation. Recently, the views of physicians and psychologists are increasingly reduced to the position that cyber-addiction is a pathological urge or disease that belongs to the category of nonchemical dependencies and has its own nosology, etiology, pathogenesis and needs prevention, treatment and psychocorrection.

In a broad sense, cyber-addiction can be defined as a type of non-chemical addiction, expressed in a mental disorder caused by an obsessive desire to be constantly in virtual reality, live and be realized in cyberspace through the use of gadgets or electronic devices, despite the social destruction of material consequences for health and for the process of life in general.

2.

In our opinion, among non-chemical addictions it is already possible to distinguish: socially acceptable addictions; pathological non-chemical addictions; cyber-addiction.

Socially acceptable addictions include: workaholism; religious; addiction to a healthy lifestyle; addiction to relationships; pathological reading; collecting, etc. Pathological non-chemical addictions include: gambling; shopaholism; ziping; television dependence, as well as noise dependence, etc.

Depending on the way of deviating from reality, it is possible to separate three dyads of cyberaddictions: 1st dyad - Introverted includes dependence on PC and Internet addiction; 2nd dyad - Mixed, which includes such types of cyber-addiction as game addiction and gadget addiction; 3rd dyad - Extraverted includes: cyber-communicative addiction and selfitis.

Depending on the addiction agent (on the direction of satisfying the pathological need), it is possible to distinguish among Internet

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58 addiction: addictive Internet surfing; cyberoniomania; pathological online reading.

Cybernetic addiction and online gambling are separated as subtypes of game-addiction. The subtypes of cyber-communicative addiction include cybersex, fab, virtual dating, and so on.

3.

According to the set tasks, an experimental study was conducted to identify the prevalence of cyber-addiction among young people and found that the most typical for young men are: computer addiction, Internet addiction, game addiction and gadget addiction, girls are more typical: cybercommunicative addiction and selfies. When considering age, it is possible to note that the highest rates of 3rd degree of addiction are among persons from 19 to 21 years, more even distribution of 2nd and 3rd degrees of addiction among persons in the age group from 14 to 15 years. Due to the analysis of the obtained results, it was established that an addict can have not one dependence, but several, although each of them may have a different degree of manifestation.

Further studies of the specifics and severity of types of cyber-addictions among young people will give us the opportunity not only to describe the psychological characteristics, but also to approach the development of adequate psychological technologies for their prevention, prevention and psychocorrection.

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DOI: https://doi.org/10.34069/AI/2021.44.08.6 How to Cite: Slinko, S.V., Yepryntsev, P.S., Shapar, A.O., Sanakoiev, D.B., & Harkusha, A.H. (2021). Modern indicators of financial crimes detection and their prevention in Ukraine. Amazonia Investiga, 10(44), 61-72. https://doi.org/10.34069/AI/2021.44.08.6

Modern indicators of financial crimes detection and their prevention in Ukraine СУЧАСНІ ІНДИКАТОРИ ВИЯВЛЕННЯ ФІНАНСОВИХ ЗЛОЧИНІВ ТА ПРОТИДІЯ ЇМ В УКРАЇНІ Received: July 10, 2021

Accepted: August 30, 2021

Written by: Sergey V. Slinko24 https://orcid.org/0000-0001-8611-3759 Pylyp S. Yepryntsev 25 https://orcid.org/0000-0002-9790-9565 Artem O. Shapar26 https://orcid.org/0000-0001-5327-701X Dmytro B. Sanakoiev27 https://orcid.org/0000-0002-6783-3168 Alina H. Harkusha28 https://orcid.org/0000-0002-3299-8405 Abstract

Аннотація

The increase in the level of financial crime is caused by the technological development, weak moni-toring of financial institutions, low level of international cooperation in terms of combating these types of crimes. The paper aims to develop effective ways to combat financial crimes in Ukraine. With the help of a systematic analysis of financial crime modern indicators, theoretical sources, prac-tical measures and international experience, the main indicators of financial crimes are identified. Such indicators are the use of false documents and other people's accounts, international payment systems; frequent and complex financial transactions of a confusing nature; unusual for a client amounts and counterparties of the transaction; incomplete or missing payment information. The study has found that the increase in the level of financial crime is influenced by the presence of off-shore zones, the low level of liability for the crime, the reluctance of financial institutions to interact with law enforcement agencies in regard to combating such crimes. It is possible to increase

Підвищення рівня фінансової злочинності зумовлено технологічним розвитком, слабкістю моніторингу фінансових установ, низьким рівнем міжнародної взаємодії в аспекті протидії таким видам злочинів. The paper aims to вивити ефективні способи протидії фінансовим злочинам в Україні. За допомогою системного аналізу сучасних індикаторів фінансової злочинності, теоретичних джерел, практичних заходів та міжнародного досвіду визначені основні індикатори фінансових злочинів. Такими індикаторами є використання несправжніх документів та чужих рахунків, міжнародних платіжних систем; часті та складні фінансові операції заплутаного характеру; незвичні для клієнта суми та контрагенти операції; неповна або відсутня інформація про платіж. В результаті дослідження визначено, що на підвищення рівня фінансової злочинності впливає наявність офшорних зон, низький рівень встановлення відповідальності за скоєний злочин, небажання фінансових

24

Doctor of Law, Professor, Kharkiv National University of Internal Affairs, Ukraine.

Candidate of Law, Director of the Kryvyi Rih Educational and Scientific Institute of the Ministry of Internal Affairs of Ukraine, Kryvyi Rih, Ukraine.

26 PhD of Law, Associate Professor Deputy Director for Educational and Research Activities of the Kryvyi Rih Educational and Scientific Institute Donetsk State University of Internal Affairs, Kryv-yi Rih, Ukraine.

27 Associate Professor, Candidate of Juridical Sciences, Dnipropetrovsk State University of Internal Affairs, Dnipro city, Ukraine.

28 Associate Professor, Candidate of Juridical Sciences, Associate Professor of the Department of Criminal Procedure, Dnipropetrovsk State University of Internal Affairs, Dnipro city, Ukraine.

25

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Slinko, S.V., Yepryntsev, P.S., Shapar, A.O., Sanakoiev, D.B., Harkusha, A.H. / Volume 10 - Issue 44: 61-72 / August, 2021

the level of financial crime counteraction by conducting an external audit and investigation of financial crimes, establishing international cooperation to combat such crimes, blocking suspicious financial transactions, taking preventive measures and combating related crimes.

Key words: audit, crime, fraud, international organizations, Ukraine.

установ взаємодіяти із правоохоронними органами в аспекті протидії таким злочинам. Підвищити рівень протидії фінансовій злочинності можливо за допомогою проведення зовнішнього аудиту та зовнішнього розслідування фінансових злочинів, налагодженню міжнародної взаємодії щодо протидії таких злочинам, блокування підозрілих фінансових операцій, проведення профілактичних заходів та боротьба з пов’язаними злочинами (корупцією, кіберзлочинністю, відмиванням грошей). В результаті підвищення ефективності протидії фінансовій злочинності в Україні підвищиться рівень економічної та політичної стабільності. Ключові слова: аудит, злочинність, шахрайство, міжнародні організації, Україна.

Introduction Financial security in modern economic conditions is an important part of sustainable development of the state. Financial crimes, which are quite common in Ukraine and in the world, can constitute a threat to economic stability. Mechanisms for committing financial crimes are constantly updated and improved through technological and information development, which complicates the process of detecting and investigating such crimes.

The features of crimes in the financial sector is that they do not pose a direct threat to life and health, they are not associated with the use of physical force, and are more characterized by the availability of specific knowledge of criminals regarding the financial institutions operation and economic system gaps which allows them to commit a financial crime.

The main purpose of criminals is to obtain financial resources illegally or avoid losing them.

Financial crime rate increasing can cause damage to the entire economic system of the state.

In 2020 in Ukraine, the level of the shadow economy, according to preliminary calculations of the Ministry of Economy, amounted to 31% of official GDP. At the same time, the level of the shadow economy in 2019 amounted to 28% of official GDP (According to the Ministry of Econo-my of Ukraine, 2020). The shadow economy is constantly changing and updating, new tools and schemes for committing financial crimes are being introduced, which is one of the reasons for the decrease in state budget revenues.

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Achim et al. (2021) analyze the increase of financial crime rate: referring to the level of corruption, Lagarde (2016) confirms that 2 percent of world gross domestic product is paid in the form of bribes annually, amounting to 1.52 trillion USD per year worldwide. In addition, Achim et al. (2018) find that 19 percent of European countries' GDP is lost in the shad-ow economy. The results of economic crimes and fraud study show that 17% of organizations in Ukraine suffer from fraud related to unethical professional behavior of employees (PwC, 2018).

In order to combat financial crimes effectively, it makes sense to analyze common tools for committing such crimes, modern indicators and criteria for detecting such crimes, international expe-rience in combating financial crimes, which can help identify effective ways to minimize and com-bat financial crime.

The paper aims to identify effective ways to combat financial crime in Ukraine based on the analysis of financial crime modern indicators, theoretical sources, practical measures and interna-tional experience in detecting and combating financial crime.

Metodology Financial crime is an interdisciplinary study object, so it is advisable to study a comprehensive approach including general theoretical and special cognition methods. The methodological basis of the study involves such

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general scientific methods as the dialectical method of scientific knowledge, which determines the development of financial crime, as well as the relationship between financial crime and other crimes (corruption, cybercrime) affecting the security of the state as a whole. Due to the application of classification method and systematic analysis, the main forms, features, methods and tools of financial crimes are identified. The grouping method and the systemstructural approach allowed to classify modern financial crimes and to define the main groups of persons who commit financial crimes.

Based on the systematization of theoretical data and practical measures used by leading countries, the most effective indicators for detecting financial crimes have been identified. Indicators and measures to combat financial crime in other countries were analyzed. The generalization of indicators for the detection of financial crimes in other countries (USA, France, Italy) allowed to determine the system of indicators for the detection of such crimes in UkraineBased on the method of comparative law, effective measures to combat and prevent financial crimes in Ukraine have been identified. The logical and legal method allowed to identify the main preventive measures, which can reduce the level of financial crime in Ukraine, to identify the main indicators increasing the level of crime detection in the financial sector. Due to the method of generalization, universal measures to combat financial crime are identified; conclusions and research proposals are formulated.

Literature review

generally brought before the courts (Arbeláez C., et al, 2013).

Financial crimes are related to cybercrime, as criminals enjoy the benefits of ICT. McGuire and Dowling (2013) state that fraud and theft are the most common cases of cyber technology application to commit a crime.

Snyder and Khreshchentsi (2009) note that the intellectual property of criminals is related to cybercrime, and that the increase in cybercrime level gives the way for the victimization of the intellectual properties of business.

Weakness and low authority of state power, low efficiency of law enforcement mechanisms can be a source of increasing the shadow economy and financial crime (Paientko, 2013).

"Fraud", "corporate crime" and "white-collar crime" are the terms that can be used in reference to financial crimes. Financial crimes are illegal acts committed by both an individual and a group of individuals to achieve financial or professional benefits (O'Brien, 2019) The increased public danger of criminal activity in the financial sphere may lie in the fact that the state as a whole (represented by public financial institutions, public companies and institutions, pension funds, etc.), private companies and individual investors suffer losses (Tikhonova, 2018).

L. Kryvoruchko and P. Nazarenko (2012) identify the following ways (types) of committing financial crimes: 

The scientific research is based on the works of modern domestic and foreign scientists, the subject of research of which is financial crime, its peculiarities and methods of counteraction.

Gottschalk (2010) classified a wide range of financial crimes and distinguished four main categories: corruption, fraud, theft, and manipulation. O. Bura and I. Dobrovolska (2017) distinguish the financial pyramid, job search fraud, "marriage" fraud, carding, phishing among the types of financial crimes.

Identifying the roots of financial crimes can identify effective prevention and monitoring measures to minimize financial crime and ensure quality financial reporting (Razaee, 2005).

Likewise, another documentary type investigation could infer that the forensic audit is that work that focuses on the prevention and detection of financial fraud. For this reason, the results of the Forensic Auditor's work are

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



crimes in the banking sector using: criminal schemes of banks bankruptcy; "Electronic fraud"; making duplicate keys of bank customers' repositories; disclosure of insider information; currency transactions; crimes in the field of credit relations with the use of: unjustified closure of pledge on the basis of falsified fax messages and photocopies of documents; express credit granting in stores, etc.; crimes in the field of securities circulation with the use of: a fictitious agreement of sale and purchase; forged documents and securities; fictitious securities; specially created computer programs or the Internet to penetrate the database of registration and depository companies and change information about the owners of securities for the own benefit; creation of a "financial pyramid" with the use of securities;

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64 

crimes committed by creating financial pyramids using network marketing and the main forms of attracting trusting customers.

Western Union provides information on its official website about the following types of crimes: advance payment fraud, employment fraud, lotteries fraud, property lease fraud, fraud involving emergency situation with relatives, online shopping fraud, Internet dating fraud, fraud involving forgery of payment receipts (Western union, 2021).

One of the common types of financial crime is falsification of financial statements. This is confirmed by a study of the international company PricewaterhouseCoopers, which among the most "popular" economic crimes and frauds in 2018 (along with bribery and corruption, misappropriation of property, fraud in the field of procurement and taxation) also distinguished falsification of financial statements (Ukraine - 13% and global index - 20%) (PricewaterhouseCoopers Ukraine, 2011).

The Association of Certified Fraud Examiners (ACFE) in its research conducted in 2018 "Report to the Nations" distinguishes the most common fraud schemes, which include: misappropriation of assets, corruption and falsification of financial statements.

D.M. Kharko (2010) identifies the following features of economic crime:        

it is a type of crime that is used mainly en masse, respectively, causes mass damage; it covers various economic power abuses; it is committed in the process of professional activity of the manager's power; it has a plurality of crime episodes; it is committed by both individuals and legal entities; it is a more complex socio-economic phenomenon than traditional crime; it has a latent character; it causes significant economic damage to the state interests.

The Internet can be considered an environment for the spread of financial crime (Wall, 2007).

Michel (2008) states that financial crime is caused by opportunities for criminals and weak liability imposing procedures. This statement is mainly based on the theory of rational choice. If criminals think they can benefit more from financial crimes compared to the costs spent and probabilities to be punished, it is worth the risk.

This allegation is related to the justification of

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money laundering and tax evasion. If criminal proceeds are guaranteed, it will increase the level of financial crimes. If the state succeeds in creating conditions where the cost of complying with the law (law-abiding behavior) is significantly lower than the cost of illegality or evasion of punishment, this may be the best step towards overall crime prevention. The fact is that when the price of lawful behavior is higher than the price of illegal behavior, a person makes a decision in favor of the latter activity option. This testifies the fact that the person, after analyzing the losses and benefits of his or her actions, draws a conclusion that directly affects the decision. A person weighs all the pros and cons and chooses the behavior that will provide him or her the greatest personal benefit with the least loss, in particular with the least risk of punishment (Melnichuk, 2009).

O. Tykhonova (2019) draws attention to the importance of taking preventive measures when combating against financial crimes.

However, relying on prevention alone cannot completely combat financial crime, as such crimes are very creative and can take any form.

Each new financial crime case includes a unique component that leads to the failure of existing prevention methods. Therefore, due attention should also be paid to detection methods (Bolton & Hand, 2002).

A. Kovbel (2019) notes that business owners in Ukraine underestimate external forms of control (external audit, involvement of external consultants to conduct independent investigations); Only 10% of Ukrainian organizations have experience in engaging external consultants for independent investigations” (Kovbel, 2017).

Sadgali et al (2019) note that various methods of money laundering (especially artificial intelligence methods) can be applied to detect credit card crimes. The best methods for detecting crimes in financial reporting are probabilistic neural network and genetic algorithm (Sadgali et al., 2019). The use of such technologies allows data to be systematized, risks to be profiled, and the origin of illicit funds used for criminal purposes in the future to be detected (Levi & Wall, 2004; Amoore & de Goede, 2005).

Against the background of significant amounts of illegal financial flows, the frauds involving the funds theft from customer accounts, minor manipulations in the securities market and in the non-bank financial institutions sector cannot be

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ignored. The motives for such manipulations are not only related to profit, but also to the low probability of punishment. Despite the relatively small volumes (in isolated cases), in the aggregate such criminal actions can cause significant financial and reputational damage to the economy of Ukraine (Chunytska, 2017).

The Financial Privacy of such countries as Switzerland and the Cayman Islands provides favourable conditions and environment for financial crime, market manipulation and money laundering (Ruggiero, 2015).

Some financial crimes occur on their own, and some may involve other types of crimes financial and non-financial. Financial crimes include money laundering, cyber- and technological crime, personal crime, exploitation of business structures and corruption in the public sector. Such criminal activity exists in itself and becomes the basis for other types of organized crime. All this can complicate the process of detecting and investigating financial crimes and bringing criminals to justice. When a financial crime is committed by an employee of a financial institution, it is difficult for law enforcement officers to bring him or her to justice for illegal transactions. Law enforcement officers can impose multimillion-dollar fines on large financial institutions and banks instead of bringing charges against individuals (Jeyong, Julak, 2017).

Each country has a specific body, which conducts financial investigations and has a number of powers vested in a special body (Grudzevych, 2009, p. 169). Rider et al (2014) also draw attention to the importance of interaction between government authorities and law enforcement agencies in the fight against financial crime. Because during the economic crisis, the financial system of each country is exposed to a number of factors creating the conditions for illegal encroachments on the financial interests of the state. It is important that special services cooperate with law enforcement agencies of foreign countries, as crimes in the financial sector become international (Pik, 2013).

Zoldi (2015) notes that an integrated analytical approach, which will be constantly improved and updated, is essential in combating financial crimes. D.S. Rohovenko (2011) notes that in combating financial crimes it may be appropriate to create a single information base regarding fraud cases in the financial market of Ukraine.

"The exchange of information on suspicious cases and joint investigations are quite effective

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means of combating encroachments on financial institutions" (Rohovenko, 2011, p.59).

Ryder (2011) notes that the integrity of the financial system can be destroyed through financial crimes, and the consequences of financial crime can be a threat to national security.

Vitvitskiy et al (2021b) note that rapid and timely exchange of information can increase the process of crimes investigation in the financial system.

Rahman & Anwar (2014) note that it is not advisable to rely on the technical means of crimes detection when combating against financial crimes, as financial crimes are constantly being modernized.

It makes sense for the countries to cooperate in terms of legal assistance, extradition and the exchange of intelligence information to reduce crime. It is important to develop an international integrated legal system to combat crime so that such criminal investigations can be carried out regardless of national borders. (Tishchenkova et al, 2019).

It is also important to combining the efforts of various social institutions in the direction of raising the level of welfare of the nation, educational and training work with vulnerable strata of the population (young people, former prisoners, participants in hostilities, etc.), and support of moral principles in society, humanity, which can reduce crime in the country (Tishchenkova et al, 2018).

Results and discussion Financial crimes can be the main threat to the country's financial systems, as the level of their commission is constantly increasing, and at the same time, the data on financial crime may not always reflect its actual level, which confirms the study by Antinori (2018).

The impact of fraud and economic crime on all organizations around the world is still significant.

The most common scheme of financial crimes is misappropriation of assets, when an employee steals or misuses the resources of the organization (ACFE Report To the Nations, 2020). The process of preventing financial crimes can be expensive and time consuming, but combating against financial crime ensures the optimal development of society. Effective corporate governance can play an important role in the financial crime management (Murphy and Free, 2016).

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66 Modern financial crimes in the modern world can take the following forms:       

life insurance fraud; property insurance fraud; theft; illegal withdrawal of loans; money laundering; personal information theft; extortion from the senior citizens (Business Forensics, 2021)

There are seven groups of people who commit various types of financial crimes:   

   

Organized criminals, including terrorist groups, who commit large-scale fraud to finance their operations. corrupted heads of state who can use their position and powers for their own enrichment. business leaders or senior executives who manipulate or misrepresent financial data in order to conceal the true financial position of the company. employees stealing company funds and other assets. customers, suppliers, contractors or persons who are not related to the organization. conspiracy of external criminals with an employee to achieve a better and simpler result. personal criminal fraudsters, serial or opportunistic individuals who own their income (ICA, 2021).

The main forms of financial crime in cyberspace are electronic financial, fraudulent sales via the Internet or retail sites, mass marketing fraud, phishing and online dating sites.

Based on the analysis of legal documents and reports of the State Financial Monitoring Service, the instruments of financial crime in cyberspace are identified:      

use of accounts set up for lost or forged documents; opening an account in the name of lowincome citizens and enterprises with signs of fictitiousness; use of international payment systems; conducting chain financial flows through several bank accounts using remote access; electronic funds and cryptocurrencies; involvement of fictitious persons.

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Terrorist financing is one of the types of financial crime. The most common tools in such schemes are as follows:    

providing financial assistance; agreements on assignment of claims; use of charitable organizations; involvement of fictitious persons.

Criteria for identifying financial transactions for terrorist financing may be as follows: 

       

receipt of funds in small amounts from different persons for a short period of time in favor of one person with the payment purpose description "help", "for treatment", "charitable help", "kindness"; the recipient and / or initiator of the funds transfer is a public and / or charitable organization; unusual for the client amount of financial transaction; unusual counterparty for the client; uncharacteristic payment purpose description of the client's financial transaction; payments made by persons who do not fully know or reluctantly report the details of the payment; electronic transfer payment transaction, in which there is no complete information about the initiator or recipient; confusing nature of the financial transaction; lack of economic content (State Financial Monitoring Service of Ukraine, 2017).

The formation and development of the informal economy and the growth of illegal financial flows are fueled by the successful operation of offshore zones. The stable demand for doing business in offshore zones may be conditioned by the institutional factors (institutional deformations of the Ukrainian economy, lower transaction costs). Low transaction costs are related not only with a lower level of tax burden, but also with the exemption from taxation of passive income, the ability to keep accounts in foreign currency, no reporting in some countries (eg, Belize, Panama, British Virgin Islands), free registration, low operating costs, etc., which confirms the study by Paientko (2013).

In the study, it is advisable to analyze countering financial crime in developed countries. Among the bodies, which investigate financial crimes in the United States, a special place is occupied by the Financial Crimes Enforcement Network (FinCEN). Its competence includes the

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collection, processing, analysis and classification of financial information with its subsequent transfer to the competent authorities. To effectively analyze financial information, FinCEN has extensive sources of information, including access to the National Security Agency information. An important aspect of FinCEN's work is its interaction with other organizations in order to cooperate during the investigation of financial crimes. In particular, FinCEN has entered into an agreement with the Committee for the Processing of Intelligence Information and the Fight against Illegal Networks of Financial Institutions (Tracfin), which operates under the French Ministry of Finance. FinCEN also signed an agreement with the UK's National Criminal Intelligence Network (NCIN) (Lepsky, 2014).

According to the Federal Bureau of Investigation, in the United States, financial crime is mostly manifested in the form of corporate fraud, mortgage fraud, investment fraud. One of the distinctive display of financial crime in the United States is corporate fraud, which involves the manipulation of financial data and insider information trading. In 2016–2018, about 2,300 of such facts were revealed, the losses for which amounted to more than 3.7 billion dollars. (FBI, 2018).

According to the FBI data, the number of cases involving falsification of financial information remains relatively stable, while there is a sharp increase in the number of cases of insider information trading (Klochko, 2013).

In France, the financial intelligence unit operates within the Ministry of Economy, Finance and Industry and is divided into three units for efficient data processing, in particular: Information Collection Center, State Expertise Department, Operational Department. In the Federal Republic of Germany, the financial intelligence units are part of the police and have the following powers: collection and analysis of reports on suspicious financial transactions; transfer of analysis results to law enforcement agencies; providing financial monitoring institutions with information on money laundering methods (Kuchmii, 2020).

In Italy, a specialized body has been created to investigate financial crimes, the Financial Guard, which is subordinated directly to the Ministry of Economy and Finance. The main tasks of the Financial Guard are as follows: 

        

implementation of customs control; control over the spending of public funds; supervision of excise taxes; supervision of legality during public procurement; combating organized crime; counteraction to counterfeiting of coins and banknotes; prevention and combating fraud in the EU system; protection of patents, copyrights, including national products and Italian trademarks; organization of interaction with other law enforcement agencies, controlling bodies of the country. Financial investigations are carried out by the Financial Guard both under the supervision of the prosecutor and independently (Marchenko, 2017).

The international organization FATF (2019) is important in the field of combating financial crimes. The FATF Recommendations establish a comprehensive and coherent framework for measures that countries should apply to counter money laundering and terrorist financing and the financing of the proliferation of weapons of mass destruction.

Thus, the ways to increase the effectiveness of preventive activities in ensuring the financial security of the state are: 

    

 

increasing the requirements for persons who receive appeals from citizens about the facts of violations in the financial system of the state; determination of criteria for evaluating the work of law enforcement agencies on crime prevention; intensification of public participation in compliance with the legislation governing financial activities in the state; ensuring the development of international cooperation in the field of financial offenses prevention; creation of a single database in which information on illegal activities of persons will be accumulated; introduction of active educational activities aimed at forming a negative attitude to illegal acts committed in the financial system; fiscal policy improvement, introduction of an effective control system over the sale of goods in the domestic market; prevention of illegal goods transfer across the customs border;

tax control;

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68 

improving information support for crime prevention and citizens’ protection from illegal encroachments on their rights in the field of formation and circulation of finances through mass media.

Based on the analysis of literature sources, the most common tools for corporate financial crimes detecting are identified: 

Compliance is a set of statutory provisions, internal policies and company regulations, which must be followed by each employee.

Compliance covers corporate ethics policies, reporting breaches, maintaining data confidentiality, resolving conflicts of interest, etc. (Khamyha, 2020);

 

annual audit of financial statements; whistle blowing system (WBS) - a feedback system which allows to identify fraudulent actions by third parties with the help of people working for the company (Kovbel, 2019).

Conducting a financial audit may be ineffective in case when financial institutions conceal existing shortcomings in order to maintain their customer base and trust level (Vitvitskiy et al, 2021a).

Analysis of the main features, forms and methods of committing financial crimes allows to determine the main indicators by which the following types of crimes can be detected.

Figure 1. Financial crime in Ukraine (developed by the authors) The main indicators of financial crime are as follows:   

 

use of false documents for financial transactions; use of international payment systems; use of someone else's accounts to commit a crime;

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 

conducting frequent small scale financial transactions; unusual for the client amount of financial transaction; unusual counterparty for the client ; uncharacteristic payment purpose description of the client's financial transaction;

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   

incomplete information on the purpose of payment; lack of information about the recipient or initiator of payment; confusing nature of the financial transaction; lack of economic content of the financial transaction.

The increase of financial crime level may be a consequence of the low maturity of the institutional environment and the high level of information asymmetry. Financial crime can also be influenced by the merging of political power and big business, which is typical of Ukrainian society (Paientko, 2016).

Financial crime can be related to a country's economic development. Economic development affects the level of financial crime of countries in different ways, reducing the financial crime of low-income countries and stimulating financial crime of high-income countries. Unemployment, which should be reduced in developed countries to reduce financial crime, is also related to financial crime. Rising unemployment rate in low-income countries is a side effect of lowering financial crime. It is important to take into account economic development, unemployment and tax freedom rate in respect to combating financial crime. Reducing the level of tax freedom can have a positive effect on reducing the level of economic and financial crime (Achim et al., 2021).

The reduction of financial crime among employees of financial institutions can be achieved by increasing the financial motivation of employees and maintaining the appropriate level of their remuneration. Another factor reducing the level of corporate financial crime may be the moral aspect of financial institutions staff activities - fear and shame for dishonest behavior, deterioration of organization reputation. It makes sense to eradicate nontransparent accounting and reporting schemes and possible financial manipulation in the company (signing blank forms of the organization "just in case", etc.).

A combination of anti-fraud mechanisms should be applied, including financial monitoring, implementation and control of compliance with the code of conduct, increasing the level of reporting of fraud, fraud risk assessment, use of anti-fraud services, verification of information about employees and customers of financial institutions, data analysis, firewall and anti-fraud policies, and training of financial and law enforcement officials to combat fraud. Thus, the

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basis for combating financial crimes is the effective management of the national financial system, which is carried out by the government, the head of state and the activities of law enforcement agencies, which are tasked with combating financial crime.

Active participation of financial institutions in facilitating money laundering and terrorist financing can be an obstacle and threat to the detection of financial crimes. The reluctance of financial institutions to provide law enforcement agencies with access to information on financial crimes can be explained by the following reasons:    

fear of losing the trust of customers; obtaining their own benefit from financial crimes; desire to keep up their own reputation conspiracy with law enforcement, business or government officials.

Financial crimes are characterized by their interaction with other forms of crime, such as:    

corruption; money laundering and terrorist financing; cybercrime; operation of business structures.

The increase of financial crime rate is also influenced by the existence of offshore zones and weak procedures for establishing responsibility for committing a crime.

All this complicates the process of detecting and investigating financial crimes.

Among the universal measures to combat financial crimes, which are quite common in Western countries, we can distinguish the following ones: 1) establishing cooperation and interaction with competent authorities and international organizations to exchange information and experience in detecting and investigating financial crimes; 2) blocking suspicious financial transactions; 3) supervision over the effectiveness of state policy implementation in this area of activity; 4) carrying out preventive measures aimed at reducing financial crime; 5) combating related crimes (money laundering, terrorist financing, cybercrime, corruption);

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70 6) involvement of external forms of control, such as external audit, involvement of external consultants to conduct independent investigations.

As a result of identifying relevant indicators of financial crimes and increasing the effectiveness of financial crime combating, the level of crimes related to financial crimes can be reduced, which will be the basis for the stable development of the Ukrainian economy and politics.

Conclusion Increasing levels of the shadow economy and financial crime threaten the financial security of the state. The aim of the article is to identify effective ways to combat financial crime in Ukraine. The main indicators of financial crimes are identified: the use of false documents, international payment systems, other people's accounts to commit a crime; conducting frequent and complex small scale financial transactions, unusual financial transaction for the client by amount or counterparty, unusual purpose of payment, incomplete information on the purpose of payment, recipient or initiator of payment, confusing nature of financial transaction, lack of economic content of financial transaction.

Financial crimes are closely related to corruption, money laundering, cybercrime and the exploitation of businesses structures.

Criminals profit by offshore zones and a weak level of criminal responsibility. Possible ways to increase the level of effectiveness of financial crimes combating may be as follows: establishing cooperation with the relevant authorities and international organizations to share information and experience in detecting and investigating financial crimes, blocking suspicious financial transactions, improving the implementation of public policy in this area, prevention, combating against related types of crimes, involvement of external forms of control. The implementation of the above mentioned measures can have a positive impact on the economic and political stability of the state.

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DOI: https://doi.org/10.34069/AI/2021.44.08.7 How to Cite: Cruzata-Martínez, A., Quijano Benavides, H.A., Vergaray Charra, L.E., Hernández, R.M., & Saavedra-López, M.A. (2021).

Education for entrepreneurship: In search of the fifth pillar "Learning to be entrepreneurial”. Amazonia Investiga, 10(44), 73-83. https://doi.org/10.34069/AI/2021.44.08.7

Education for entrepreneurship: In search of the fifth pillar "Learning to be entrepreneurial” Educación para el emprendimiento: en busca del quinto pilar "Aprender a ser emprendedor" Received: March 12, 2021

Accepted: June 12, 2021

Written by: Alejandro Cruzata-Martínez29 https://orcid.org/0000-0003-0104-0496 Henry Arturo Quijano Benavides30 https://orcid.org/0000-0001-9897-5145 Luz Elizabeth Vergaray Charra31 https://orcid.org/0000-0002-5073-653X Ronald M. Hernández32 https://orcid.org/0000-0003-1263-2454 Miguel A. Saavedra-López33 https://orcid.org/0000-0003-4913-933X Abstract

Resumen

Currently, the entrepreneurship boom is on the rise, education centers from elementary to higher education are betting on providing an entrepreneurial education. The purpose of this article is: To recognize the development of social entrepreneurship competencies from the four pillars of education, adding a fifth pillar which “knows how to be an entrepreneur". In addition, it is achieved: to recognize the transforming mission of social entrepreneurship competencies within the educational field, to identify the challenges faced by educational systems and how school entrepreneurship is adapted, to compare successful experiences of different countries in entrepreneurship, to analyze the importance of entrepreneurial education from the four pillars as a basis for the construction of the fifth pillar "Learning to undertake" and to differentiate the roles of the educational community.

Consequently, documentary analysis is used, after selecting articles, various books, congresses, etc. related to educational entrepreneurship.

Actualmente, el boom del emprendimiento va en aumento, los centros educativos desde la educación básica hasta la superior están apostando por brindar una educación emprendedora. El propósito de este artículo es: Reconocer el desarrollo de las competencias del emprendimiento social desde los cuatro pilares de la educación, agregando un quinto pilar el cual “saber ser emprendedor”. Además, se logra: reconocer la misión transformadora de la sociedad competencias de emprendimiento dentro del ámbito educativo, identificar los desafíos que enfrentan los sistemas educativos y cómo se adapta el emprendimiento escolar, comparar experiencias exitosas de diferentes países en emprendimiento, analizar la importancia de la educación emprendedora desde los cuatro pilares como base para la construcción del quinto pilar “Aprender a emprender” y diferenciar los roles de la comunidad educativa, por lo que se utiliza el análisis documental, previa selección de artículos, libros diversos, congresos, etc. relacionados con el emprendimiento educativo.

29

Universidad San Ignacio de Loyola, Lima, Perú.

Universidad San Ignacio de Loyola, Lima, Perú.

31 Universidad San Ignacio de Loyola, Lima, Perú.

32 Unidad de Virtualización Académica, Universidad de San Martin de Porres Perú.

33 Facultad de Humanidades, Universidad Continental, Cusco, Perú.

30

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Cruzata-Martínez, A., Quijano Benavides, H.A., Vergaray Charra, L.E., Hernández, R.M., Saavedra-López, M.A. / Volume 10 - Issue 44: 73-83 / August, 2021

Keywords: Pillars of education, learning entrepreneurship and social entrepreneurship competencies.

Palabras clave: Pilares de la educación, el aprendizaje del emprendimiento y competencias del emprendimiento social.

Introduction Today's world is undergoing constant transformations that generate not only progress but also uncertainty in the economic field. For this reason, it is essential to promote and develop skills that lead to effectively cope with current challenges. In this sense, the promotion, acquisition and development of entrepreneurial skills should be considered within the educational curriculum.

From there, different world organizations suggest that educational institutions take on education in entrepreneurship, with the intention that students can act responsibly, anticipating the challenges and economic needs.

In this regard, Lederman, Messina, Pienknagura & Rigolini (2014), mention that the World Bank recognizes that entrepreneurs play a very important role in the development of society, capable of transforming ideas into initiatives, with the ability to innovate and lead other people.

However, in order for entrepreneurs to prosper successfully, a favorable economic and political environment is required to encourage the growth of innovation.

For their part, Seria, et al., (2020), note that for the Global Entrepreneurship Monitor (GEM), public policy makers and academics agree that entrepreneurship has a major importance in social progress. Thus, it creates jobs, boosts investment and strengthens a country's economy through the development of competencies that contribute to productivity and competitiveness.

Therefore, for UNESCO (2016), education is at the core of the 2030 agenda, within the "Sustainable Development Goal" (SDG) number 4, and the efficiency of the educational service must be certified. To achieve this, entrepreneurship is included in goal 4.4, which proposes to increase the number of students with the necessary knowledge, skills and competencies to ensure a decent job and life.

For this reason, Hidalgo (2000), shares the report made by the international commission headed by the renowned intellectual Jacques Delors, requested by UNESCO, which proposes four essential learning processes: The first "Learning to know", which seeks to deepen knowledge. The second "Learning to do" highlights the ability to cope with different situations and to work in

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teams. The third "Learning to live together" mentions the importance of understanding the other, carrying out projects together and finally the fourth "Learning to be" concerning the ability to work autonomously and personal responsibility.

Therefore, education must be conceived as a whole and to achieve this Mayor (1998), adds a fifth pillar called: "Learning to undertake", being a cornerstone for the construction of the tomorrow we long for.

Likewise, "The Organization for Economic Cooperation and Development" OECD (2016; 2019), recognizes that education leads to economic growth, social inclusion and equality.

At the same time, it addresses issues such as the quality of education systems, with the aim of preparing citizens with the ability to meet the challenges of the modern world.

On the other hand, the Global Entrepreneurship Monitor (GEM) was created in 1997 and is considered today the largest global project in charge of entrepreneurial research. For this reason, Peru has been part of this initiative since 2004, together with 54 countries from the five continents (Langevang, et al., 2015; Ministry of Education, 2017; National Council of Education, 2020) For the (GEM) according to the experts' assessment, Peru's results in terms of entrepreneurial activity compared to 54 countries are as follows: Referring to the self-perception towards entrepreneurship is located in position four below Saudi Arabia, Angola and Sudan, in relation to the motivation index for entrepreneurship in position 23, at the level of nascent entrepreneurs position 2, at the level of new entrepreneurs position 19 and at the level of entrepreneurial activity in the early stage position 5 (Langevang, et al., 2015) Despite the high innovative spirit of Peruvians, in recent years there has been a high mortality rate in entrepreneurial activity, 6.2% compared to 5.2% in the region. Consequently, this reality requires us to reinforce the entrepreneurial spirit from the basic educational levels, leading them to enhance their entrepreneurial skills that lead to innovative outlets that are sustained over time.

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In addition to this, the National Educational Project PEN to 2036, within the fourth purpose linked to productivity, states the importance of educating students integrally from early childhood, with the intention that they can realize their life project. Likewise, to prepare them to perform productively, taking advantage of cultural, natural and economic resources in a creative, responsible and sustainable manner.

Therefore, the school curriculum outlines the achievement of the competence that seeks students to manage entrepreneurial projects from the classroom. Hence, they can put into action an innovative idea, using available resources with the intention of solving economic, social and environmental problems (Cabana-Villca, et al., 2013).

Consequently, after an exhaustive analysis of national and international surveys, the experts conclude that it is urgent to improve and strengthen state policies that promote entrepreneurship and optimize business competence. In addition, they propose to the government to support entrepreneurs during the first years of growth of their companies, where there is a greater probability of failure, adapting and making tax and labor regulations more flexible.

For a better understanding, we pose the following guiding questions: How do social entrepreneurship competencies fulfill their transformative mission, how to propose an entrepreneurial education from the four pillars, what are the roles of the educational community in learning to be an entrepreneur, how to build the fifth pillar "learning to be an entrepreneur", and what are the challenges of educational systems to implement and adapt entrepreneurship education to different contexts, which will be analyzed during the presentation of this paper.

When analyzing the favorable conditions for entrepreneurship to take place, the experts of the global monitoring of entrepreneurship within the world education policy suggest integrating entrepreneurship as a cross-cutting competency within the educational curriculum. At the same time, they recommend training the entrepreneurial spirit, creativity and innovation throughout the educational system, providing a methodology that leads to the development of social entrepreneurship competencies, facilitating tools and resources from their environment that promote education for entrepreneurship.

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Results and discussion 1.

The path of education for entrepreneurship from the four pillars.

When talking about entrepreneurship, Bula (2012) indicates that we can find multiple aspects in its conception. Understanding that entrepreneurship will take place within the social and cultural relationship that is directed towards the transformation of ideas into actions (Shapero & Sokel, 1982).

For Timmons (1989), he mentions that entrepreneurship seeks to create and build on something that is of great utility. Above all, it provides the ability to face the risk of failure.

Likewise, Schumpeter (1934), emphasizes that entrepreneurship from the economic point of view is a set of innovative actions that create new products and processes that allow opening the way to new markets, discovering new services and establishing new socioeconomic dynamics.

With regard to competencies, Crisólogo (2008) understands them as a set of complex capabilities, i.e. know-how. They allow acting effectively in different problematic situations for the resolution of any real situation.

On the other hand, Tobón (2010) emphasizes that competencies should be treated from a transdisciplinary perspective, being a flexible and integrative model, since it requires the approach and contribution of different disciplines in order to understand the dimensions of human performance.

Likewise, competencies are assumed as a process of continuous improvement, based on the contribution of different sciences such as philosophy, sociology, linguistics, psychology, etc. What is more, its academic application at educational levels began in the 1990s and already in 2000 it became part of an educational policy of global importance.

Similarly, López (2016), validates that competencies are integrated, being able to articulate, synthesizing and combining knowledge, allowing knowing how to act in the exercise of a profession, as well as developing academic activities.

On the other hand, it enables the identification, interpretation and resolution of problems, updating knowledge to apply them and achieve the objectives, according to personal and group requirements.

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76 Regarding social entrepreneurial competencies, Sáenz & López (2015), describe that a social entrepreneur has the mission to provide answers, being an agent of change with social values, capable of identifying opportunities for the common service. Likewise, he/she is innovative, adaptable, learns and acts despite limited resources. He is highly responsible and puts his personal interest aside for the good of the community.

In relation to this, when referring to a competency, it is observed that it can be learned and improved. Therefore, when undertaking social entrepreneurship within the educational environment, the promotion of development in creative, imaginative, critical, collaborative and proactive aspects is prioritized. (Sáenz & López, 2015; Sánchez, 2013; Taatila, 2010; Arruti & Castro, 2019).

This is how Martínez & Carmona (2009), define entrepreneurial competence as a generator of economic growth projects and integrated social development. It favors the entrepreneurial initiative and the vision of competences. It also allows people to be able to face their personal dimensions, such as autonomy and selfregulation. Social, social and environmental responsibility. And economic, related to business projects.

On the other hand, Sáenz & López (2015), classify social entrepreneurship competencies in four blocks, the first related to the tasks or work to be performed. The second is related to the integration of peers. The third is related to the development of people's capabilities. And finally, philosophical and ethical competencies.

Within the first block are innovation and creativity, since they allow the implementation of new ideas, having a vision with future projection, giving rise to establish opportunities for entrepreneurship. This is how clear goals are set, making appropriate and effective decisions. On the other hand, planning and management ensure organizational capacity, providing creative solutions to problems. It is important to take into account time management, since it distributes time correctly, maximizing results.

In the second block we identify leadership as influencing others, having an effective relationship that leads to teamwork, integrating and collaborating actively. In addition to this, effective communication favors effective listening, as well as motivation allows the development of interest in the work.

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The third block recognizes initiative and proactivity to anticipate the future. Autonomy fights for independence and liberation, adapting and flexibilizing towards new challenges. Thus, tenacity and perseverance will allow overcoming adversities, having the ability to overcome failure. On the other hand, confidence and intrinsic motivation will allow self-esteem. By mastering stress and tolerating uncertainty, tensions and insecurities are controlled. Having the ability to assume responsibilities.

The fourth and last block highlights the code and ethical feeling of the fundamental rules on the protection of their fellow men and the preservation of nature. The reflection of the good towards others. As well as acting according to current needs on critical thinking, questioning capacity and the maintenance of values. The implication of the social reality with the commitment to common development is also highlighted.

In conclusion, the competencies of social entrepreneurship break the traditional teaching scheme by developing in students a vision of the future, leading them to transformation and progress in their living conditions.

From 4 pillars the education into competencies of social entrepreneurship.

the

In order to analyze and propose entrepreneurial development in primary level children, it is required to transform ideas into actions that build attitudes and skills to encourage entrepreneurship, based on social and environmental issues, involving all actors in the educational process (Gómez, et al., 2017).

Entrepreneurship education should provide the tools that promote entrepreneurship. Which provide solutions to possible problems of context and thus lead to future initiatives, being fundamental the formation of a cognitive structure and processes of social interaction thanks to the real and complex situations that are involved.

Various approaches and contexts attempt to operationalize entrepreneurial competencies, alluding to the attitudes, knowledge and skills of people who seek to transform their living conditions. Thus, it is important to understand the criteria that imply a competency. However, the knowledge of an entrepreneurial competency has not yet been identified, so that, depending on the context, some knowledge will be required.

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A first approach is related to knowing how to be, for which we seek to develop proactivity, creativity, self-efficacy, self-confidence, being able to take risks, having self-awareness, being sufficiently tolerant to ambiguity and frustration, as well as always being persevering.

A second approach has to do with knowledge related to the labor world and its socioeconomic movements. At the same time, the management of economic and financial aspects, the application of business processes, recognition of laws in favor of citizens. As well as, diverse tools that allows the evaluation of the opportunity and finally the development of the entrepreneurial role.

Finally, a third approach refers to know-how, in which it is demonstrated that it is possible to solve problems, exploring new opportunities, establishing effective communication and teamwork.

All entrepreneurial educational development is focused on developing theoretical and conceptual content in order to create companies, prioritizing technical and financial content, as well as organizational, production and marketing.

However, from education, the aim is for people to be entrepreneurs from their personal lives, to understand the social dynamism, being visionaries and leaders.

2.

How to approach the fifth pillar "learning to be an entrepreneur" from the educational field

At the beginning, entrepreneurship was purely in the economic field, but over the years it has been extended to the educational scenario. Thus, since 1970, entrepreneurship has been included in the curriculum design of higher education in careers related to administration.

Likewise, within formal education, entrepreneurship is addressed through three approaches; the first one proposes an "education in entrepreneurship" whose function is to provide students with the theoretical and conceptual support, guiding them to the creation of their own companies, empowering them with financial knowledge in the productive field. The second one deals with entrepreneurship education, whose main objective is to provide a set of knowledge and skills that clarify how to become an entrepreneur. Finally, "education for entrepreneurship" is proposed, which develops, improves and expands the first two, enhancing the disposition of the person from their personal

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reality, strengthening their capacities, attitudes and entrepreneurial skills, which will be valuable to face challenges in the different scenarios where they develop, (Gómez, et al., 2017; SoriaBarreto, et al., 2016).

Consequently, the vision of pedagogy for entrepreneurship will be at the personal and collective level. Therefore, it will be essential to strengthen the competencies that allow them to understand the dynamics of society, as well as the economic movement of the context in which they operate.

In countries such as Finland, the United Kingdom, Colombia, Chile, etc., "education for entrepreneurship" is linked to the strengthening of the culture for entrepreneurship, whose aim is to develop various basic competencies in the labor and business field in formal and informal educational contexts. To this end, they foster favorable conditions to create and generate the sustainability of initiatives that favor personal, social and business development (Nugent, 2016).

In addition, these countries have programs for entrepreneurship education, and pedagogical guides have been developed to guide teachers in incorporating entrepreneurship-related teaching into their pedagogical practices.

It is important to note, that the educational curriculum of such countries incorporates specific regulations, ensuring compliance with an education for entrepreneurship, illustrating teachers on what and how to teach, at the same time the recognition of the objectives to be achieved by each level of study and the evaluation of this (Nugent, 2016).

For this reason, characteristics that favor education for entrepreneurship are added, such as the scenarios in which students interact, where the work of the teacher or facilitator will be decisive to generate potentially entrepreneurial experiences. In the same way, in order to activate entrepreneurial ideas and initiatives, they are accompanied by attitudes and skills, with the purpose of guaranteeing and predicting future entrepreneurship.

In accordance with the previous paragraph, entrepreneurial competencies are differentiated as follows: The first, as initial and basic competencies, those that are given in basic education, which serve as a support and base, and the second the specialized entrepreneurial competencies, which are given in university education.

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78 In the findings of studies conducted in various educational centers at the primary level in Europe and Colombia, where education for entrepreneurship is taught, which are nowadays pedagogical referents in the achievement of entrepreneurial competencies, conclude that the entrepreneurial construction occurs in their life trajectory, but their true potential and development occurs in school and family (Gómez, et al.,2017; Hidalgo, et al., 2017).

We can affirm that entrepreneurial competencies are planned intentionally and their construction arises from the knowledge itself, from the knowledge and the experiential practice, i.e. through know-how. For this, it will be necessary to frame it within the educational, cultural, technological, environmental, etc. diversity.

Entrepreneurship education is not something new; it has already been addressed at international level through the European Commission, which differentiates between two concepts: education and business, distinguishing between business initiative and entrepreneurship, although both are interrelated.

In this sense, entrepreneurship alludes to the set of personal qualities and skills required to act in any context such as leadership, self-confidence, motivation, innovation, and resistance to failure, etc. while entrepreneurship corresponds to the generation of self-employment by making use of the aforementioned qualities (Alemany, et al., 2013).

With respect to learning entrepreneurship, it will be necessary to promote the following competencies from the early grades: First, empowering autonomy, where the student will be able to recognize his or her limitations and potential, which will be the basis for building positive self-esteem, key to his or her integral development. In addition, there is a close relationship between self-esteem and success, since people with high self-esteem have a greater capacity to succeed and accept greater risks.

Secondly, leadership within the approach of education for entrepreneurship is intended that the student first develops his inner leadership and his decisions, in order to present it to others.

Indeed, it will be necessary to develop communication skills so that they can effectively negotiate their points of view and affirm their interpersonal and intrapersonal relationships.

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Thirdly, the development of innovation will allow them to move from an education based only on the transmission of content to one that integrates participation, human relations and attitudes. That is to say, to provide an adequate space to enhance their creativity not as a personal or isolated experience, but as a collective, real, palpable experience based on innovation.

Finally, fourthly, entrepreneurial skills are closely linked to the management of human and material resources, leading to decision making, understanding that it will be necessary to appropriate basic financial concepts for the creation of entrepreneurial projects and the management of the family economy in the future.

In this way, it will allow students to put into practice the financial contents in real environments.

As far as learning to undertake is concerned, active methodologies based on projects should be applied, since the initiative and creativity of the teacher will not be enough; it will be essential to appropriate a methodology that stimulates the competence of learning to undertake, through cooperative work that guarantees its effectiveness (Alemany, et al., 2013; Paños, 2017).

Likewise, entrepreneurship education projects should contain a high dose of student intervention during implementation, development and evaluation, which will ensure commitment and thus guarantee the achievement of quality learning.

On the other hand, entrepreneurship projects allow students to get closer to real life, achieving good results in their learning. In short, they allow them to perceive more deeply the context in which they develop, leading them to identify the needs and opportunities to be transformed.

It is also worth mentioning the transferability within the learning to undertake, which will be substantial, since it is considered as a test to nurture their vision as adults at a personal and professional level. At the same time, they will be accompanied at all times by their teachers, with the purpose of producing important fruits in their learning on a small scale, all of which will lead students to creatively transfer what they have learned to diverse situations and new experiences.

Continuing with the analysis, the systematic spiral training is another essential feature within the entrepreneurial knowledge that allows

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teaching the student to become an entrepreneur from a very early age. Hence, it will stimulate entrepreneurial skills, being important to plan initiatives from basic education, the role of the teacher with the appropriate school curriculum and the performance of students of different ages.

So, if we want to optimize learning entrepreneurship, we will have to leave the classroom and bring the wisdom of the outside world, through various experiences such as guided tours, productive experiences, family experiences, etc. However, first we will have to break down the walls of the school with the intention of achieving direct contact with the real and daily life of the local world.

purpose that future teachers demonstrate to be an example for the whole society.

On the other hand, Arruti (2016) states the urgency of implementing various relevant educational actions capable of generating entrepreneurial skills among primary school students.

In addition to this, Del solar (2010) indicates that entrepreneurship is a challenge to the integrity of young people, requiring the strengthening of their ability to overcome adversities, being especially important their personal development, personal skills, and the ability to develop their own skills.

In short, learning to be an entrepreneur seeks to prepare students for an adult life by committing to forge fair and caring people, not only to make them autonomous with initiative but also as a social investment in the future.

Adversities, being especially important their personal development, thinking, attitudinal and value skills. Therefore, the student becomes the protagonist of the whole process of teaching and learning.

In addition, to achieve the fifth pillar "learning to undertake", the committed participation of teachers, students and parents will be fundamental.

Accordingly, an education at an early age will define the foundations that will govern the conduct and good work of students.

Consequently, an entrepreneurial culture at an early age will positively influence their attitudes and the development of their entrepreneurial skills in the long term (Rodríguez, et al., 2014; Sánchez García, et al., 2017).

The European Commission (2014) highlights the passion that entrepreneurial teachers contain for teaching. They are charismatic, open, confident, flexible and extremely responsible. In addition, they practice active listening and take advantage of ideas to transform them into actions.

At the same time, they constantly seek to bridge the gap between education and economics, through the experimentation of real-life cases. At the same time, their work plan is flexible and interdisciplinary, highlighting group interaction, relating the classroom to a conflict scenario, encouraging the exchange of opinions, answers, solutions, reflections, etc.

In this sense, an entrepreneurial teacher is not much of a lecturer, but much of a trainer, being an active participant in the personal construction of competencies in his students. Thus, entrepreneurial learning during initial training should incorporate the development of skills, methods of innovation and entrepreneurship, inspiring students.

For this reason, future teachers must be role models for their students, directing them to develop as active members of a society of constant change and great challenges. Therefore, it is necessary to propose an itinerary with the

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In addition, within the learning to undertake, the entrepreneurship projects will have to count on the complicity of the parents, rescuing their experiences, thus giving them an added value to the preparation of their children. In this sense, family expectations will positively influence the success of the ideal school.

In fact, an enterprising student should through sufficient motivation be able to overcome the objectives proposed during the session, having the predisposition to transform learning into meaningful. In addition, it is important to mention that the enterprising student, not only bases his training on theoretical concepts, but also on attitudes to be able to understand, explain and act appropriately.

In addition to this we can rescue some countries that have successfully implemented entrepreneurship education, such is the case of Finland, Spain, Colombia, etc.

Definitely the education system in Finland has caught the attention of the whole world, thanks to its great international success in the OECD's PISA evaluation, demonstrating high educational

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80 productivity. Likewise, the European Union considers the country as the best in terms of education. (Leinonen, Partanen, & Palviainen, 2004).

At present, Finland is in a moment of development of various jobs and companies called brain sectors, which complement the traditional entrepreneurship. Thus, their students live a real and specialized experience within what the country requires, establishing an education with an entrepreneurial spirit.

In this sense, the use of didactic materials within the sessions is of great importance for the development of entrepreneurial skills. Likewise, companies must be familiar with this thinking, with a view to instilling an entrepreneurial and innovative education within the educational system.

Consequently, the purpose of education in Finland is to be able to export its educational system to the rest of the world, offering diverse solutions for diverse clients and realities.

To achieve the quality of education that Finland has imposed on the world, they have required a lot of national cooperation. All universities responsible for teacher education established and share a national network of educational sciences and teacher education. Thus, its main objective is to establish a program of interaction and exchange of teacher knowledge, which seeks consensus on the components and structure of teacher education. Despite its autonomy, each university starts from this profile to establish the basis of its own curriculum (Valencic & Vogrinc, 2011).

As a result, teaching careers in Finland are highly competitive and highly prestigious for the nation.

Only ten percent of applicants are accepted for further teaching careers. Consideration is given in the teacher education curriculum to the choice of one academic discipline and an accompanying optional discipline. As well as research development on methodological studies.

Pedagogical studies including teaching practice.

Communicative and language development are mandatory. In turn, since 2015 a personal plan study was implemented for effective personal development.

Similarly, the main objective of pedagogical studies in Finland is to create opportunities for learning and pedagogical interaction to develop their own teaching skills. Thus, students should

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achieve collaborative learning with all actors in the teaching-learning process.

Finally, Tarhan, Caraman, Kemppinen & Aerila (2019), highlight that Finnish education reemerged thanks to the positive relationship between social educational policy and the idea about social justice. It is so that the state having as its main objective that the citizenship is provided with an opportunity for prosperity of life.

Therefore, the state inspectors played a fundamental role in monitoring that the schools strictly follow what is established by the educational system and thus regain the trust and respect of their educators. Thus, preparing their students for the challenges that the 21st century demands.

In the same way, Guarnizo, et al., (2017), state that the Colombian state, since 2006, has been concerned about implementing an education that allows children in primary and secondary education to prepare them to face the productive reality through the development of competencies related to entrepreneurship. It can be pointed out that it seeks an education that transcends the economic and encompasses the personal, family, professional and social progress of the student.

In fact, such education in entrepreneurship is stipulated by law, establishing it as an educational policy, articulating it throughout the entire schooling, from the initial, basic and middle levels. To this end, it establishes that educational institutions must select a learning area to include entrepreneurship and business creation as part of the national curriculum. In this sense, the selected area should be complemented with contextualized activities, thus allowing to visualize the work of students in the projects and fairs they participate in, linked to entrepreneurship and entrepreneurship (Guarnizo, et al., 2017).

In turn, in compliance with the provisions of this law, educational institutions designed a new chair or subject of education for entrepreneurship, providing it throughout the school process, with a projection to the creation of enterprises.

In addition, in 2012, after a study and analysis of the definitions of entrepreneurship and entrepreneurship, the Ministry of Education in Colombia published a methodological guide, responsibly assuming the leadership for the implementation of education for

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entrepreneurship.

Thus, it seeks the resignification, which allows the school curriculum to offer an education for entrepreneurship, articulating it to the institutional strategic objectives and the development of competencies, seeking the integral development of students. Thus, it encourages the development of projects that promote the entrepreneurial culture without neglecting the entrepreneurial attitude.

Entrepreneurial culture refers to the set of customs, ideologies, values, norms, etc., which are generated from collective interrelationships establishing an identity with respect to others.

Entrepreneurial attitudes refer to the personal predisposition to generate and transform innovative ideas favoring the growth and consolidation of the life project.

2.

In short, this information can be compared and asserted by observing the efforts of countries of the European Union who are committed to an education that encourages the development of basic competencies, including the development of initiative and entrepreneurship, based on the strengthening of attitudes conducive to generating entrepreneurship, such as: initiative, risk-taking, management of uncertainty, etc., all with the intention that they can face the productive challenges of today's society (Guarnizo, et al., 2017).

Something similar happens in Spain, where education for entrepreneurship is deepened through the formation of different attitudes that dynamize entrepreneurial behavior, implementing it throughout the educational process from primary to secondary school, thus generating an optimal culture of school entrepreneurship.

3.

For a better understanding, it is essential to implement a global educational policy that aims at training for entrepreneurship with a projection to integral development and the construction of a life project in students, beyond providing solutions to current problems.

Conclusions 1.

In order to be able to direct us to a path of entrepreneurship, taking into consideration the four pillars of education, we seek a transformation in the ideas of the students, towards actions that generate personal development. In this sense, it is possible to demonstrate that students are capable of facing the risk of failure, through the

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4.

development of social entrepreneurship competencies. These are the ones that will allow an integral development of individuals at any stage of their lives. Therefore, the entrepreneurial student is an agent of change, having the ability to identify opportunities where others cannot see them.

This competence can be learned or in some cases improved, through a variety of real situations in which the student will develop from basic education to higher education, forming their cognitive structure to provide solutions to contextual problems and future initiatives. In addition, entrepreneurial competencies are directed towards attitudes, knowledge and skills that strengthen and transform their living conditions.

One of the key points of this article is that traditional teaching should be transformed from the perspective of the four pillars of education. This will contribute to the development of both entrepreneurial skills and attitudes. Thus, by mentioning knowing how to be, we are looking for people's proactivity, creativity, self-efficacy and selfconfidence. They must be autonomous, tolerant of ambiguity and frustration. By highlighting knowledge, we look at the world from its socioeconomic interaction in favor of citizens, handling various tools that evaluate the opportunities and the development of the entrepreneur.

Consequently, knowing how to do leads to the solution of various problems, implementing effective communication and teamwork.

The importance of looking at entrepreneurship through education lies in the fact that entrepreneurial students are visionaries, leading their personal lives and understanding social dynamism. In this way, entrepreneurship education provides knowledge, skills and attitudes that will allow them to become entrepreneurs. Thus, education for entrepreneurship will take place in the personal and collective sphere, and it is essential to develop the competencies that will allow them to provide solutions to individual and social problems.

Therefore, the teacher's work at this stage is decisive to generate those entrepreneurial skills that students require so much and that should be framed in their educational, cultural, social and environmental activities.

Within the roles of education to achieve entrepreneurship and reach the so desired fifth pillar "learning to undertake", the active participation of parents will be required, since rescuing their experiences will

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5.

6.

strengthen the preparation of their children and thus influence the success and construction of an ideal school. Definitely, the enterprising student, through the necessary motivation, will have the capacity to overcome any proposed obstacle, having the predisposition to generate significant learning. Consequently, an enterprising student is not only theoretical, but also develops attitudes that are able to understand, explain and act appropriately in their social environment.

In recent years, the success of several countries, such as Finland, Spain, Colombia, etc., has been observed, achieving a globally recognized entrepreneurial education system. Likewise, they have created and implemented a variety of didactic tools, strengthening the competencies of social entrepreneurship as a transversal line in the school curriculum. This is a great example of disciplined work and mutual support for the benefit of all involved, and therefore the global community.

This is why the experts of the global monitoring of entrepreneurship, within the global education policy, when analyzing the ecosystems and favorable conditions for entrepreneurship to take place, suggest integrating it as a cross-cutting competency in the educational curriculum. Accordingly, they suggest training the entrepreneurial spirit throughout schooling, from basic education to higher education. In addition, they suggest prioritizing the use of methodological tools, through active pedagogy, to promote the development of social entrepreneurship competencies.

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Hidalgo, L., Trelles, I., Castro, A., & Loor, B. (2017). Formación en emprendimiento en el Ecuador. Pertinencia y fundamentación epistemológica. Revista espacios, 39 (7), 12. http://www.revistaespacios.com/a18v39n07/ a18v39n07p12.pdf Lederman, D., Messina, J., Pienknagura, S., & Rigolini, J. (2014). El emprendimiento en América latina. Muchas empresas y poca innovación. Washington: EEUU: Banco mundial sobre América latín y el caribe. https://www.worldbank.org/content/dam/Wo rldbank/document/LAC/EmprendimientoAm ricaLatina_resumen.pdf Leinonen, N., Partanen, J. & Palviainen, P. (2004). Team Academy: a true story of a community that learns by doing. PSkustannus. ISBN 9524511037 López, E. (2016). En torno al concepto de competencia: Un análisis de fuentes Profesorado. Revista de Currículum y Formación de Profesorado, (20), 311-322.

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DOI: https://doi.org/10.34069/AI/2021.44.08.8 How to Cite: Novikov, S.V., & Tikhonov, G.V. (2021). Development of small innovative business in the Russian economy. Amazonia Investiga, 10(44), 84-91. https://doi.org/10.34069/AI/2021.44.08.8

Development of small innovative business in the Russian economy Развитие Малого Инновационного Бизнеса в Российской Экономике Received: July 1, 2021

Accepted: August 20, 2021

Written by: Sergey V. Novikov34 https://www.scopus.com/authid/detail.uri?authorId=57192318711 https://www.elibrary.ru/author_profile.asp?id=807011 https://orcid.org/0000-0001-6921-1760 Gennady V. Tikhonov35 https://www.scopus.com/authid/detail.uri?authorId=57214331423 https://www.elibrary.ru/author_profile.asp?id=451586 https://orcid.org/0000-0001-8502-0235 Abstract

Аннотация

The article is devoted to small entrepreneurship in the scientific and technical sphere, despite the recognition of its right to state support, it has a significant difference from scientific and technical and the so-called earlier implementation activities characteristic of the period preceding economic reforms. A significant place in the article is given to the development of mathematical modeling in the system of innovative entrepreneurship in modern crisis conditions. Adaptability and flexibility are considered as the most important indicators of the efficiency of structures, their ability to ensure sustainable operation and effective innovative development of small businesses. The issues of scientific, technical and innovative activities in small business and in the public sector of the economy on the conjugation of adaptability and flexibility are considered. A number of modern techniques related to the development of mathematical modeling of the development of small enterprises in innovative activities in a crisis are analyzed. The necessity of mathematical modeling as the main factor in the implementation of financial support for small business in innovation, for which conventional methods are unacceptable, has been substantiated. The proposed approach should be considered as a guideline when assessing the mechanism for allocating funds from the budget for the development of small business in innovation.

Статья посвящена малому предпринимательству в научно-технической сфере, несмотря на признание его права на государственную поддержку, имеет существенное отличие от научнотехнической и так называемой ранее внедренческой деятельности, характерных для периода, предшествовавшего экономическим реформам. Значительное место в статье уделено разработке математического моделирования в системе инновационного предпринимательства в современных кризисных условиях. Адаптивность и гибкость рассматриваются в качестве наиболее важных показателей эффективности структур, их способности обеспечивать устойчивое функционирование и эффективное инновационное развитие малых предприятий. Рассмотрены вопросы научно-технической и инновационной деятельности как в малом предпринимательстве, так и в государственном секторе экономики о сопряжении адаптивности и гибкости. Проанализирован ряд современных методик, связанных с разработкой математического моделирования развития малых предприятий в инновационной деятельности в условиях кризиса. Обоснована необходимость проведения математического моделирования как основного фактора реализации финансовой поддержки малого

34 35

PhD in Econimic Sciences, Associate Professor, Moscow Aviation Institute (National Research University), Moscow, Russia.

PhD in Econimic Sciences, Associate Professor, Moscow Aviation Institute (National Research University), Moscow, Russia.

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Keywords: innovation, entrepreneurship, adaptability, infrastructure, R&D, regions, technology, mathematical modeling, corporation, budget funds.

предпринимательства в инновации, для которого обычные методики неприемлемы. Предложенный подход должен рассматриваться в качестве ориентира при оценке механизма распределения средств из бюджета на развитие малого бизнеса в инновации. Ключевые слова: инновация, предпринимательство, адаптивность, инфраструктура, НИОКР, регионы, технология, математическое моделирование, корпорация, бюджетные средства.

Introduction Small organizations and small caps are more mobile, with a strong focus on innovation and customer orientation and are willing to take risks.

Also, small organizations are engaged in technological innovation in areas that seem unexpected or too risky for large companies.

Small organizations have a quick adaptation to the market, thanks to constant contact with customers and business owners are constantly aware of all market changes. In addition, the specificity of implementation activities implies a lot of labor-intensive manual operations, suspension of production facilities, underemployment of staff, combination of highly skilled and unskilled labor, i.e. what small firms are more suited to (Tikhonov, 2019). Mobility and flexibility of the transition to innovations, small management staff, simple organizational ties, high qualification of staff, maximum concentration on solving the task, high sensitivity to fundamental innovations, use of disadvantageous areas of production for large enterprises and taking into account local conditions constitutes the advantages of small business before large one and allows often overtaking more powerful competitors in scientific and technical competition. In many countries, small business frees large enterprises from producing small-scale and unique products.

They act as pioneers of market niches, which are then filled by large corporations, reduce the risk of scientific and technical research and production of a new product (Tslaf, 2012; Amorós et al., 2019).

That is why in some countries the share of small and medium-sized firms in the total number of enterprises reaches 98% of the total industrial production (Shamina, 2008; Schot and Steinmueller, 2018). Small business ensures the development of competition. As world experience shows, it quickly reacts to changes in

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consumer demand in the market and its saturation with a wide range of goods; it allows taking into account local characteristics and traditions of the population of a given region when organizing production and also creates additional jobs.

Small and medium-sized enterprises in foreign countries are actively involved in the implementation of scientific and technical programs, as well as in inter-firm alliances.

In a natural course of events, small innovative business was brought to the forefront of scientific and technological progress, and where the risk and uncertainty of results were maximum.

However, even in this case, consuming only 25% of the total expenditure on R&D, small business in the USA and Western Europe created and still creates up to 50% of the largest innovations sold on the world market (Damyanova, 2013; Agapie et al., 2018).

In Russia, small innovative business did not become widespread, since it did not fit into the administrative system of managing the national economy.

Small business does not set the goal of solving federal problems, but directs its efforts and resources to problems of a local and private nature, which are “invisible” for federal government bodies.

Despite the existing significant difference, scientific, technical and innovative activities in small business and in public sector of the economy are closely related, they complement and enrich each other (Balashevich and Bykova, 2012; Burdina et al., 2020).

State support for scientific, technical and innovative activities today provides for

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86 assistance in solving this issue by providing subsidies and subventions for small and mediumsized businesses in innovative activities.

Regional and municipal authorities are also concerned about the problem of attracting investment in innovative projects.

For the work of today's business representatives in the field of innovative development, state support for scientific, technical and innovative activities is insufficient. It is necessary to form new approaches and methods that would support innovative small businesses. The purpose of this article is the proposed mathematical modeling of the implementation of financial support for small businesses in innovation, for which conventional methods are unacceptable.

Theoretical Basis Scientific and technical developments and innovations act as an intermediate result of the scientific and production cycle and, as they are practically applied, they turn into scientific and technical innovations: the final result.

Research and production cycle is the process of creating, mastering and disseminating a specific innovation. The cycle of innovations is closed, since production is not only the arena for the application of scientific knowledge, but also the most important source of information for their development.

Scientific and technical developments and inventions are the application of new knowledge for the purpose of its practical application, and scientific and technical innovations are the materialization of new ideas and knowledge, discoveries, inventions and scientific and technical developments in the production process with the aim of their commercial implementation to meet certain consumer needs. The indispensable properties of innovation are scientific and technical novelty and industrial applicability.

Based on the area in which changes are being made, it is possible to distinguish product, technological and organizational and managerial innovations (Figure 1).

Figure 1. Areas of implementation change innovation (Source: authors) Product innovation is associated with changes made to products manufactuder in the field of material production and consumed as means of

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production or consumer goods. Technological innovations involve changes in technology (methods) of creation, production and

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consumption of manufactured or new products.

Organizational and managerial ones are associated with the introduction of new methods of organizing any systems and managing them.

In terms of the degree of novelty, radical and imitation innovations are distinguished. These concepts are associated with the theory of cyclical development and imply innovations of a revolutionary type, implementing large inventions or their clusters, and of an evolutionary type that arise within existing technological systems (Valdaitsev, 2013).

Methodology This is especially evident today: most of the current small business entities and small firms that, according to the legislation, cannot be classified as these entities, was formed in the depths of large and medium-sized scientific organizations, higher educational institutions and industrial enterprises. Having gained legal independence, they often do not interrupt the connecting threads with their "parents" and in many cases are actually their subsidiaries (Burdina and Bondarenko, 2020).

In turn, large and medium-sized organizations and enterprises, due to this process, received real opportunities for the practical implementation (often in rather unexpected areas and spheres of application) of those of their scientific and technical developments and groundwork that were not previously in demand and were without movement.

Thus, in the context of the transition to a market economy, the development of scientific, technical and innovative activities, as one of the priority areas of small business, is an important strategic tool of the state to overcome the crisis and stabilize the economy.

efforts of federal and territorial authorities with a clear division of their functions and responsibilities.

For the federal level of government, the central task is to preserve the state's resource support for the core of fundamental science, to involve it in solving global problems of scientific and technological development of the country, to ensure national technological security in the future and to preserve a single scientific, technical and information space throughout Russia and its international scientific connections. For the regional level of management, the priority is the task of forming a local order for scientific, technical and innovative activities and creating conditions for the implementation of the results obtained from it through the mechanisms of a market economy (Pinkovetskaia et al., 2020a; Pinkovetskaia et al., 2020b).

The development of scientific, technical and innovative activities in Russian regions and the organizational elements of its infrastructure that have developed in them have serious shortcomings.

For the most part, this activity is still focused mainly on large and medium-sized scientific organizations, higher educational institutions and industrial enterprises. The share of small businesses in its implementation is still clearly insufficient.

State support for scientific, technical and innovative activities is of a departmental nature, and at present, its purposeful, mutually agreed implementation in the interests of supporting small business has not yet been achieved.

It is very important for the regions of the Russian Federation, since it is connected with the objective needs of solving their economic, environmental and social problems and shifting the center of gravity on many problems of socioeconomic development to the localities, such as providing the population with food, health care, housing and communal services, etc.

In many regions, organizational and economic conditions have not yet been created that would favor the implementation of scientific, technical and innovative activities and stimulate its development in the field of small business. The formed infrastructure of scientific, technical and innovation activities is still not complex in nature, since its organizational elements do not cover a significant part of those functions, the implementation of which determines success in a market economy (Dmitriev and Novikov, 2021).

Due to limited resources, the solution of these problems is possible only under the condition of maximum involvement of all (state and nonstate) scientific, technical and innovation potentials available in the regions of Russia. It makes it necessary to unite and coordinate the

The organizational elements of the infrastructure are distributed very unevenly across the territory of Russia, and their total number is clearly insufficient. They are almost completely absent in more than a quarter of the constituent entities of the Federation, and in the overwhelming

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88 majority of republics, territories, regions, autonomous formations they exist in the form of one, maximum two or three separate specialized organizations.

The material and technical base of the organizational elements of the infrastructure, especially in terms of production areas and equipment that could be provided for R&D and the implementation of innovative projects, is usually poorly developed and does not meet modern requirements.

Both at the regional and federal levels of government there is no clear picture and precise knowledge about the quality of the organizational elements of the infrastructure, their systematic assessment and analysis are not carried out (Semenov, 2003).

The proposed mathematical modeling of the implementation of financial support for small businesses in innovation, for which the usual methods are unacceptable (Semyonov and Pecherskikh, 2011).

In the business world, mathematical models provide optimal budget allocation among small businesses that are focused on innovation, using fast programming. Fast programming method is based on the principles of optimal allocation of funds from the budget.

The proposed mathematical model will allow small business to develop effectively.

Support of small businesses by the state through their financing is one of the important instruments of state influence on the system as a whole. Small enterprises are an echelon of economic dynamics and one of the main tasks of innovative entrepreneurship is financial assistance to small enterprises specializing in innovation (Tikhonov and Grachev, 2013).

One of the types of financial assistance can be tax incentives for small businesses operating in innovation:   

amount of the monthly loan repayment (principal debt) is expensed; value added tax (20% from sale of services); property tax (2.2% of property value).

In connection with the limited budgetary financing of innovation centers, the question of the efficiency of allocation of budgetary funds to regions and further to centers and small enterprises constantly arises (Tikhonov, 2015).

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To optimize the model under consideration, a mathematical model of financial support for new economic structures and small enterprises operating in innovation was developed (Tebetkin, 2013). The versatility of the approach used allows, in principle, to apply it to improve the efficiency of support for small businesses and in other socially significant sectors. We consider the basic principles of constructing a mathematical model of financial support for small business.

The problem of optimal distribution of budgetary funds between small businesses can be solved by the method of dynamic programming. The fast programming method is based on the principle of the maximum solution regardless of the initial state of the value of the parameter X1 and also the solution of the value of U1, provided that each solution subsequent to U1 must be maximum in comparison with the value of X2 resulting from the solution of the value of U2.

This principle is valid for a wide range of systems, the future behavior of which is completely determined by their state in the present.

The mathematical notation of the optimality principle leads to a certain class of functional equations, which, in particular, can have the following form corresponding to the problem under consideration: f(x) = max [g(Xn)+f (X-Xn)]

(1)

0 < Xn < X, where Х is the amount of resource to be allocated; f(X) and g(X) are the nonlinear utility functions; Xn is the solution of the functional equation for a fixed Х.

In the general multidimensional case, equations of type (1) describe the problem of efficient use of limited amounts of resources of various types.

The problem under consideration is reduced to the simplest one-dimensional case yet: efficient use of one resource (total amount of financing F), distributed between n small business. If F1 is the amount of funding allocated for the first small business, then the function D1(F1) characterizes the corresponding level of educational, innovative or scientific and technical activities.

Denoting by D (F1, F2 ........ Fn) the total level of activity, which is obtained for a certain distribution of funding (F1, F2 ........ Fn), the distribution problem can be reduced to

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determining the maximum of functions n variables.

D(F1,F2........Fn)=D1(F1)+D2(F2)+....... +Dn(Fn) (2)

fn(0)=0, n=1,2...

(4)

The considered simplification can in any case be provided by subtracting from the function Di of initial values Di (0).

with limitations B. For any nonnegative F, there is the quite obvious condition:

F1+F2+ .....+Fn = F, Fi ≥ 0.

It follows from (2) that the function D (F1, F2 ........ Fn) as an optimality criterion has the following two properties: A. The level of activity of each small business does not depend on the amount of funding from other small business; B. The general level of activity is equal to the sum of the levels of activity of all small businesses.

When using the method of functional equations to maximize (2), the problem seems to be immersed in a certain family of budget allocation processes. In this case, instead of considering one problem with a given amount of funding and a fixed number of small businesses, a whole family of such problems is considered, in which F can take any positive, and n can take any whole problems.

The distribution of budgetary funds, which at first is perceived as a statistical process, in dynamic programming is artificially deployed in time. First, a certain amount of funds is allocated to the i-th small business, at the next moment of time (i + 1)-th, etc. This introduces a dynamic distribution process.

fi(F) = Di(F).

(5)

Recurrence relation connecting fn(F) and fn-1(F) for arbitrary n and F can be obtained from the following considerations. We denote by Fn (0 ≤ Fn ≤ F) the amount of funds allocated for the nth small business. In this case, regardless of the value Fn, remaining funds F-Fn should be used in such a way as to obtain the maximum level of activity of the remaining (n-1) small business.

Since this maximum level from the distribution of funds F-Fn of (n-1) small business, there is fn1(F-Fn), the selection Fn for n-th small business leads to an overall result equal to Dn(Fn) + fn-1(F-Fn).

(6)

for the model n small business.

Therefore, the optimal choice of Fn is that it maximizes function (6). The main functional equation for the distribution of funds is obtained in the following form: fn(F) = max [Dn(Fn)+fn-1(F-Fn)],

(7)

0 ≤ Fn ≤ F, where n =2,3,......, F >> 0, and fi (F) = Di(F).

Analytically considering that the maximum of the function D (F1, F2 ........ Fn) in the indicated region depends on F and n, it is possible to make this dependence explicit, setting F ≥ 0, as follows: fn(F) = max D (F1, F2........Fn),

(3)

where {Fi} are the sets of n elements belonging to the set given by the constraints Fi ≥ 0 and F1+F2+ .....+Fn = F. Function fn(F) expresses the maximum result obtained from the optimal distribution of funds F about n small business. For two special cases, the elements of the sequence {fn(F)} have a simpler form. А. If Di (0) = 0 for any i, then, obviously, there is the condition:

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Results If we consider the problem of allocating budget funds as a problem of maximizing a function of n variables, then relation (7) allows transferring this n-dimensional extreme problem to solving n one-dimensional extreme problems. The dynamic programming method, in contrast to the classical method for solving extreme problems, allows one to find extreme values also in those cases when the optimum is on the boundary of the region on which the function under study is specified.

Since the implementation of the dynamic programming method naturally breaks down into a preliminary stage of cumbersome calculations and a repeated optimization stage for various amounts of funding, the above algorithm consists of two corresponding parts, and the second stage

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90 is presented in the form of procedures for direct or automated enumeration of options. In addition, the presented program makes it possible to apply the dynamic programming method not only based on activity functions, but also on activity functions.

In general, the results obtained correspond to the limiting possibilities of budgetary financing of research works (in the case of management by activity) and should be considered as a standard in assessing the real mechanisms of allocation of budgetary funds (in management by activity).

scientific progress, technical and economic potential (Novikov, 2019).

In the Russian economy, innovation policy should include all components of the market. In conditions of limited financial resources, it must be based on implementation in a limited environment, which is a very memorable innovative project, which is being implemented there by a promising chime. In this direction, it is necessary to focus on the primacy of Russian science in the field of technical technology, the threshold values for the implementation time should be within 2-5 years (Amorós et al., 2019).

Discussion Russia should develop its own strategy for enhancing innovation, which would rely on the country's intellectual potential and scientific and technical resources. Analysis of innovation strategies shows that the “transfer” strategy can be implemented only in the areas where there is no own scientific and technical potential, or is available on a limited scale, since, on the one hand, the acquisition of know-how and licenses requires significant financial costs, and on the other hand, the know-how and licenses for the production of high-performance products or high technologies will not be sold to another country, which has significant scientific, technical and production potential, in order to exclude competition.

Elements of the “borrowing” strategy can be used more actively, in which joint ventures are organized to produce competitive products in Russia with their sale in Russia and on the foreign market using those economic niches in which the joint production partner already sells such products. Such processes have already begun in the field of joint (or at the order of individual Western firms) production of elements of electronic equipment, assembly of complex household electronic equipment.

These industries will allow, on the one hand, maintaining the existing production potential, providing employment and further developing their own innovative projects. With this strategy, the development of the small business sector in the innovation sphere will play a great role, since one of the advantages of small businesses is their functioning in large industries to ensure a quick changeover of technologies for the production of products required for the main production.

The policy of "building up" small business in innovation in the state can also be implemented during the heyday of the types of products of the machine-building complex, in which there is

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The need to provide a guarantor of state funding is, on the one hand, for the government to issue an order on a competitive basis, but at the same time it is the participation of investors on the other hand.

Conclusion Small organizations, small capitals quickly react to changes in the market, to its demand, to its supply. Lack of "bureaucracy" in small business, this sector knows how to take risks in innovations, which for large enterprises is risky and not very promising. With all this, small businesses have contacts with customers for the sale of products and they are also informed about changes in market demand. In addition, the specificity of implementation activities implies a lot of labor-intensive manual operations, suspension of production facilities, underemployment of staff, a combination of highly skilled and unskilled labor, i.e. what small firms are more suited to. Mobility and flexibility of the transition to innovations, small management staff, simple organizational ties, high qualification of staff, maximum concentration on solving the problem, high susceptibility to fundamental innovations, use of disadvantageous areas of production for large enterprises and taking into account local conditions: all these constitute the advantages of an infrastructure element - “Innovative technological center” and allows it to often overtake more powerful competitors in scientific and technical competition. Such centers act as pioneers of market niches, which are then filled by large corporations, and reduce the risk of scientific and technical research and the production of a new product.

Bibliographic references Agapie, A., Vizitiu, C., Cristache, S. E., Năstase, M., Crăciun, L., and Molănescu, A. G.

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Amorós, J. E., Poblete, C., and Mandakovic, V. (2019). R&D transfer, policy and innovative ambitious entrepreneurship: evidence from Latin American countries. The Journal of Technology Transfer, 44(5), 1396-1415.

Balashevich, M. I., and Bykova, T. P. (2012).

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Burdina, A. A., and Bondarenko, A. V. (2020).

Assessing the Strategic Efficiency of Aviation Projects. Russian Engineering Research, 40(5), 439–441 Burdina, A. A., Moskvicheva, N. V., and Burdin, S. S. (2020). Modernization of High-Tech Products with Strategic-Risk Assessment.

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Damyanova, L. T. (2013). The experience of European countries in creating a new type of universities. Creative economy, 12(84), 95-101.

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Simulation in Managing an Enterprise’s Stock of Equipment and Parts. Russian Engineering Research, 41(1), 76-78.

Dmitriev, O., & Novikov, S. (2019). Concept of organization and functioning of integrated electronic infosphere of reporting on R & D works’ results. Amazonia Investiga, 8(21), 87-95.

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Pinkovetskaia, I. S., Arbeláez-Campillo, D. F., Rojas-Bahamón, M. J., and Veas Iniesta, D. S. (2020a). Motivation of new entrepreneurs in modern economies. Amazonia Investiga, 9(29), 368-373. https://amazoniainvestiga.info/index.php/am azonia/article/view/1403 Pinkovetskaia, I., Arbeláez-Campillo, D., Rojas-Bahamón, M., Novikov, S., and Veas Iniesta, D. (2020b). Social values of entrepreneurship in modern countries.

Amazonia Investiga, 9(28), 6-13. https://amazoniainvestiga.info/index.php/am azonia/article/view/1276 Schot, J., and Steinmueller, W. E. (2018). Three frames for innovation policy: R&D, systems of innovation and transformative change.

Research Policy, 47(9), 1554-1567.

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Kemerovo: Kemerovo Technological Institute of Food Industry.

Shamina, L. K. (2008). Theoretical aspects of the functioning of innovation processes. St. Petersburg: Science.

Tebetkin, A. V. (2013). Innovation management: Textbook for bachelors. Moscow: Yurayt.

Tikhonov, G. V. (2015). Basic approaches to small business lending methods. Bulletin of the Moscow Institute of Electronics and Mathematics, 202-206.

Tikhonov, G. V. (2019). Operational Production Management Model of Competitive Products in Mechanical Engineering. TEM Journal, 8(4), 1137-1142.

Tikhonov, G. V., and Grachev, N. N. (2013).

Methodology for lending to microenterprises as an echelon of economic dynamics in modern conditions. Innovative information technology, 4(2), 281-284.

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Musychenko, O., Streltsov, Y., Kozachenko, O., Vasyliaka, O., Chornozub, L. / Volume 10 - Issue 44: 92-102 / August, 2021

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DOI: https://doi.org/10.34069/AI/2021.44.08.9 How to Cite: Musychenko, O., Streltsov, Y., Kozachenko, O., Vasyliaka, O., & Chornozub, L. (2021). Intelligibility of a criminal law: Theoretical and practical aspects. Amazonia Investiga, 10(44), 92-102. https://doi.org/10.34069/AI/2021.44.08.9

Intelligibility of a criminal law: Theoretical and practical aspects Зрозумілість кримінального закону: теоретичні та практичні аспекти Received: May 12, 2021

Accepted: July 29, 2021

Written by: Olha Musychenko36 https://orcid.org/0000-0001-6171-710X Yevgen Streltsov37 https://orcid.org/0000-0001-8156-0285 Oleksandr Kozachenko38 https://orcid.org/0000-0002-8412-8639 Olesya Vasyliaka39 https://orcid.org/0000-0002-1280-2743 Larysa Chornozub40 https://orcid.org/0000-0002-2819-9192 Abstract

Анотація

The main task of the article is to study a separate qualitative property criminal law its intelligibility. When solving the problem the definition of intelligibility of the criminal law taking into account genesis is formulated this concept and different approaches to its content, which have developed in modern law doctrine. In order to substantiate the author's approach to the definition of intelligibility of the criminal law the monitoring of normative-legal acts, decisions of national and international judicial authorities is carried out.

It is shown that the term ‘intelligibility of law’ and related terms ‘clear’, ‘precise’, ‘simple’ law are actively used both in regulations and in decisions of national and international judicial authorities. However, the terminology is diverse, thereby it has been suggested in the decisions of the European Court of Human Rights to use the term ‘intelligibility’of the law, which is the most accurate and adequately reflects the assessment of the legal certainty of national laws.

The general conclusion is substantiated that in modern doctrine there are three approaches to

Основним завданням статті є дослідження окремої якісної властивості кримінального закону – його зрозумілості. При вирішенні поставленого завдання сформульована дефініція зрозумілості кримінального закону з урахуванням генезису даного поняття та різних підходів щодо його змісту, які склалися в сучасній правовій доктрині. З метою обґрунтування авторського підходу до дефініції зрозумілості кримінального закону здійснений моніторинг нормативно-правових актів, рішень національних та міжнародних судових органів. Показано, що термін «зрозумілість закону» та суміжні з ним терміни «чіткий», «точний», «простий» закон активно використовуються як в нормативно-правових актах, так і в рішеннях національних та міжнародних судових органів, що пов’язано з великою увагою до правової визначеності як складової верховенства права. Однак, термінологія є різноманітною, у зв’язку з чим запропоновано в рішеннях Європейського суду з прав людини використовувати термін

36

PhD, Senior Lecturer of the Department of Criminal Law and other criminal and legal studies of the Mykolaiv Institute of Law National University «Odessa Academy of Law» (Mykolaiv, Ukraine).

37 Doctor of Law, Doctor of Theology, Professor, Corresponding Member of the National Academy of Legal Sciences of Ukraine, Honored Scientific Worker of Ukraine, Head of the Criminal Law Department at National University “Odessa Law Academy” (Odessa, Ukraine).

38 Doctor of Law, Professor, Head of the Department of Criminal Law and other criminal and legal studies of the Mykolaiv Institute of Law National University «Odessa Academy of Law» (Mykolaiv, Ukraine).

39 Candidate of Law, Associate Professor of the Department of Criminal Law and other criminal and legal studies of the Mykolaiv Institute of Law National University «Odessa Academy of Law» (Mykolaiv, Ukraine).

40 Candidate of Law, Associate Professor of the Department of Criminal Law and other criminal and legal studies of the Mykolaiv Institute of Law National University «Odessa Academy of Law» (Mykolaiv, Ukraine).

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determining the legal nature of the intelligibility of the law: as a component of the rule of law, as a requirement for the language of law, as a qualitative property of law. The absence of antagonistic features in each of the approaches allowed to use the positive gains of different perceptions of the intelligibility of the criminal law and to define it.

Key word: legal certainty, intelligibility of law, intelligibility of a criminal law, clear law, precise law, simple law.

«зрозумілість» закону, який змістовно є найбільш точним, і таким, який адекватно відображає оцінку реалізації правової визначеності національних законів. Обґрунтовано узагальнюючий висновок, що у сучасній доктрині виділяється три підходи щодо визначення правової природи зрозумілості закону: як складова принципу верховенства права, як вимога до мови закону, як якісна властивість закону. Відсутність антагоністичних ознак у кожного з підходів дозволила використати позитивні надбання різного сприйняття зрозумілості кримінального закону і надати її дефініцію. Ключові слова: правова визначеність, зрозумілість закону, зрозумілість кримінального закону, чіткий закон, точний закон, простий закон.

Introduction Problems related to the study of the essential and applied properties of legal acts are gaining special importance in the twenty-first century, and in many countries around the world. And this is due not only to the further active development of legislation, increasing the amount of legal material through the efforts of states to regulate as much as possible public relations, but also the awareness of the need to comply with their quality. It is high-quality legal acts that can fully solve the tasks set before them and influence public relations in a useful direction for civil society, that is to ensure the effectiveness of legal regulation. Since one of the main purposes of criminal law is to prevent the commission of criminal offenses by a particular person and by all persons subject to criminal law prohibitions, the criminal law must be (set out and drafted) so that it can be perceived, understood and to understand all citizens who are carriers of criminal capacity. This raises the question of the intelligibility of the criminal law, which provides for the possibility of applying the strictest of all legal - criminal law measures.

Thus, the purpose of the article is to study the intelligibility of criminal law as its separate qualitative property and analyze regulations, decisions of national and international judicial bodies in terms of intelligibility of law.

Literature Review The approach to determining the intelligibility of criminal law is based on the cultural and anthropological dimension of criminal law (Kozachenko and Musychenko, 2015). The

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reference of the legislation first of all determines high standards for the quality of criminal law, providing it with such properties that will promote its full ‘assimilation’ by individuals, and thus it will be able to maximize the preventive effect.

The question of the intelligibility of the criminal law was not directly considered in science, although this problem was touched upon by scientists who studied the problems of the criminal law, its properties and features (Shargorodskii, 1948; Romanov, 2015), the hermeneutics of the criminal law (Zaginej, 2015; Pycheva, 2006). Recently, the publications of theorists and practitioners have become more frequent, in which attempts are made to find out how the intelligibility of the law relates to the related concepts of intelligibility, accuracy, simplicity, accessibility (Caussignac, 2005; Boyd, 2015), because sometimes they all like will be shown later in the article, in practice are considered as single-order, and there is no established definition of not only the intelligibility of the criminal law, but also the law in general.

Since the concept of ‘intelligibility of a criminal law’ is closely related to the category of ‘understanding’, which has a complex nature, the theoretical basis for its study were works not only in the field of criminal law but also work on the hermeneutics of law (Dudash, 2010; Dudchenko, 2014; Ovchinnikov, 2002) of psycholinguistics (Vekker, 1998; Ovsienko, 2013).

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94 Methodology During the writing of the article, general scientific and special methods of cognition of legal phenomena were used. In order to achieve this goal, the authors used the following methods of scientific knowledge: historical, comparative law, logical-semantic and logical-legal.

The historical method was used in the analysis of the historical aspect of the approach to the intelligibility of the law; comparative law when comparing the terminology used in laws and other regulations of different countries; logicalsemantic and logical-legal method was used to conduct an in-depth study and formulation of the author's concept of intelligibility of a criminal law.

Results and discussion Historical aspect of the intelligibility of the law The intelligibility of the laws was discussed in Roman law: ‘this inviolable law it must be made clear to all people so that it becomes clear to them how significant confusion and absolute uncertainty to what moderation and in accordance with the laws the truth they came’ (paragraph 13, III Constitution ‘Tanta’ Digests of Justinian on the compilation digests), ‘laws, being clear and understandable, easily penetrate the soul’ (paragraph 2, II Constitution ‘Omnem’ Digests of Justinian on the compilation of digests) (Kophanov, 2008).

Historical analysis shows that intelligibility of laws has not always been considered as a defining qualitative, inherent in the law characteristic, so we can point to two approaches that have developed in science. The first is that there is intelligibility of laws their necessary property must be ensured by accuracy, simplicity in them writing, because the state has the right only then to demand compliance by citizens prescriptions when they are intelligible to them.

Within the second direction of understanding to intelligibility is approached as a declarative characteristic because of the intelligibility of the law it is impossible to achieve due to the subjective peculiarities of comprehension of the content of the text of the law by all citizens.

The doctrinal principles of the study of the intelligibility of criminal law in a positive aspect can be found in ancient thinkers who paid considerable attention to the characteristics of the law. His contribution to the development of rules for constructing laws, among which considerable

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attention was paid to intelligibility, made by philosophers, lawyers who operated in the sixteenth-eighteenth centuries. Thus, the justice of the law utopian T. Mor associated with its simplicity and comprehensibility for citizens (Mor, 1935), Ch. Bekaria in the work ‘On Crimes and Punishments’ (1764) sharply spoke about the need to comply with the ‘letter of the law’, he believed that no nothing more dangerous than to act in the spirit of the law, was a supporter of strict observance of the law without any derogations (Beccaria, 2004), Sh. Montesquieu stressed the importance of quality laws aimed at protecting the most important values - life, honor, property (Montesquieu, 1956), indicating to the increased attention to intelligibility of the criminal law.

The existence of such categorical statements about the need to follow the exact ‘letter’ of the law is a consequence of the fact that in the field of criminal law at that time there was a certain legal uncertainty, which gave rise to oppression of citizens, state and legal voluntarism. This was the impetus for the formation of new, sometimes quite radical views on the properties of written law.

Many of the provisions in the works of these thinkers formed the basis for the formation of knowledge in a particular area - the legislative technique. The work of ancient philosophers, who linked the clear presentation of norms with the accuracy, simplicity, accessibility of their language, continued to be detailed by theorists within a particular area of law - legal linguistics, and scholars who studied the legal technique of criminal law and hermeneutics of this legal act.

In contrast to this widespread, long-established approach, German legal doctrine in the nineteenth century somewhat refuted the postulate that laws should be understandable to all citizens, and argued that ordinary citizens would not be able to understand the legal text because and law enforcement requires legal education. R. von Yeering, who insisted on the simplification of law, at the same time argued that to understand it, you need ‘a peculiar ability to perceive, a special art of abstract thinking, legal intuition and imagination’, ‘skill in dealing with legal concepts’ (Iering, 2008), and F.K. von Savigny pointed out that in order to fully understand the content of a law, we must identify the grammatical rules used by the legislator, the logical connection between the individual parts of the law, understand what was added to the law by this law, and find out how the law relates to the whole legal system and how it should be

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effectively combined with it (Savigny, 2011).

Even today, there are still supporters of this approach among theorists (for example, Kolmakova, 2009; Assy, 2011) and representatives of the theory of criminal law, who consider unattainable and imaginary clarity and accessibility of the law, and its understanding should be provided not by increasing the requirements of the law, but through the interaction of law enforcement and user in the implementation of criminal law (Sitnikova, 2016). However, the latter are not many, their views are more related to the statement of the existence of incomprehensible provisions in the law, finding ways out of this situation, rather than a complete denial of the existence of clear laws, and finding ways to ensure such a property.

In addition to the above, historical facts show that the incomprehensibility, confusion of laws, their purpose ‘for the elect’ was used by the ruling elite for their own anti-social purposes (for example, criminal law of the early Soviet period, Nazi Germany and so on), as evidenced by authors (Musychenko, 2020) and research by other scientists (Borisova, 2012; Ermakoff, 2020). Therefore, the intelligibility of laws should still be seen as a conscious necessity in a civilized democratic society.

Intelligibility of a criminal law in national and international practice Given that the intelligibility of the law is primarily related to the principle of the rule of law, this term is actively used both in regulations and in decisions of national and international courts.

The term ‘intelligibility’ is beginning to be actively used in the regulations of various states and supranational entities in the early twentyfirst centuries, which is associated with a certain rethinking of the components of the rule of law.

Thus, the Rule of Law Report, approved by the Venice Commission at its eighty-sixth plenary session (2011, Venice, March 25-26), for the first time attempts to generalize terms known to different national laws to denote concepts that are not always synonymous with the rule of rights: the German concept of ‘rechtsstaat’, the Portuguese ‘estado de direito’, the French ‘etat de droit’ (or a term used by the Council of Europe: ‘prééminence du droit’), the Russian concept of ‘rule of law’. The report takes as a basis the definition given by Tom Bingham in 2010, and from it in paragraph 37 derives eight

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components of the rule of law, among which one of the first is accessibility of the law (that it be intelligible, clear and predictable). Based on this definition, as well as taking into account the concept of the rule of law in different legal systems, paragraph forty-one defines the components of the rule of law: (1) Legality, including a transparent, controlled and democratic process of enactment of laws; (2) Legal certainty; (3) Prohibition of arbitrariness; (4) Access to justice by independent and impartial courts, including judicial review of administrative acts; (5) Respect for human rights; (6) Non-discrimination and equality before the law.

Revealing the component of legal certainty, the report highlights the following provisions that are important for the disclosure of the concept of intelligibility: the state must make the text of the law easily accessible; the law has to be formulated with sufficient precision to enable the individual to regulate his or her conduct) (paragraph forty-four); legal certainty requires that legal rules are clear and precise, and aim at ensuring that situations and legal relationships remain foreseeable) (paragraph forty-six); parliament shall not be allowed to override fundamental rights by ambiguous laws (paragraph forty-seven). As we can see, in the context of disclosure of legal certainty, the emphasis is on an accessible, clear, precise, unambiguous law. And to assess the state of the rule of law in accordance with these and other characteristics in individual states, the annex to the report indicates a checklist, including questions: ‘Are the laws written in an intelligible language?’ (Venice, 2011), that is, the term ‘intelligibility’ is a general qualitative characteristic of the language of laws that meet the requirements of accessibility, precision, clarity, unambiguity. This proves that intelligibility is a general property of the law and a broader concept than the requirements of accuracy, clarity, accessibility, simplicity of the language of the law.

The realization that intelligibility is a component of the rule of law and depends on the language requirements for the law defined above has given impetus in recent times to the authorities' meticulous attention to legal language in general, to documents developed by the authorities. For example, in the United States in 2010 passed a law on simple writing, ‘the purpose of this Act is to improve the effectiveness and accountability of Federal agencies to the public by promoting clear Government communication that the public can understand and use’ (Law 274, 2010). This

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96 law introduced the concept ‘plain writing’; the law requires federal executive agencies (agencies) to use plain language in any document that is necessary to obtain any benefits or services from the federal government, or that explains to the public how to comply with federal government requirements; according to it ‘Plain language’ (2011) are developed. Although this law does not apply directly to regulations, the need for their quality is mentioned in an executive orders ‘Regulatory Planning and Revision’ (Order 12866, 1993): Americans deserve a regulatory system that works for them, not against them, particularly regulations that are effective, consistent, sensible, and understandable; each agency shall draft its regulations to be simple and easy to understand, with the goal of minimizing the potential for uncertainty (paragraph twelve). The 2011 ‘Improving Regulation and Regulatory Review’ decree states that the regulatory system should promote predictability and reduce uncertainty, it must ensure thatregulations are accessible, consistent, written in plain language, and easy to understand (Order 13563, 2011).

The available form of legal documents and information provided to the subjects of legal relations, the use of clear and understandable language are among the documents adopted by the European Union: article fifty-seven Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’)), directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, article seven, five Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (Council of the European Union, 2019), and so on. In addition, Inclusion Europe has created European standards for making information easy to read and understand (Inclusion Europe, 2009).

The term ‘intelligibility’ is used and the related requirements for legislation, court decisions directly in the laws of individual states, and recently it is becoming more active. For example, in Art. 300 of the Criminal Procedure Code of

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Ukraine states that if the court decision is incomprehensible, the court that passed it, its decision explains its decision, without changing its content (Code of Ukraine 4651-VI, 2012).

The emphasis on the fact that the content of the norm is identified with reality and depends on human linguistic established practice is made in the Civil Code of Spain, in accordance with Part 1 of Art. 3 which, among other things, ‘norms must be interpreted according to the correct meaning of their words’ (Real Decreto BOE-A1889-4763, 1889).

Of course, greater attention is paid to the intelligibility and comprehensibility of those laws that establish measures related to deprivation of liberty. In most countries, the application of criminal law by analogy is prohibited, as indicated in the laws themselves, which is why the doctrine of criminal law develops specific tools that should be used in lawmaking to ensure the accuracy and intelligibility of criminal law. In addition, at the legislative level in one of the last adopted criminal codes, the Criminal Code of the Kyrgyz Republic enshrined the principle of legal certainty, in Part 2 of Art. 3 states: ‘Criminal law must clearly and clearly define the punishable act (action or omission) and is not subject to expanded interpretation’ (Criminal Code of the Kyrgyz Republic, 2017). Countries that reform criminal law are on a similar path of normative consolidation of the components of legal certainty, including the intelligibility of criminal law. Thus, Ukraine is preparing a draft of a new Criminal Code, in which the developers want to enshrine the principle of legal certainty and formulate the following rule: ‘The provisions of the Criminal Code must meet sufficient clarity, intelligibility and predictability to allow a person to know in advance which acts are criminal and which criminal -legal means provided for their commission’ (Criminal Code of Ukraine (draft), 2021).

An analysis of law enforcement practices shows that both international and national courts are actively addressing issues related to intelligibility and incomprehensibility of legislation.

Thus, the analysis of the decisions of the European Court of Human Rights shows that the Court pays attention to the investigated nature of the laws in its decisions on the appeal of violations of Art. 7 and Art. 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which interprets both the articles as a whole and the specific provisions they apply: ‘constituted a criminal offense in

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accordance with the general principles of law’, ‘rights established by law and necessary in a democratic society’. The judgments of the European Court of Human Rights state qualitative requirements, in particular regarding the predictability of the law: it must be sufficiently accessible, precise, clear (Novik v.

Ukraine, Baranowski v. Poland, Khudoyorov v.

Russia, SW v. The United Kingdom, Kokkinakis v. Greece, Ruban v. Ukraine, Mueller and others v. Switzerland, Salov v. Ukraine, Pasko v.

Russia) (European Court of Human RightsHudoc, database). It is emphasized that the degree of manifestation of the qualitative characteristics of national legislation largely depends on the content of the contested law, the area in which it is intended to cover. If national law allows for the possibility of deprivation of liberty, it must have the highest level of accuracy and intelligibility, be foreseeable to eliminate any risk of arbitrariness. At the same time, the ECHR understands the ‘law’ in the ‘substantive’ rather than the ‘formal’ sense. Thus, it includes everything that constitutes written law, including acts that have less legal force than laws, as well as court decisions in which their interpretation is given. Such an understanding of the law, as shown by the analysis of the case law of the ECHR, often leads to the refusal to satisfy the applicants' complaints of violation of Art. 7 and ‘predictability of the law’ paragraph 2 of Art. 10 of the Convention.

assessing the certainty of rights and offenses in national laws.

The analysis also showed that different terms are used in ECHR decisions to denote qualitative requirements for the law, including criminal law.

Today, the case law of the ECHR in the countries that have acceded to the Convention is a model and reference point for national judicial bodies, recognized as a source of law. In some countries, the law stipulates that the case law of the ECHR national courts are obliged to apply in cases, use as a source of law (Law of Ukraine 3477-IV, 2006). In addition, in accordance with Art. 1 of Protocol №16 to the Convention of 02.10.2013, the higher judicial institutions of the member states may apply to the Court for advisory opinions on fundamental issues concerning the interpretation or application of rights and freedoms. This requires a certain unification of the terminology used in the decisions of the ECHR. As the purpose of the above-mentioned Report of the Venice Commission was to set out a generally accepted clear understanding of the rule of law, so that international organizations as well as national and international courts could interpret and apply this fundamental value, we believe that the ECHR can actively use the term ‘intelligibility of a law’ as the most common for

Quite a number of similar complaints concerning criminal law, for example, the complaint to the Constitutional Tribunal of Poland for noncompliance with the requirements of intelligibility and accuracy of Art. 115 § 21 of the Criminal Code of Poland, which contains vague and ambiguous concepts that do not comply with Part 1 of Art. 42 of the Constitution of Poland (Constitutional Tribunal of Poland, 2015), a complaint to the Constitutional Tribunal of Poland on the inconsistency of Art. 56 of the Criminal Tax Code, Art. 42 of the Constitution of Poland, as the relevant provisions of this Code must be defined fully, precisely and unambiguously, constructed correctly both linguistically and logically, which means the obligation to create clear and understandable regulations (Dorothy G. SK 13/05, 2005), a complaint to the Constitutional Tribunal of Poland Art. 97 of the Code of Misdemeanors, the requirement of specificity of the law, which obliges the subject creating the legal norm to make it clear, clear, unambiguous and clear to the addressees of this norm (Constitutional Tribunal of Poland), the petition to the Constitutional Court of Ukraine on inconsistency of Article

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Recognition by international institutions of the requirements for national laws designed to ensure its intelligibility - one of the criteria for the rule of law - has led to situations where the highest competent bodies of states are increasingly complaining about the inconsistency of certain laws of intelligibility.

For example, a complaint to the Constitutional Council of France about the lack of intelligibility and comprehensibility of the Law on Social Modernization, which violates these requirements to a number of articles of the Labor Code arising from Article 34 of the French Constitution (Resolution No. 2001-455, 2002), a complaint to the Constitutional Tribunal of Poland 24 of the Law on Public Procurement, which contains vague, inconsistently used criteria that violates the constitutional principles of public confidence in the state and the laws it adopts and the proportionality and specificity of the law, which is the accuracy and unambiguousness of its provisions (Public procurement, 2013), the Constitutional Court of Ukraine 7 h. 2 st. 42 of the Law of Ukraine ‘On Higher Education’ of the principle of legal certainty (Sentencia No. 2-r, 2017), as the term ‘dictatorial laws’ used in this provision is unclear, there are no criteria to be followed in its interpretation and others.

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98 368-2 of the Criminal Code Of the Constitution of Ukraine, including legal certainty (Sentencia No. 1-r, 2019), the petition to the Constitutional Court of Ukraine on Art. 375 of the Criminal code of Ukraine (Sentencia No. 7-r, 2020) in which the estimation concept ‘knowingly unjust’ is used, the maintenance of which is not defined by the legislation that doesn't provide predictability of application of this article.

It should be noted that despite the growing number of complaints of violations of legal certainty due to the existence of unclear, ambiguous rules prescribed by law, the relevant higher authorities in different countries mostly refuse to satisfy them, arguing that the use of unclear and evaluative concepts in laws, if their meaning can be determined without violating the principle of legal certainty. Only occasionally, due to non-compliance with these requirements, the higher judicial bodies of the states repeal the relevant legislative provisions if they are insufficiently clear, unambiguous, and therefore understandable. For example, the Constitutional Court of Ukraine recognized Articles 368-2 and 375 of the Criminal Code of Ukraine as not meeting the requirement of legal certainty as a component of the constitutional principle of the rule of law, as the dispositions of these norms are insufficiently clear and allow ambiguous understanding.

The concept of the intelligibility of a criminal law The concept of intelligibility in modern doctrine is addressed from different positions, emphasizing the following.

First, intelligibility is considered in the context of the components of the rule of law. In modern realities, the intelligibility of the law, especially criminal law, is perceived by scholars as one of the guarantees of the principles of legal certainty (the law must be clear, citizens must understand it to comply (Seryogin, 2014)), equality (can only be ensured with equal understanding and interpretation (Pogrebnyak, 2009)) , legality (wording hinders political machinations and the use of the law against the people (Borisova, 2012), justice (because the justice of the law is associated not only with the criminal law measures defined in it, but also with its textual orientation to all without exception (Kozachenko, Vasyliaka, Chornozub & Musychenko, 2020; Kozachenko, Sotula, Biblenko, Giulyakov & Bereznikov, 2021), which are based on the fundamental rule of law.

This approach is due to the understanding of the

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components of the rule of law, formed in practice, which was shown above in this article.

Second, while not denying the achievements regarding the intelligibility of the law as a component of the principle of legal certainty, another group of scholars develops the view that intelligibility is one of the mandatory requirements for the language of the law. It is also a fairly common approach, it is further developed in jurisprudence within the general direction formed by the international community, ‘Plain language’. Its proponents mostly study the problems of legal technique, and understand intelligibility in different ways: as a means of achieving the principles of verbal organization of regulations; as one of the requirements for the language of the law; as one of the general rules of formulation of normative prescriptions; as a criterion for assessing the qualitative characteristics of regulations. Within the framework of this approach, the language problems of the law are mostly considered.

Third, the concept of clarity is reduced to the necessary qualitative properties of the law, because only a set of appropriate means, methods, rules of legal technique, can adequately express the will of the legislator, makes the law intelligible and therefore effective way of legal regulation of public relations. This is a broader concept than just a requirement for the language of the law, because through the use of certain tools that must meet the requirements of accuracy, brevity, unity of terminology, simplicity and accessibility of presentation, the law is intelligibile. We support the latter approach because it allows a clear distinction between terminology, namely ‘language accessibility’, ‘precisely’, ‘clarity’, ‘simplicity’ of the law and ‘intelligibility’ of the law.

Thus, we define the intelligibility of a criminal law as a qualitative property of this legal act, which consists in the maximum proximity of the content of the text of the criminal law laid down by the legislator, drawn up by appropriate legal techniques, to the internal interpretive text of criminal law, and also those entities that are their potential participants.

From the proposed definition it can be seen that intelligibility is interpreted much more broadly than just the linguistic accessibility of the text for most citizens. Intelligibility in our understanding is a certain property that is characteristic of qualitative law. The highest degree of intelligibility is not when the read criminal law prescription becomes easily understood by all

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subjects (simplicity, linguistic accessibility), but when with the application of specific rules of interpretation of the criminal law, which tend to be linguistic, the subjects comprehend through symbolic communication the content of the criminal law, and this content corresponds exactly to what the legislator laid down when formulating the norm, that is the law becomes intelligible.

Based on the proposed concept of intelligibility of a criminal law, we can identify the features that make up its content.

First, intelligibility is a qualitative property of criminal law, which, among others, allows us to talk about its effectiveness, because the quality of criminal law is a system of inherent social properties that reflect its social adequacy, and special legal properties that together determine the effectiveness criminal law influence. This feature indicates the essence of the concept under study, as it allows to focus on belonging to the group of legal properties of criminal law, to distinguish it from belonging to the principles, language requirements, criteria and so on.

Secondly, this property is the maximum proximity of the texts of communication: the text of the law and the text of interpretation. The use of the phrase ‘maximum proximity’ emphasizes that this internal interpretive text (the result of clarification) depends on many factors - age, experience, education, culture, language practice, so it is impossible to achieve a complete coincidence of texts, understanding the text of the law exclusively by all subjects is an unattainable goal. In this aspect of great importance is legal education, legal culture of the population. Since intelligibility is the result of the understanding of many people, the considered property is dynamic. Therefore, the criteria of perception of the text, the clarity of the criminal law should be focused on the average person.

Third, the term ‘internal interpretive text’ used in the definition is used to denote the result of the perception and awareness of the subjects of the textual unit of the criminal law. Clarity is manifested in the positive result of understanding as an element of hermeneutics, so it is automatically a matter of clarification - the stage of interpretation, the result of which is expressed in the reverse, interpretive internal (selfclarification) text of criminal law.

Fourth, intelligibility is ensured by the proper linguistic and structural design of the criminal law, as the transfer of legislative will to textual

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communication takes place through the appropriate means of legal technique. The chain of this communication (law - lex - man, or the content of the criminal law - its textual design the internal interpretive text of the subject) should not be interrupted or distorted, and this is facilitated by legal techniques aimed at precise and clear transmission of legislative will.

Imbalance in any part of this chain is an undesirable phenomenon. And if there are violations in the first link, of course, in the second, due to subjective factors, they are even more pronounced.

The most precise implementation of the legislative will determines the accuracy of the next ‘decoding’ of the text.

Therefore, for the appropriate identical reverse translation of the text, which will be known to a wide range of subjects, it is important to strictly follow the rules of the legal technique of criminal law, which are the key to its clarity and lie primarily in human language practice.

To understand a legal norm is to find out its true meaning. Hence the question of the truth of the content. On the one hand, the objectivity of the norm is reflected in its text, ie the legislator conveys his will by means of language. An objective, true norm will be when the words, their organization in the sentence precisely conveys its meaning. On the other hand, as a result of the interpretation of the norm by the subjects of perception and understanding of the text, the result of clarification (internal interpretive text) is as close as possible to the content of the norm.

Hence the conclusion that to achieve a qualitative property - the intelligibility of criminal law, on the one hand, should take into account the principles, rules, techniques, means of legislative technique of criminal law, compliance with which ensures the appropriate transfer of information, on the other - should take into account rules interpretation (clarification) of the text of the criminal law, taking into account the specifics of the subjects covered by the criminal law (and this is the subjects of criminal law, and their potential participants), so that the result of their interpretation as much as possible corresponded to the established meaning.

Conclusions Monitoring of practice has shown that the term ‘intelligibility’, as well as the related characteristics of ‘clear’, ‘precise’, ‘simple’ law are actively used both in regulations and in decisions of national and international courts.

Given our proposed definition, we believe that

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100 the ECHR can use in its decisions the concept of ‘intelligibility’ of the law as a more general concept and one that conveys an assessment of the implementation of the legal certainty of national laws.

Analysis of court decisions on complaints about incomprehensibility of certain provisions of criminal law as a violation of the principle of legal certainty showed that, noting vaguely defined and evaluative concepts in the criminal laws of states, courts do not consider it an absolute condition for declaring such norms inconsistent with constitutional principles. In this regard, in the context of reforming the criminal law of some European countries, we consider it a good practice to enshrine at the regulatory level the principle of legal certainty and its component - the intelligibility of criminal law as a guide for the legislator in formulating criminal law.

The study of different points of view on the category of comprehensibility in the theory of law allowed to distinguish three groups of main directions to the studied concept: the first intelligibility as a component of the principle of the rule of law; the second - intelligibility as one of the requirements for the language of law, as one of the rules of formulation of regulations, as a criterion for assessing the qualitative characteristics of regulations; third intelligibility as a necessary qualitative property of the law, which depends on the proper use of legal techniques. Within the latter approach, the following definition was formulated: intelligibility of a criminal law is a qualitative property of the criminal law, which consists in the maximum proximity of the content of the text of the criminal law laid down by the legislator, drawn up by appropriate legal techniques, to the internal interpretive text of the subjects of criminal law relations, are their potential participants.

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Criminal-legal hermeneutics: monograph. Kyiv: ArtEk Publishing House.

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DOI: https://doi.org/10.34069/AI/2021.44.08.10 How to Cite: Martazanov, A.M., Karabulatova, I.S., Martazanova, K.M., & Sarbasheva, A.M. (2021). Sacred mythopetronym as a spiritual and moral value of the North Caucasian culture. Amazonia Investiga, 10(44), 103-114. https://doi.org/10.34069/AI/2021.44.08.10

Sacred mythopetronym as a spiritual and moral value of the North Caucasian culture Сакральный мифопетроним как духовно-нравственная ценность культуры Северного Кавказа El mitopetrónimo sagrado como valor espiritual y moral de la cultura del Cáucaso Norte Received: May 12, 2021

Accepted: July 28, 2021

Written by: Arsamak Magomedovich Martazanov 41 https://orcid.org/0000-0003-3718-7764 Irina Sovetovna Karabulatova42 https://orcid.org/0000-0002-4228-3235 Khanifa Magamedovna Martazanova 43 https://orcid.org/0000-0001-8828-3137 Alena Mustafaevna Sarbasheva44 https://orcid.org/0000-0002-7457-9823 Abstract

Аннотация

Mythology is a necessary stage of cultural development in the history of any nation. When a person creates myths, he is in search of the meaning of life and tries to: 1) to fit your life into the framework of a larger whole; 2) to discover a certain structure underlying being; 3) to understand, despite everything, that life has meaning and value. The mythologeme "split stone" in the ethnoculture of the peoples of the North Caucasus, reflected in the novels of the Ingush writer I. Bazorkin, echoes the primitive ideas about the arrangement of the world among different peoples of the world. Since the ethnolinguoculture of the peoples of the Caucasus stands apart among various language classifications, we turn to the analysis of the concept-mythonym "split stone" to identify general and moments of interpretation of the meaning of this concept. Hypothesis: the concept of "split stone" is the basic ethnic idea of the Ingush about the structure of the world order, about the influence of moral qualities of a person on the properties of the surrounding world.

Мифология - необходимый этап культурного развития в истории любого народа. Когда человек создает мифы, он находится в поисках смысла жизни и пытается: 1) вписать свою жизнь в рамки большего целого; 2) обнаружить определенную структуру, лежащую в основе бытия; 3) понять, несмотря ни на что, что жизнь имеет смысл и ценность. Мифологема "расколотый камень" в этнокультуре народов Северного Кавказа, отраженная в романах ингушского писателя И. Базоркин, перекликается с примитивными представлениями об устройстве мира у разных народов мира. Поскольку этнолингвокультура народов Кавказа стоит особняком среди различных языковых классификаций, мы обратимся к анализу концепта-мифонима "расколотый камень", чтобы выявить общее и моменты интерпретации значения этого понятия. Гипотеза: понятие "расколотый камень" является основным этническим представлением ингушей об устройстве

41

Doctor of Philology, Professor of the Department "Russian and Foreign Literature" of the "Ingush state University", (Magas, Russia) Doctor of Philology, Professor, Department of Foreign Languages, Faculty of Philology, Peoples' Friendship University of Russia (RUDN-university), Moscow, Russian Federation.

43 Doctor of Philological Sciences, Professor, Head of Department "Ingush Literature and Folklore" of the "Ingush state University", (Magas, Russia) 44 Doctor of Philology, Head of the Sector of Karachay-Balkar Literature, Institute for Humanitarian Studies-Branch of the Federal State Budgetary Scientific Institution "Federal Scientific Center" Kabarda-Balkarian Scientific Center of the Russian Academy of Sciences", (Nalchik, Russia) 42

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Keywords: mythonym-petronim, North Caucasian fiction, I. Bazorkin, ethnopedagogy, value picture of the world.

мироустройства, о влиянии нравственных качеств человека на свойства окружающего мира. Ключевые слова: мифоним-петроним, северокавказская художественная литература, И. Базоркин, этнопедагогика, ценностная картина мира.

Resumen La mitología es una etapa necesaria del desarrollo cultural en la historia de cualquier nación. Cuando una persona crea mitos, busca el sentido de la vida y trata de: 1) encajar su vida en el marco de un todo más amplio; 2) descubrir cierta estructura subyacente al ser; 3) comprender, a pesar de todo, que la vida tiene sentido y valor. El mitologema "piedra partida" en la etnocultura de los pueblos del norte del Cáucaso, reflejado en las novelas del escritor ingush I. Bazorkin, se hace eco de las ideas primitivas sobre la disposición del mundo entre los diferentes pueblos del mundo. Dado que la etnolingüocultura de los pueblos del Cáucaso se distingue entre varias clasificaciones lingüísticas, pasamos al análisis del conceptomitónimo "piedra partida" para identificar momentos generales y particulares de interpretación del significado de este concepto. Hipótesis: el concepto de "piedra partida" es la idea étnica básica de los ingush sobre la estructura del orden mundial, sobre la influencia de las cualidades morales de una persona en las propiedades del mundo circundante.

Palabras clave: mitónimo-petronim, ficción del norte del Cáucaso, I. Bazorkin, etnopedagogía, imagen de valor del mundo.

Introduction Understanding sacred places in the culture of the peoples of the North Caucasus helps to understand the specifics of ethno-cultural views, helping to build proper intercultural communication. The North Caucasus is located in a mountainous area, so the mountains themselves, as well as their transformations, have a hidden meaning, which is also important for the modern peoples of the North Caucasus. The authors believe that the designation of the mythopetronym "mythologized stone" in the Caucasian ethnoculture has a priority character in the system of ethnic values of the vitality of the ethnos. So, today, the worship of "split stones" is surrounded by myths. It is believed that performing rituals and worshipping a split stone helps infertile women to find the happiness of motherhood, and gives men longevity and health.

The article gives an understanding of local holy places in the Caucasian culture, which is an important moment in the formation of successful сross-cultural communication.

The authors consider the evolution of the concept of "Split Stone" in the Caucasian ethnoculture, analyzing both the Caucasian folk epic, legends, and modern works of art in comparison with real historical events that played a role in consolidating folk ideas about the sacred mythopetronym in the culture of the peoples of the Caucasus.

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The anthropological paradigm in humanitarianism, which determines the main perspective in the works of recent decades, forces scientists to turn to myths as a cognitive and pragmatic phenomenon of modernity (Barth, 2010; Bespalov, 2010; Rejabek, 2003; Sautieva et al, 2021). Basically, the appeal to mythologems is mainly associated with attempts to describe changes in the structure of the meaning of a myth in comparison with the nomination of a particular phenomenon (Karabulatova, 2013; Savchuk et al., 2019).

In the modern era, there is a revival of mythmaking, which has a significant impact on the entire space of culture, as well as on scientific and philosophical research. The revival of myth at a new turn of history is characterized by a variety and a special specificity of myththinking, which requires its philosophical awareness and comprehension (Aliyeva & Zayats, 2015). The relevance of the research is determined by the mythologization of the consciousness of modern man and society (Karabulatova, Lagutkina, & Amiridou, 2021), which determines the sociality of human behavior and worldview orientations. In addition, the emergence of scientific interest in the problem of myth and myth-making is due to the crisis of classical science and classical rationality and contributes to its overcoming.

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Globalization as a kind of large-scale phenomenon of world development generates profound changes in various spheres of public life. The essence of these changes is difficult to understand, which is the paradox of global changes in society (Galanina, 2013; Karabulatova, Barabash et al., 2019). These difficulties give rise to various apologetic and alarmist myths about the nature of the ongoing globalization processes. One of the alarmist myths that has become popular is the myth of a deadly threat to the cultural diversity of the world because of globalization. There is an opinion that globalization has a creative potential in the form of freedom to choose one's path of development under the influence of global culture and a possible incentive to modernize national culture (Akieva, 2016; Fedotova, 2012).

Myths carry an important irrational component, become part of tradition, play an important role in public life, associatively intertwining with the everyday life of society (Baksheeva et al., 2019).

But the myth in modern society has not lost its significance as an important form of public consciousness and representation of reality. Such myths, as a rule, are not part of a long-term tradition that forms the core of culture, but they occupy a considerable place in the fluid mosaic mass culture and solve specific tasks of manipulating consciousness (Barabash et al., 2019).

The question arises about the survivability and effectiveness of myths, despite their ideological and political destructive orientation. Let us consider the reasons for the survivability and effectiveness of myths. The main reason is that myths, like legends, fairy tales, fantasies, are necessary for a person to create inner well-being, spiritual comfort, relieve overstrain, preserve the order of habitual life in an unstable and incomprehensible modern world. In this understanding, the myth becomes a form of selfdeception.

So, the specificity of the myth is that it expresses the needs and interests of a person as a syncretic, pre-reflective, subjective-subjective, irrational, sensual and false form of human consciousness (Belomoeva & Kondratenko, 2020). Initially, the myth was based on undeveloped (pre-logical), and in terms of psychology-on visual-effective, emotional-practical thinking, sensorimotor intelligence (Zh. Piaget).

Thus, the epistemological source of myths was empirical thinking, based in a transformed form on stable undifferentiated sensory-rational constructs of imagination (mythologems), generating an

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uncritical traditionalist model of cognition of the world.

Folk-Art literature is an aesthetic layer of the national worldview, the worldview in the work of the writer, whose work is permeated with the national mythological worldview. In the works of I. Bazorkin, the myth arises as an attempt to build a holistic picture of the world at the intuitive level of perception, capable of generalizing empirical experience and complementing its limitations.

The need for such research is also dictated by the socio-cultural transmission of the archetypal, with the help of which the ethnos "inherits itself" to its new members, primarily children.

This educational potential of the traditional culture of an ethnic group allows us to perpetuate our identity in future generations, which is important in the context of preserving the cultural diversity of multinational Russia. The second side of the process of translation of cultural universals that dictate certain ideals, norms, value orientations, behavioral models, traditions, and customs, etc.is associated with ethnic socialization.

Materials and methods Anthologies and textbook collections of Ingush national folklore, in particular, "Anthology of Ingush folklore", as well as works of art by Ingush writers of the late 20th century were used as a source study base.

The methodological foundations of the study are determined by the specifics of the object and subject of the study, which was carried out considering the fundamental provisions developed by Russian ethnopedagogics on the problems of studying the archetypal in ethnoculture and the material of historians, ethnographers, linguists, and cultural scientists on the problem of the spiritual culture of the Ingush.

The authors also used the following methods: 





the method of comparison, which involves the study of specific facts, their generalization and comparison with other groups of facts; the method of philosophical hermeneutics, with the help of which the task of reconstructing the meanings of archaic texts is solved; the method of textual analysis, which is an important tool in revealing the content of

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106 philosophical texts, folklore, and artistic works.

All these methods made it possible to reveal the initial ideas of the Ingush people about man, society, and nature as constituents of the cultural picture of the world. In the analysis of the cultural picture of the world, theoretical constructs were used, developed by well-known Russian philosophers, culturologists and ethnologists: T. M. Alpeyeva (1997), R. Barth (2010), A.Ya. Gurevich (2005), I. S. Karabulatova (2013), and others.

The methodological basis of the research is the principles of cognition of social phenomena: historicism as a component of the modern theory of social cognition, consistency, complexity, the principle of integrity and unity of the historical and logical, etc. Due to the closeness to the method of observing the archetypal under the multilevel layers of the traditional Ingush culture, the methods of interpretation and typing were used in this work. Along with these methods, the specifics of the research problem led to the use of analytical, aggregate methods, as well as the method of field ethnographic research. The socio-philosophical direction of myth research also develops the concept of transformed forms of consciousness (Alpeyeva, 1997; Kopalov, 2012; Mamardashvili, 2019, etc.) So, T. M. Alpeyeva believes that the myth is: "the attribute property of the consciousness, and specific socio-cultural theological education is not reducible to political and ideological concepts and theories, and spontaneous, unconscious sensory-specific views" (Alpeyeva, 1997), a Semiotic approach to the specifics of the myth revealed what it boils down to understanding how language the phenomenon of consciousness. Structuralist R. Barth (2010) puts forward a distinction between" natural language "and "metalanguage" (mythological discourse), which in turn multiplies into different types, considering sociolects. The mythological discourse is formed as a certain inductive system of meanings that are taken not as a subjective system of values, but as an objective system of facts that sensually construct a given and eliminate its historicity. Political science interpretation of myths (V. Pareto, J. Sorel, A. Wiener) believes that myths are an integral part of political ideology the system of society, aimed as a means to manipulate the mass mythological consciousness. So, we can talk about a mass mythologized consciousness, and first this applies to the sphere of politics.

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To identify the archetypal in the rituals of the life cycle, the theory of "rites of passage" was methodologically of great importance, in which the emphasis is placed on the mechanisms of overcoming critical boundaries by a person with the help of "correct" forms of ritual communication that have a symbolic character.

Results The problem of the formation and development of a person's worldview has been of steady interest to social and humanitarian thought for many years. It is the most important in the educational activities of systems and educational institutions.

In modern conditions, ethnopolitical mythology is becoming an important tool for consolidating society and at the same time is a means of contrasting its members into "friends" and "strangers". It gives a person the strength to overcome everyday difficulties and the hope that all his hardships will pay off with a happy future for all mankind. In this respect, the political myth is deeply dehumanized, since it inspires the idea that his individual life is insignificant in front of social tasks. The concept of "split stone" in the culture of the peoples of the North Caucasus is closely related to the trigger of the tragedy of the Ingush people and ethnorauma (Osipov et al., 2016).

The ethnotrauma associated with the forced deportation of the peoples of the North Caucasus was consolidated thanks to the legends about the sacred petronym "Split Stone". According to the legends of the Ingush and Chechens, the stone splits in days of upheavals and trials for the people or their leaders.

In the attitude of the Vainakhs (Chechens and Ingush) the mountain is the unshakable foundation of life, the basis of the traditional way of life of the mountaineers. The surrounding landscape of the mountains emphasizes this solidity and stability, so the phenomenon of a split stone is a reflection of a certain sociopsychological cataclysm that has been imprinted in nature.

Nowadays, we are dealing mainly with political and ideological myths that have a certain specificity compared to traditional myths. So, if in traditional myths the object of mythologization is gods, cultural heroes, or ancestors, then in political myths these are people and events of the present or recent past.

Secondly, political myths are not transmitted by

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tradition, but are created consciously by certain people or groups of people. They rely on the scientific theories of their time and strive to give political myths have the appearance of verisimilitude and scientific similarity. And finally, the channels of dissemination of modern, especially political myths: unlike archaic ones, occur mainly through the media, and not by oral or handwritten means. For the mythological type of consciousness, it is not the historical event itself that is important, but its interpretation in the existing system of predictions. Therefore, in the myth, the future is strictly determined and can have only one incarnation - the one that has already been predicted. As a result, it is the predictions that have the real reality in the myth, the areal, historical event becomes its echo.

Regarding historical myths, we can talk about the latent and active phase of their functioning.

During the active phase, the myth becomes the dominant of public consciousness, covering either the entire society or a large part of it. With the change of public moods, the circle of its adherents narrows, giving way to another ideological model.

Ethnopedagogy explores the totality of human interaction with the ethnic and cultural environment, has various aspects of these interactions in its field of attention, so it can be argued that it originated in the mainstream of philosophy, then pedagogy, gradually acquired the features of an interdisciplinary branch of scientific knowledge.

The study of the sacred sites of the North Caucasus takes place in primary and secondary schools as part of the regional component. Since schoolchildren know about such places thanks to family traditions, teachers pay attention to the relationship of these places with global, European, Islamic, regional and ethnic traditions themselves.

In the traditional pedagogy of the peoples of the North Caucasus, a man is a reflection of the power of the mountain, so he is unshakable like a rock or a mountain, he is powerful as well as a mountain, so a man's word and deed also have irreversible consequences like a rockfall in the mountains. This behavior is gender-specific in the tradition of the peoples of the North Caucasus.

Popular knowledge about education is concentrated in works of oral folk art and in the secondary interpretation of fiction. The theoretical foundations of knowledge and its

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concepts are applied to the study of folk knowledge on education. In pedagogical and cultural studies, the totality of folk knowledge on the upbringing of the younger generation is considered as wisdom and an integral part of the spiritual culture of each nation. The pedagogical understanding of folk knowledge on education in the history of pedagogy and education is revealed in connection with culture. The principle of the sequence of the development of the knowledge base in folk pedagogy contributes to the formation of a creative approach to its understanding, which is possible based on the integration of knowledge (in the fields of philosophy, pedagogy, cultural studies, psychology, and others). They generally contribute to the further development of ethnopedagogy as a field of scientific and pedagogical knowledge.

The very discovery of the myth and its "decoding" requires close research attention, being directly dependent on the ideological and aesthetic position of the author, his writing skills.

This generally ensures the effect of folklore on the recipients. The Ingush novel of the late twentieth century became an original example of the fusion of the canons of realistic narrative and artistic conventions (Eldiev, 2010). The architectonics of such works has a complex structure, since it combines layers of historical facts with the philosophical and ideological reasoning of the author, which is fastened with abstract and folklore-mythological inclusions of background knowledge (Karabulatova, Ebzeeva, & Pocheshkov, 2017). Similar phenomena are typical for other national literatures of the North Caucasus (Martazanov et al., 2021).

The importance of ethnopedagogy is due, first, to the fact that it integrates humanitarian scientific knowledge, which allows us to form a comprehensive system view of a person as an object of ethnopedagogic influence. Although this study of the genesis of ethnopedagogy is inherently historical and pedagogical, but at the same time, the analysis and coverage of its subject should be given considering the realities of modernity and the prospects for its further development.

The understanding of the world order goes either horizontally (for steppe peoples), or vertically (for mountain peoples). The river becomes the center of the world for the peoples of the plains (Baksheeva et al., 2019), for the peoples of the Caucasus, such a center becomes a mountain, or a sacred mountain. In the Ingush culture, such a center of the universe becomes the stone-rock of

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108 Hagar-Yerda. The image of a stone, a split stone, becomes the key to understanding the focus of the people's forces in historical moments of trials.

The mystical complex "phenomenon-imageword" is typical for the folklore text, characterizing the incompleteness of the figurative knowledge of the world and its mythoritual interpretation. The archaic consciousness modeled its own image of the universe, its virtual reality, inhabited by a lot of fictional characters who were perceived as really existing next to a person, around him, only invisible.

I. Bazorkin (2001) focuses on myths and folklore motifs to understand the genetic memory – the connection between the past and the present. It is no coincidence that the heroes of his epic works make a spiritual pilgrimage to the national origins, to the past that is the desire for purification, the hope of gaining immunity against the temptations of the world, attempts to awaken the instinct of ancestral connection with the past.

In accordance with the above, the model of linguistic and cultural analysis of the mythologeme can be represented as follows: 1.

The semantic structure of the" name " of the mythologeme (according to dictionary definitions); 2.

Modern socio-cultural stereotypes representing the mythologeme; 3.

Stories-origins (mythological, ritual, folklore, everyday); 4.

Elements of the myth formed by this mythologeme (a system of images, end-to-end motives, ritual actions, and attributes); 5.

Idiomatics (aphoristics) related to the mythologeme and its interpretation; 6.

Transformation of the semantics of the mythologeme: oblivion, reinterpretation, the birth of new meanings, etc.

Here is a variant of the linguistic and cultural commentary of the sacred text on the example of the mythologeme stone, which is characterized by a special symbolic load, including sacred. We will note here only those elements of the semantics of the mythologeme that carry sacred meanings. On the one hand, the stone is a natural symbol of certainty, stability, inviolability, immutability, strength. It is no coincidence that the saimbol of the stone exists in all religions of the world. This is the Kaaba, the worship of which has passed from ancient times into the religion of Muhammad — the "black stone".

"Black stones" in most cases are meteorites.

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Appearing from the heavenly space, they become symbols of a higher power. In pre-Islamic times, the "black stone" was primarily a symbol of the male creative force of nature, a phallic symbol of the Sun, and under the name "Heliogabal" ("The one whom the Sun sends to the earth") it was revered throughout the ancient world. Steles and obelisks, Hermes, and dolmens were common among the Greeks, Romans, in the Scandinavian countries, among the Egyptians, Druids (menhirs), Celts (Cromlechs), Pelasgians, as well as in all countries of the East. One of the apostles of Christ is named Peter, which also means "stone". A symbol of stability, duration, reliability, immortality, inviolability, eternal, cohesion, indestructibility of the Highest Reality.

The stone is the archetype of the sun and creation.

On the other hand, it is a deliberate clash with the forces of evil and victory over death. The split stone is a symbol of the struggle between the eternal Light and Darkness. Even such a sketch representation of the symbolic complex, representing the semantics of the stone and the split stone, allows us to conclude that it is necessary to interpret this mythologeme in a broad cultural context, since the marked symbolic meanings are only slightly reflected by dictionary definitions.

In all cultures, the stone, solid and unchangeable, is considered the embodiment of frozen magical powers, so the stone is a tool for divination, making talismans and remedies for healing diseases: from lightning stones, which were considered clouds petrified by fire and thunder, and petrified sea urchins that sweat before rain, to corals, bezoars, and precious stones. It is possible to note the predominance of denotative characteristics of the designated, and even the symbolically labeled block "light, power, magic, struggle, stability" acts here only as a figurative base of the evaluative connotation for the component "spiritual light".

Archetypes are necessary for a person from a psychological point of view, since they create a certain basis for his thinking based on the experience of the past. This experience, concentrated in the tradition, combines elements of both the collective unconscious and consciously developed traditional forms.

The myth, being realized in the author's consciousness of the writer, allows him to create his own universe, going beyond the reality of discourse formation and helping the subject to express himself. All possible forms of consciousness are reflected in the world of culture, but the mythological consciousness

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seems to be the most acceptable for use in ethnopedagogy.

The mythopetronym "Split Stone" functions as a mythologism, declared as the main concept of the mythological space of the Nart epic and North Caucasian folklore, lexically embodied in the form of nomina propria and nomina apellativa, therefore this mythologism can grammatically exist in the singular and plural, in masculine, feminine and neuter genders, in one of the forms of the case paradigm. The nominative nature of folklore texts, in which a word is equivalent to an action, sets the focus of consideration primarily of nouns that carry the main semantic load. In relenvant speech, the named power of the name (the name of the entity) becomes the ability of the name to identify a specific denotation in one or many consituations. The naming power of a name is close to conceptual categories.

The entire space of the Caucasus mountains is mythologized.It appears as a carrier of the semantics of the archetype/ mythologeme. This is the so-called memorative level of the token.

Thus, just as in the history of religious beliefs, new complexes of ideas did not completely displace the old ones, but layered on them, coexisted with them, each mythologism absorbed and fixed in its semantics changes in the picture of the world of generations.

In the conspiracy, we encounter a special onomastic code that corrects the ethnosociostereotypes of the behavior of an individual, since even the external world of one subject or object is to some extent different from the external world of another subject or object of the same kind. In the sacred discourse of the North Caucasian epic, the mountain space itself acts as a physically existing unity that affects any organism (human, animal, insect) and serves as a source of influence on it. That is why the verbal topography is presented in such detail in Caucasian folklore, marking a sacred place in one way or another. If pain is a misfortune, then it must go beyond the mountains, beyond the limits of "its" space. The semiotic semantic principle of the North Caucasian legend about the split stone is based on the fundamental relationship "microcosm – macrocosm", since the human world and its language have, among other things, their own psychological reality.

Every corner of the world surrounding and mastered by man, domestic and natural, is controlled by its own "master" (spirit), to which the storyteller or writer addresses. Here we meet with a kind of "mix" of paganism and religious views of an ordinary native speaker.

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In the ancient myth, in pagan beliefs, spiritual properties are expressed through bodily, material manifestations. The demonic world threatens to cause damage to health, well-being, and damage (violation of the norm) is material or physical expression. It was in this socio-cultural situation that the pagan myth, which once performed a sacred task in close connection with rituals, gradually transformed into a folklore text. The text of the myth in pagan culture was esoteric, that is, it was a carrier of secret knowledge for initiates.

In addition, a significant place in the sacred discourse of the North Caucasian epic is occupied by certain behavioral signs – ritual sacred events, which are understood as actions of a ceremonial nature. For example: rolling an egg on the patient's body when removing the evil eye or damage, jumping on the tops of the mountains of the heroes of the epic to harmonize the space, worshipping lonely standing stones for the treatment of infertility, wrapping the patient's body with copper wire in a rite to remove damage, passing through a scabbard (scissors) or a saber to enhance sexual charisma, etc. In this case, ritualism is realized as predictability, programming, traditionality, the predominance of fatica over information in the sacred rite, which is aimed at actualizing the feeling of satisfaction and joy from achieving the goal.

According to K. K. Kolin, " ... In the process of globalization of society, several destructive factors can already be observed today, which deform and even destroy individual structural components of society and, therefore, will have to lead it to partial degradation. In recent years, these factors have become more and more noticeable in the field of culture. Therefore, their analysis, as well as the prediction of possible consequences, seem very relevant both for science and for practical activity ... From a cultural point of view, the globalization of society means a new humanitarian a revolution, because of which many traditional national and ethnic cultures are undergoing significant changes, and some of them may be not only deformed, but also destroyed" (Kolin, 2008: 2-10). The result of such game strategies with an ethno-socio-cultural identity (Karabulatova, Barabash et al., 2019; Nijiati, et al, 2020) is the transformation of the socio-cultural matrices of human society (Karabulatova et al., 2017).

The story of the tragic fates of young people has a tangible emotional impact on the consciousness of the young hero of the novel, forms his thinking. K. Sultanov's statement regarding the

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110 image-symbol of the "wounded stone" by Kaisyn Kuliyev is quite applicable to this context: "The memory of a native stone is not only a symbolization of unbrokenness and steadfastness, not only a reminiscence of sensory and tactile sensations left in the past, but also an endless spiritual pilgrimage to the roots and source, equivalent to finding the meaning of life.

The stone, without losing its clarity and material objectivity, acquires a metaphysical dimension" (Sultanov, 2017, pp. 233-234). The appeal to the folklore and historical past ensures the use of new technologies in the formation of ethnic and socio-cultural identity among a new generation of young people focused on the use of electronic and mobile gadgets (Entina et al., 2021).

To understand the genetic memory – the connection between the past and the present, I. Bazorkin focuses his attention on ancient myths and folklore motifs. It is no coincidence that the heroes of his epic works make a spiritual pilgrimage to their national origins, to the past, which, according to the definition given by the writer himself in an interview, is a desire for purification, a hope to gain immunity against the temptations of the world, attempts to awaken the instinct of ancestral connection with the past.

Discussion The unquenchable attention to this problem is determined primarily by the fact that the fundamental categories of the worldview that make up its system-structural matrix are the categories "world" and "human" (Karabulatova et al., 2017), the real essence of which to a large extent has not yet had an adequate scientific explanation and remains largely mysterious and unsolved. The significance of this problem is also explained by the fact that the worldview is the highest form of human self-consciousness, which allows him not only to orient himself in the surrounding reality, but also, based on a certain understanding of reality, to consciously regulate his life activity. This allowed Kazan Scientists to assert that the regional ethno-linguistic culture has a huge linguistic and pedagogical potential in teaching minority languages and cultures, which is a key factor in preserving identity (Zamaletdinov et al., 2014). However, R. R. Zamaletdinov does not consider in detail the role of background knowledge of traditional folk pedagogy as an ethno-saving factor in the era of mobility of ethnosociocultural borders.

However, in his works he emphasizes the role of the so-called amulet spirits who live in the sacred places of a particular ethnic group. At the same time, we see a difference in the perception of

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space among the ethnic groups of the "mountains" (the peoples of the North Caucasus) and the ethnic groups of the "fields" (Tatars, Bashkirs).

Today, when the changes in society are so great that they cause fear of a possible violation of their own identity, it is especially important to preserve the role of traditional forms of life, in particular rituals of the life cycle, where the sacred knowledge of the ethnos occupies a significant place, which is preserved thanks to ethnopedagogy and folklore. The sacred mythopetronym "The Broken Stone" enhances the emotional perception of the fate of the native people, encouraging empathy and the formation of life values that activate the affectiveemotional sphere of the personality of the recipient of folklore discourse.

The famous researcher-philosopher G. Gachev argued that ethnic groups are aware of themselves in the world vertically and horizontally.

A "vertical" attitude is characteristic of mountain peoples, therefore the symbolic figure, emblem, model of the world for the North Caucasus is a "bowl up and down" (Gachev, 2008: 28), in other words, infinity of movement, if we complete the image of bowls up to eights ... This is the desire of the spirit to cognize the infinity of the world of the real and the surreal. Stones, mountains, rocks, towers - all this has an aspiration upward, into space, bringing one closer to God. At the same time, the very symbol of the "shattered stone" denotes the futility of the aspirations of the chulovsky spirit, deprived of the support of ancestors, trampled by circumstances, surrounded by enemies. In this sense, the "Broken Stone" acts as a symbol of patience, that it is necessary to gather strength in order to become whole again.

Some researchers of the North Caucasian novel believe that the split stone carries the semantic load of a harbinger of the misfortunes of the Ingush people and subsequent deportation (Gileva, 2017; Tumgoeva, 2013). In turn, this requires a careful selection of language tools (Galanina, 2013; Malevinsky et al, 2019; Vorozhbitova et al., 2019).

In other words, in the people of the middle of the twentieth century, changes took place, which acted as subjective grounds for objectively manifesting themselves tendencies of social development. During this period, the processes of transforming the people themselves, the processes of their personal structure, became active. The transformation of the value-semantic

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foundations of being, the mechanisms of life selfdetermination, the change in determining tendencies. However, scientific analysis did not keep up with the speed of these processes, and they found themselves on the sidelines of scientific existence (Klochko, 2013: 107).

During this period, poets and people of other creative professions are on the "forefront of comprehension", therefore, turning to this paradigm shift is natural in the work of North Caucasian writers (I. Bazorkin and others).

Thus, the legend about the Big Stone of the Nart Debit, a symbol of immortality, interpreted in the North Caucasian novel, presented as a bright touch to the picture of the world in artistic perception, draws the reader's attention to ethnic roots. This is considered an important moment for preserving one's own identity in the conditions of aggressive environmental pressure (Sautieva et al., 2020; Savchuk et al., 2019).

The thousand – year-old stone of the Nart blacksmith Debit, split into two parts (as well as the broken stick of old Zharnes) in the context of the narrative is endowed with the function of a symbol as a tragic prophecy: it is represented as a sign of an impending big trouble in the life of the people-deportation. Harmoniously fitting into the artistic structure of the novel, the designated folklore component actualizes the problem of spiritual continuity, enriching the content of the work with a deep philosophical meaning (Gileva, 2017; Karabulatova, Ebzeeva, & Pocheshkhov, 2017; Tumgoeva, 2013). As the aesthetic experience shows, the natural object – stone, which has been genetically "established" in the Ingush oral literature, finds creative meaning in the North Caucasian art novels of the Vainakh culture in the process of the evolution of artistic thinking (Dolgieva, 2019; Yandieva, 2008).

Today, when the changes in society are so great that they cause fear of a possible violation of their own identity, it is especially important to preserve the role of traditional forms of life, in particular rituals of the life cycle, where the sacred knowledge of the ethnos occupies a significant place, which is preserved thanks to ethnopedagogy and folklore.

Poetizing a natural object, Caucasian writers raise the problems of the spiritual evolution of man. Thus, the motive of the continuity of moral and spiritual values that have been formed for centuries is actualized. For the artistic solution of this problem, folklore elements are used to delve into the precepts of the ancestors, to comprehend

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the original moral essence of the relations of the living with the living. (Yandieva, 2008).

North Caucasian writers creatively interpret legends and folk songs, consciously focus on the natural component-the stone, which "is the oldest archetypal core of the Karachay-Balkar ethnoculture, generating a whole range of conceptual readings due to mythological, heavenly "roots" and earthly, modern "branches" of the image" [Kuchukova, 2015, p. 147], since topoobjects have always been and remain the center of mythologized associative thinking of a person (Baksheeva et al., 2019; Islamova et al., 2020).

The image of the stone in the North Caucasian novel is multifunctional: it is a silent witness to the tragic circumstances in the fates of the characters of the folk song-crying and a symbol of the sad fate of its heroine. The narrative shows the idea of stones, which is characteristic of mythopoetic consciousness, as witnesses and judges (Dolgieva, 2017; Kuchukova, 2015), therefore, a split stone is perceived as a "storyteller stone", talking about the tragic fate of a person and a people.

Conclusion Thus, the appeal of the Vainakh writers to the spiritual and moral experience of the peoples of the North Caucasus contributed to the achievement of versatility in depicting the personal destinies of the heroes in their close intertwining, in revealing the complex interdependence of the psychological and social in the characters, in depicting the national picture of the world. The rich oral and poetic heritage helps to understand the personality in the concept of history and man, thereby determining the ethnic essence of the North Caucasian peoples.

The specificity of the relationship of national literature with oral and poetic creativity is determined in the artistic assessment of ethnopsychology, the actions of the actors from the positions of traditional folk ideas about dignity, honor, wisdom, courage, nobility, and heroism, embedded in the ethnic consciousness.

Folklore motifs in the fiction of the North Caucasus mark the conditions for recreating the national picture of the world, acting as the most important feature of strengthening the ideological and philosophical principle in the work of Vainakh writers. The synthesis of folklore and artistic traditions in epic works contributes to the expansion of the poetic possibilities of verbal art, the range of creative thinking of the authors, determining in the future

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112 the innovative nature of solving complex ideological and aesthetic problems of forming and preserving ethnic identity. At the present stage, folklore remains an inexhaustible source of wisdom, subtlety of world perception, humanism in a high ethical and aesthetic sense for national literatures.

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9, 447-459. https://www.cclbsebes.ro/docs/Sebus_9_201 7/23_KARABULATOVA%20et%20alii.pdf Karabulatova, I., Barabash, O., Barabash, V., Vinogradova, N., Kulikov, S., & Izbassarova, F. (2019). Homo Ludens in modern postmodern discourse: new possibilities of manipulation of public consciousness. Advances in Social Science, Education and Humanities Research, vol 374. International Conference on Man-Power-Law-Governance: Interdisciplinary Approaches (MPLG-IA 2019), Atlantic Press, рр.48-50. https://www.atlantispress.com/proceedings/mplg-ia19/125925278 Karabulatova, I., Vildanov, Kh., Zinchenko, A., Vasilishina, E., & Vassilenko, A. (2017).

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Martazanov A.M., Martazanova Kh. M., & Sarbasheva, A. M. (2021) Folklore and literary continuum in the North Caucasian novel of the late XX-th century in the aspect of ethnopedagogy. Eduweb, Revista de Tecnología de Información y Comunicación en Educación, 15 (2), 275-291, doi: https://doi.org/10.46502/issn.18567576/2021.15.02.21 Nijiati, A., Karabulatova, I., Yuan, L. and Sautieva, F. (2020). Problems of cognitive distortions in cross-cultural communication when using automatic translation in the Russian Chinese dialogue. International Scientific Forum “Issues of Modern Linguistics and the Study of Foreign Languages in the Era of Artificial Intelligence (dedicated to World Science Day for Peace and Development)” (LLT Forum 2020) Volume 88, DOI https://doi.org/10.1051/shsconf/2020880300 4 Osipov, G., Karabulatova, I., Shafranov-Kutsev, G., Kononova, L., Akhmetova, B., Loskutova, E., & Niyazova, G. (2016). Ethnic trauma and its Echo in today’s mental picture of the world among the peoples of the post-soviet states: an interethnic conflicting discourse unfolding in Russian’s ethnolinguistic information space. Central Asia and the Caucasus. Journal of Social and Political Studies, 17(2), pp. 8794.

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DOI: https://doi.org/10.34069/AI/2021.44.08.11 How to Cite: Lin, Y., Karabulatova, I.S., Shirobokov, A.N., Bakhus, A.O., & Lobanova, E.N. (2021). Cognitive distortions in the reflection of civic identity in China: on the material of Russian-language media of East and Western. Amazonia Investiga, 10(44), 115-125. https://doi.org/10.34069/AI/2021.44.08.11

Cognitive distortions in the reflection of civic identity in China: on the material of Russian-language media of East and Western Когнитивные искажения в отражении гражданской идентичности в Китае: на материале русскоязычных СМИ Востока и Запада Received: May 12, 2021

Accepted: July 21, 2021

Written by: Yuan Lin45 https://orcid.org/0000-0001-5685-2278 Irina S. Karabulatova46 https://orcid.org/0000-0002-4228-3235 Alexander N. Shirobokov 47 https://orcid.org/0000-0001-6946-5912 Aleksei O. Bakhus48 https://orcid.org/0000-0001-9738-4896 Elena N. Lobanova49 https://orcid.org/0000-0003-4663-815X Abstract

Аннотация

This article is devoted to the analysis of cognitive distortion in the mass media as a method of forming a civic identity. Due to the increasing influence of mass media and information technologies, the growth of information impact, the problem of the formation of civil identity is becoming more and more significant, and the mass media is a tool for the formation of civil identity. The authors consider the method of cognitive distortion in the mass media as a method of forming a civic identity in modern media. Culture in the Russian and Chinese traditions reveals both universals and peculiarities. The authors analyze how the attitude to civil identity is transmitted in Russian and Chinese media discourses, which allows us to understand the difference in background knowledge and identify cognitive distortions in translation. The authors see differences in the ethnopedagogic strategies of the state that ensure a positive attitude to civic identity in the Chinese

Данная статья посвящена анализу когнитивных искажений в средствах массовой информации как метода формирования гражданской идентичности. В связи с возрастающим влиянием средств массовой информации и информационных технологий, ростом информационного воздействия проблема формирования гражданской идентичности становится все более значимой, а средства массовой информации являются инструментом формирования гражданской идентичности. Авторы рассматривают метод когнитивных искажений в средствах массовой информации как метод формирования гражданской идентичности в современных СМИ. Культура в русской и китайской традициях раскрывает как универсалии, так и особенности. Авторы анализируют, как передается отношение к гражданской идентичности в дискурсах российских и китайских СМИ, что позволяет

45

PhD Student of the Department of Foreign Languages, Faculty of Philology, RUDN (Moscow, Russia- Changchun, China) Doctor of Philology, Professor, Research Professor of the Department of Foreign Languages, Faculty of Philology, RUDN (Moscow, Russia) 47 Candidate of Philological Sciences, Associate Professor, Head of the Department of Modern technologies of mass media and communication of the Faculty of Philology of the RUDN (Moscow) 48 Senior Lecturer of the Department of Modern technologies of mass media and communication, Faculty of Philology, RUDN (Moscow, Russia) 49 Candidate of Philological Sciences, Associate Professor of the Department of Modern technologies of mass media and communication of the Faculty of Philology of the RUDN (Moscow) 46

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digital space, which has parallels with the Soviet discourse. At the same time, the authors believe that the assimilation of Western models of admiration for their values has a negative impact on the formation of generational continuity and ethno-socio-cultural experience in the traditions of countries.

Keywords: cognitive distortion, mass media, manipulation techniques, pedagogical practices, social and project activities, civic identity, psycholinguistics.

понять разницу в фоновых знаниях и выявить когнитивные искажения при переводе. Авторы видят различия в этнопедагогических стратегиях государства, обеспечивающих позитивное отношение к гражданской идентичности в китайском цифровом пространстве, которое имеет параллели с советским дискурсом. В то же время авторы считают, что усвоение западных моделей преклонения перед их ценностями оказывает негативное влияние на формирование преемственности поколений и этносоциокультурного опыта в традициях стран. Ключевые слова: когнитивные искажения, средства массовой информации, методы манипуляции, педагогические практики, социальная и проектная деятельность, гражданская идентичность, психолингвистика.

Introduction We analyze the formation of the transformation of the concept of "civic identity in China" based on the publications of the Russian-language media in China, Russia, Great Britain, the USA, and Germany. Since China and Russia are focused on building strong cooperation at the present time, most Russian-language publications of various Western media are aimed at creating disunity and introducing doubts about the possibilities of cooperation with the PRC and Russia. Among the Western media publishing their materials in Russian, we analyze the BBC, "Radio Svoboda", "Deutsch Welle", some independent Russian media, "Nezavisimaya Gazeta", "FBK" and others.

The official Russian state media are represented by "Argumenty i Fakty" (AiF – in Russian), "Rossiyskaya Gazeta","Komsomolskaya Pravda","Tsargrad","Izvestia","Zvezda", the information portal InoSMI (with reprints of publications from foreign publications in Russian), etc. Chinese media are represented primarily by the publications of the "Xinhua news agency" "and a number of printed and electronic publications in the public domain on the Internet.

The formation of a civic identity focused on a sense of belonging to the state, unity with the national culture can go: 1) with the active participation of young people in solving public problems at the local, regional, national level; 2) with the real development of various social practices of participation in public processes by young people in collaboration with various public and state structures, taking into account

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the intergenerational dialogue; 3) when using socially oriented activities in team forms, etc.

We consider primarily on the problem of coverage of the topic of China in the media discourse. At the same time, we will use both the data of the Chinese media and the data of the Russian media, which makes it clear how the image of the neighboring country is transformed and deciphered by the bearer of the ordinary Russian linguistic consciousness. The very problem of cognitive distortion can be considered on a separate material of Russian reality. However, we prioritize the analysis of cognitive distortions in portraying the problems of Chinese civic identity through the PRC media and through the Russian media in different languages, respectively.

In modern times, from the point of view of the Chinese worldview, the mass media have a new definition and influence on people of any age. On the one hand, the Chinese media relate to state regulation. On the other hand, the media must earn money from advertising themselves, so the media discourse, the discourse of social media uses new images to attract the attention of a potential audience of recipients.

The Chinese media discourse approaches the problem of civil identity in the same paradigm as the change of the seasons, not only in nature, but also in the person himself, who is completely at the mercy of time. The state is the same living

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organism as a person, so it is characterized by a time of growth, maturation, and decline. This process is thought to be natural, so any Chinese person treats this fact philosophically, because this is how the world works. The bitterness of withering, like one's own old age, gave birth to sadness, but never to tragedy. Many poetic lines are marked with sadness, since the life span of any organism is relatively modest (Chinese folk wisdom says: "The human age, there are not even hundreds of years in it"), and nature always reminds human society about this. Human life is fragile - it is "not made of metal and stone", it is fleeting, like a flash of lightning.

The cognitive component forms knowledge about who a citizen is, about the civic community, about state symbols, about the history of the Fatherland and its cultural traditions, about political events taking place in the state, about parties and social movements in the country, about laws, and more (Kostenko, 2012).

In this regard, Chinese culture sees an important element of familiarization with a more significant organism – its people, its country.

This is how civil identity arises.

Materials and methods

Civil identity is an individual sense of belonging to the community of citizens of a particular state, which allows the civil community to act as a collective subject.

Civil identity implies national-civil identity.

state-civil

identity,

The concept of civil identity itself is implemented in such terms as civil patriotism, state patriotism, patriotic identity, socio-political patriotism, citizenship.

Today, the Chinese media operate at the expense of the state, so they clearly comply with all directives and instructions. At the same time, the number of various media and mass media has increased so much that their content at the expense of the state becomes an impossible task (Stavrov, 2017). In addition, Chinese media have begun to rely on their own income received from the advertising business (Ariely, 2008; Areeva, 2016), and therefore they are forced to adhere to the current trends of society.

We believe that these terms are not clearly attributed enough, making confusion in the terminology apparatus.

The concept of "civil identity", according to several researchers, includes three main elements: cognitive-knowledge of belonging to a given social community, value - the presence of a positive or negative attitude to the fact of belonging, and emotional - acceptance or rejection of the civil community as a membership group, because of the first two actions (Vodolazhskaya, 2010).

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We think that it is the cognitive component that is the basis for the development of motives for actions and actions, the content of which is relations that are adequate to the phenomenon of civil identity.

The material for the study is the texts of articles about civil identity in Russia and China in modern mass media based on different structural languages. These materials are collected based on a solid sample from print media, social media, and online publications. The limitation of the research material is due to the need to unify the analyzed data, which allows us to fully analyze the variety of reality situations represented in the media discourse. The total volume of the analyzed material is more than 3000 texts.

Various collections of cognitive distortions are widely represented on the Internet (Baer, & Lubin, 2014; Wikipedia, 2021; Ritholtz, 2012).

We analyzed these collections and compiled a list of cognitive distortions from these collections that affect the formation and transformation of civic identity among young people. Next, we have selected those distortions that, firstly, are confirmed and generally recognized, and secondly, affect decision-making in the civil sphere in the field of regulating the choice of strategies for the formation of civil identity among the younger generation. Then we grouped the cognitive distortions into socio-economic categories. This made it possible to illustrate the course of limitations of human social behavior.

The reliability of the obtained research results is ensured by a representative selection of the considered language material, as well as an integrated approach to its analysis, combining the cognitive, critical, and non-rhetorical aspects (Vorozhbitova et al., 2019; Kataev, 2020; Polyakova et al., 2020) of the study of media discourse.

Theoretical research methods: methods of system analysis, synthesis, factor analysis, model approach, methods of generalization and comparison, analysis of statistical and

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118 sociolinguistic data, correlation analysis, secondary analysis of the results of cognitivepragmatic research.

Empirical research methods: questionnaires, interviews, non-included observation, in-depth interviews.

Results We classified the most frequent cognitive distortions found in the Russian-language media in different countries, which made it possible to identify some general patterns in the participation of the manipulume "cognitive distortions" in the transformation of the perception of civic identity both in China itself and beyond.

The press moves away from the coordination of various interests when it simplifies life conflicts, idealizes, or demonizes political figures of the past or present, reveals some circumstances and ignores others, as well as various points of view (Polyakova et al., 2020). The mass media focus on the differences that exist between social groups, political and economic actors, and not on the search for compromises, agreement. The simplification and stereotyping of information policy leads to the fact that the press mainly reflects the manifestations of a formalized identity, the participation of people in public actions on the initiative of political or economic subjects, focuses attention on scandalous circumstances associated with the lives of famous people. Less often, the press tries to comprehend the motives of an individual participating in public activities, to identify which interests attract him-social, political, or personal, to reveal the meaning of diverse civil initiatives, horizontal communication links.

The term "manipuleme" was introduced by I. S. Karabulatova in the definition of a manipulative technique used to change the attitude towards something or someone (2020a). Later, this term was considered in detail by I. P. Savchuk in the

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system of manipulative media discourse (2021).

At the same time, Yongchen Ruan and I. S. Karabulatova (2021) made significant clarifications in the definition of manipuleme, based on the analysis of fiction and documentary film discourse of China and Russian Empire.

Nevertheless, the press can participate in the formation of an individual's active position, to serve as an institution for coordinating social, political, and personal interests.

First, the attempts of the mass media to reveal the civil potential of people, to instill in them confidence in their own capabilities, are useful.

According to sociologists, a considerable part of the local community, about a fifth of the residents of the municipality are characterized by initiative and responsibility, enthusiasts can become the core of local self-government, involve potentially active people in solving problems.

As a rule, a positive response, a desire to understand one's place in the life of the country, region, and local community is caused by messages about the social creativity of fellow citizens, about their participation in legislative, volunteer, and charitable activities.

Mass media encourage many people to act for the common good, when they spread the ideas of self-regulation and self-organization of society, information about the activities of civil activists who are forced to replace the authorities in solving acute social problems, represent not only different points of view, but also argumentation, systems of views shared by participants in competitive interactions taking place in the socio-political sphere.

Secondly, the mass media would provide a service to society if they identified opportunities for using tools of civil control and examination of socially significant programs and projects, expanding cooperation between authorities and experts in assessing and monitoring the state of institutions, as well as public policy actors.

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Table 1.

Classification of cognitive distortions according to the directions of influence on the civil identity of a person № 1

Criteria Hazard/ risk

2

rationality

3

information

4

time

5

rules and regulations

Cognitive distortions risk aversion Zero-risk bias Pseudo certainty effect Post-purchase Wishful thinking Bandwagon effect rationalization Confirmation Availability Information bias Authority bias bias heuristic Ambiguity Self-fulfilling Framing effect Anchoring effect prophecy Planning fallacy Gambler's fallacy Moral credential the effect of The henomenon Amplification effect authority of a "just world" the effect of processing level imaginary false memory disinformation effect constancy

There is no doubt that the comparison of cognitive distortions and socio-pedagogical categories cannot be unambiguous. For example, the effect of mass infatuation can be not only a consequence of violating the requirement for rationality, but also a property of economic an institution that pushes individuals to violate their own interests in such a way that it is necessary to classify these distortions in the form of a graph with edges of different connection strength rather than in the form of a linear comparison, as we did in the table. However, we have made some correspondence in the table with the most strongly related phenomena, which, given the requirement of ceteris paribus, is quite sufficient.

People extract information from the mass media, which creates a natural course of formation of cognitive distortion in civil identity, since recipients unconsciously perceive meanings distorted due to their own background knowledge, which leads away from the goal of the original propaganda discourse. This aspect is especially important in the aspect of adaptation of migrants in the host community (Ebzeeva, Karabulatova, & Nakisbaev, 2018; Xia, 2008; Niijati et al, 2020), while the "friend-foe" dichotomy is exacerbated (Luchinskaya et al., 2018; Sautieva et al., 2020).

Russian mass-media discourse used to position the geopositioned China itself as a designation of Evil (since the sacred image of the dragon in Chinese culture is perceived as a symbol of devilish forces in Russian culture), now the focus is shifting towards emphasizing common features between Russians and Chinese. In the context of civic identity, this is an emphasis on the community mentality. At the same time, familiarity with Chinese linguistic culture forms respect, and sometimes admiration among

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Russian respondents, which is associated with China's success in scientific and technological progress. At first, in the Chinese media discourse, China and Russia are positioned as partners and successors of the great Soviet past, which creates a sense of pride in the common history of the era of socialism in the context of creating a positive civic identity. Actions for the formation of a positive civic identity are events for the dates of the Communist Party of China, for the dates of the Second World War, etc.

An important component is the use of information technologies and means of positive communication on the Internet, without which it is impossible to imagine the life of the younger generation. Technologies of mobile learning, virtual communication, electronic news actualize the need for the younger generation to form competencies for creating and maintaining thematic blogs (for example, an algorithm for meeting and communicating with peers from other countries in social networks, etc.; or creating video content in blogs about the progress and results of implementing their own projects; training in the skills of presentation of work with blogs (about "traces of activity", impressions of communication with foreigners, etc.).

The system of discursive dominants of the mental space of personal effectiveness is formed due to the concretized attitudes of the general selfattitude to success, which stimulates the activitycommunicative needs of the recipient's pragmatist with the transition to the autocommunication mode. However, the very stereotype of the country and civil identity begins to be perceived as integral components of the image of the country with which the recipient identifies himself, therefore, civil identity is formed based on associations, background

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120 knowledge about the country and ethnic group, and therefore it is always ethno-culturally and ideologically conditioned. This understanding of civic identity gives us the opportunity to go beyond the limits of sociological discourse, turning it into the field of linguistics and pedagogy (Erina et al., 2020).

We must distinguish between "misunderstanding" and "delusion". The socalled misunderstanding refers to a misunderstanding. The implicit precondition is based on the information as a standard. Any understanding that differs from the intention of the author of the propaganda is a misunderstanding. When the recipient receives information, he has a lot of ideas that vary from person to person, so a certain degree of cognitive bias is inevitable.

In this regard, we can divide the producers of mass media discourse that affect the multivariability of cognitive distortions into two types: 1) official media and 2) unofficial media.

Unofficial media are represented by the following subtypes: 1) Personal (author's, private, personal) blog / website / page; 2) Bot blog (a special program for the purpose of identifying and collecting information); 3) An anonymous (ghost) blog / website / page on behalf of a fictional character, with the concealment of real data about the author; 4) Fake blog (on behalf of publicity, etc.); 5) Corporate blog (the page of any department, institution on the Internet); 6) Vlog (video channel on behalf of someone or something; 7) Advertising page (promotion of a person/ group of persons/ enterprise on the Internet); 8) Social page (social interest group).

For example, a group of social blogs written by representatives of various social groups (disabled people, parents, migrants, etc.) is widely represented in the mass media. For example, some migrants themselves write on their pages in the mass media about the problems of forming identity and preserving the ethno-cultural value of the host community. These expats talk about life in the country "from the inside", illustrating the process of adaptation, acculturation in the host community.

Any person makes decisions differently in a situation involving a particular risk. In conditions where there are risks, certain cognitive

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distortions are reflected, for example, risk aversion, preference for zero risk, the effect of pseudo-confidence. An example of cognitive distortion is the phenomenon of a "just world" and the effect of an identifiable victim when children and adolescents are used in military operations as hostages and/or participants in illegal actions (Bazhanov, 2021; Kozyrev, 2021).

One and the same event - student protests in Hong Kong are presented differently in the state Russian media (Kozyrev, 2021) and in the Russian-language Western media (Bazhanov, 2021). Thus, P. Bazhanov emphasizes that the leading slogan of the protests was "Freedom to Hong Kong. The Revolution of Our Day", indicating that Hong Kong demonstrates a formed regional identity that differs from the civic identity of the rest of mainland China. At the same time, the journalist cites certain historical facts that led to the awareness of the people of Hong Kong of their exclusivity and formed their understanding of democratic freedoms of the Western type as opposed to traditional social behavior in China. In this regard, P. Bazhanov writes: "China endured opposition in Hong Kong for a long time, but now decided to finally tighten the screws.

Meduza tells how democracy was born in the city-state - and how it was killed" (Bazhanov, 2021, electronic resource). At the same time, P. Bazhanov uses such a widespread method of cognitive distortion as selective perception, when only those facts are considered that are consistent with expectations.

At the same time, D. Kozyrev (2021) explains why the destruction of human rights organizations is a positive fact for the Chinese society. He notes that most of the youth organizations of the Democratic type in Hong Kong have self-disbanded due to the loss of the need for their existence. So, D. Kozyrev uses methods of devaluation and generalization, pointing out that "demonstrations were organized (...) and turned into something like a carnival for Venice: how could it be without him? in any society" (Kozyrev, 2021, electronic resource).

We believe that a critical approach to materials of this kind allows the recipient of mass media discourse to form his own point of view, which can either coincide with the point of view of a particular media outlet or can help his own idea of a particular situation, fact, event, phenomenon, person. We think that a diverse and sometimes contradictory presentation of the same events contributes to the formation of an

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objective view that reflects different points of view.

Nevertheless, it is the media discourse that can form an active life position of an individual, reflecting the activities of social institutions to coordinate social, political, and personal interests.

Researchers note various reasons and sources for the formation of cognitive distortions as a kind of social phenomenon (Karabulatova et al., 2017; Kashapova & Ryzhkova, 2015). Here, emotional, moral, and ethical reasons, the limited capabilities of the brain for processing information, the specifics of encoding and decoding information, etc. are brought to the fore.

Discussion Modern media discourse, regardless of the language, has a special form of discursive representation of reality, which is designated as mediatization. We understand by mediatization the discursive processing of reality by writers either by the type of "reflection" or by the type of "construction".

N. Luhman, a researcher of media communication, clarifies that any communication acts as a kind of synthesis of three selections consisting of information, communication and understanding (Luhman, 2005: 7). The main function of communication is to unload and expand the cognitive abilities of people (Aipova et al., 2021). A person "can perceive at a distance, and this opportunity, acquired by a person in the course of evolution, cancels the need for him to get all the information himself, because with the help of others, you can get much more information" (Luhmann, 2005: 9). N. Luhmann also puts forward the hypothesis that modern society is a society as a medium (Der Massenmedien), or a system of communications that constitute themselves by distinguishing between the medium and the form. This system "makes it possible for people to communicate selectively with each other while maintaining their independence from each other" (Luhmann, 2005: 11).

It is no secret that news is texts that maximize the main function of mass communication informative. The comment combines the implementation of the message function with the strengthening of the impact component through the expression of opinion and evaluation.

Journalistic texts are characterized by a further strengthening of the impact in its artistic and aesthetic version (Dobrosklonskaya, 2010: 30).

The difference from the classification of B. A. Zilbert (1986) is the addition of advertising, which combines the influencing function in two forms: as "a function of language realized through linguistic means, and as a function of mass communication realized with the help of special media technologies" (Dobrosklonskaya, 2010: 33).

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Behavioral models were developed by psychologists to determine the specifics of the conditions for the manifestation of cognitive distortions, considering the causes. Modern researchers (Kryukova et al., 2018) point out that errors in the social behavior of individuals in the conditions of choosing a decision strategy are systemic in nature, and therefore quite measurable. The phenomenon of cognitive distortions itself refers not so much to the requirements regarding oneself or others, as to the secondary emotional coloring of upcoming or current events. This emotivity of the event is due to the previous experience of the individual and his background knowledge. As a rule, most irrational beliefs are directly related to the immediate personal experience of the individual himself, while cognitive distortions have a variety relative to their object.

The issue of the formation of civic identity in the conditions of modern Russia acquires a high degree of relevance in the situation of rejection of official forms of social activity among young people (Gadzhimuradova, 2009; Semenova, 2010). While in China, this issue is aggravated due to the protest behavior of Chinese youth (Dong & Korzhova, 2017), which is expressed in apathetic passive social behavior, the symbol of which is Lelouch (Lisitsa, 2021). Social nihilism, hedonism, social apathy, and laziness in Chinese youth culture have become a response to the intensive exploitation of motivation factors without considering the work of the psyche, for the functioning of which it is important to change the modes of work and rest. As a result, the mass media present the audience with transformed personal myths and changed legends (Savchuk et al., 2019; Kloet and Fung, 2017), which also contributes to the spread of cognitive distortions in society.

The cognitive component forms knowledge about who a citizen is, about the civic community, about state symbols, about the history of the Fatherland and its cultural traditions, about political events taking place in the state, about parties and social movements in the country, about laws, and more. Researchers

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122 rightly note that it is the cognitive component that is the basis for the development of motives for actions and actions, the content of which is relationships that are adequate to the phenomenon of civil identity (Efimenko, 2013; Xi & Xia, 2006).

At the end of the ХХ century, a fundamentally new environment began to form, where all spheres of life are directly related to the use of information, which categorically changes the living conditions, culture, and behavior stereotypes (Voronina, 2014; Khachmafova et al., 2017; Minhua, 2017; Kyrychenko et al., 2021; Entina et al., 2021). As a result, information becomes one of the most important means of influencing public opinion and public behavior, i.e., a management tool. Modern life is becoming more and more dependent on the quantity and quality of the information provided.

Today, information is no longer an insignificant attribute of social development, rather, on the contrary, it is a strategically important resource (Barabash et al., 2019; Golubtsov et al., 2019; Pastukhova, 2018; Polyakova et al., 2020).

Our research is since when making social decisions about one's own identity, an individual is prone to making mistakes under the influence of various psychological factors and socioeconomic conditions.

Conclusion Now is the information age, and the role of mass media in public life is becoming more and more noticeable, since they carry potential dangers (Karabulatova, 2020). People's work and life are inseparable from the demand for information.

Constantly updated mass media meets the needs of people and becomes an indispensable tool for them to understand external information.

Political construction, economic prosperity and cultural integration depend on the help of the mass media.

The technological changes and social impact caused by mass media are enormous. In the information environment created by the mass media, network users suffer most from the impact of information life in the era of new media. With such an impact, network users consciously or unconsciously create certain cognitive distortions, including a cognitive distortion of civil identity.

Cognitive distortions are corrected primarily due to the media discourse and psychological and pedagogical practice, which uses the

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achievements of cognitive behavioral practice, psychotherapy. In fact, to correct cognitive errors and change irrational beliefs, a high level of selfreflection and critical thinking using introspection is required, since it is necessary to have the ability to catch those thoughts that cause discomfort, inflate negative emotions. Thanks to purposeful work, cognitive distortions can be weakened and leveled.

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DOI: https://doi.org/10.34069/AI/2021.44.08.12 How to Cite: Katlishin, O.I., & Panyshev, A.I. (2021). The competitiveness evaluation of milk trademarks on the market of Chelyabinsk region. Amazonia Investiga, 10(44), 126-137. https://doi.org/10.34069/AI/2021.44.08.12

The competitiveness evaluation of milk trademarks on the market of Chelyabinsk region ОЦЕНКА КОНКУРЕНТОСПОСОБНОСТИ ТОРГОВЫХ МАРОК МОЛОКА, РЕАЛИЗУЕМОГО НА РЫНКЕ ЧЕЛЯБИНСКОЙ ОБЛАСТИ Evaluación de la competitividad de las marcas de leche realizadas en el mercado de la región de Chelyabinsk Received: May 28, 2021

Accepted: July 25, 2021

Written by: Oleg Ilyasovich Katlishin50 https://orcid.org/0000-0003-2869-2312 SPIN: 9498-8542 Anatoly Ivanovich Panyshev51 SPIN: 9756-8482 https://orcid.org/0000-0002-9171-6092 Abstract

Аннотация

The milk market in the quarantine conditions associated with the pandemic and the spread of COVID-19 is going through a difficult period, superimposed on a number of pre-existing problems. In particular, the production of raw milk by agricultural producers is growing, while this contradicts the fact that the consumption of milk in the country is falling, and incomes of the population are decreasing. All these factors lead to increased competition in the drinking milk market and determine the relevance of the issues of studying its competitiveness, especially in a specific regional market. Today there is a lack of a comprehensive scientific understanding of methods for assessing the competitiveness of drinking milk presented on the local market. As the purpose of the study, the article stated the assessment of the competitiveness of drinking milk brands, the most common in the market of Chelyabinsk region. As a result of scientific research, a quantitative expert assessment of quality was determined and an assessment of competitiveness from a professional objective point of view was carried out by taking into account the quality per unit of money paid. The result of the study was the development of recommendations separately for different target

Рынок молока в условиях карантина, связанного с пандемией и распространением COVID-19, переживает сложный период, накладывающийся на целый ряд ранее существовавших проблем. В частности, производство сырого молока сельскохозяйственными производителями растет, при этом в противоречии с этим вступает тот факт, что потребление молока по стране падает, сокращаются доходы населения. Все эти факторы приводят к усилению конкуренции на рынке питьевого молока и обуславливают актуальность вопросов изучения ее конкурентоспособности, особенно на конкретном региональном рынке. Сегодня не хватает комплексного научного понимания методик оценки конкурентоспособности молока питьевого, представленного на локальном рынке. В качестве цели исследования в статье была заявлена оценка конкурентоспособности молока питьевого торговых марок, наиболее распространенных на рынке Челябинской области. В результате научного исследования определена количественная экспертная оценка качества и проведена оценка конкурентоспособности с

50

PhD in Economics, Associate Professor of Department of Commodity Research and Examination of Goods, Perm State AgroTechnological University named after Academician D.N. Pryanishnikov, Russia; Associate Professor of Department of Economic Analysis and Statistics, Perm Institute, branch of REU named after G. V. Plekhanov, Russia.

51 PhD in Agricultural Sciences, Associate Professor of Department of Commodity Research and Examination of Goods, Perm State Agro-Technological University named after Academician D.N. Pryanishnikov, Russia.

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audiences, who can benefit from the results of the study: consumers, retailers and manufacturers.

Keywords: drinking milk, competitiveness of milk, price and quality of milk, assessment of the competitiveness of milk.

профессиональной объективной точки зрения путем учета качества за единицу уплаченных денежных средств. Итогом исследования стала выработка рекомендаций отдельно для разных целевых аудиторий, которым могут быть полезны результаты исследования: потребителям, розничным торговым предприятиям и производителям. Ключевые слова: питьевое конкурентоспособность молока, качество молока, конкурентоспособности молока.

молоко, цена и оценка

Resumen El mercado de la leche en las condiciones de cuarentena asociadas a la pandemia y la propagación del COVID-19 atraviesa un período difícil, superpuesto a una serie de problemas preexistentes. En particular, la producción de leche cruda por parte de los productores agrícolas está creciendo, mientras que esto contradice el hecho de que el consumo de leche en el país está disminuyendo y los ingresos de la población están disminuyendo. Todos estos factores conducen a una mayor competencia en el mercado de la leche de consumo y determinan la relevancia de los temas de estudio de su competitividad, especialmente en un mercado regional específico. Hoy en día existe una falta de una comprensión científica integral de los métodos para evaluar la competitividad de la leche de consumo presentada en el mercado local. Como propósito del estudio, el artículo planteó la evaluación de la competitividad de las marcas de leche de consumo, las más comunes en el mercado de la región de Chelyabinsk. Como resultado de la investigación científica, se determinó una evaluación cuantitativa de la calidad por parte de expertos y se llevó a cabo una evaluación de la competitividad desde un punto de vista objetivo profesional teniendo en cuenta la calidad por unidad de dinero pagada. El estudio dio como resultado el desarrollo de recomendaciones por separado para diferentes públicos objetivo que pueden beneficiarse de los resultados de la investigación: consumidores, minoristas y fabricantes.

Palabras claves: leche de consumo, competitividad de la leche, precio y calidad de la leche, evaluación de la competitividad de la leche.

Introduction Milk is one of the most ancient food products of animal origin, while it doesn’t lose its importance in the daily diet of the population today.

However, the dairy subcomplex and the milk market are not going through the easiest times during the coronavirus crisis. According to O. I. Katlishin, the production of whole milk in commercial farms in recent years has been characterized by an upward trend due to favorable external economic conditions of the food embargo and solid government support measures for the dairy industry (Katlishin, 2018).

A.V. Popova and G.V. Bykovskaya note that as a result of production growth, retail trade networks offer consumers a large volume of the widest assortment of drinking milk of various brands, in various packaging, various degrees of fat content, etc. (Popova, & Bykovskaya, 2016) Already in 2019, the consumption of dairy products in terms of milk in the Russian Federation decreased by 0.5%. At the same time, http:// www.amazoniainvestiga. info

A. E. Surinov focuses on the fact that in the context of the economic crisis caused by the pandemic, the main factor determining the volume of consumption of dairy products is the stagnation of income of the population, and by the end of 2020, the volume of consumption of dairy products may sink even more (Surinov, 2019). It is also worth considering that milk is a perishable product with a limited period of sale, and the profit of both the seller's and the manufacturer's company largely depends on the degree of its competitiveness. All these factors lead to increased competition in the dairy market and determine the relevance of the issues of studying its competitiveness.

In this article, the competitiveness of milk, following I. V. Vasilieva, is understood as a complex of quality and price-forming characteristics that reflect the advantages or disadvantages of a particular brand of drinking

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128 milk, determined by various methods (Vasilieva, 2016).

Literature review Russian scientists V. V. Khaidukov, N. E. Astashova, & D. V. Kozlenko (Khaidukov, Astashova, & Kozlenko, 2021), D. S. Voronov (Voronov, 2015), I. N. Burobkin, E. M. Dusaev (Burobkin, & Dusaev, 2004), A. I. Kolobova, O. A., Kosintseva (Kolobova, & Kosintseva, 2010), A. A. Volodkina, Zh. V. Domozhilkina (Volodkina, & Domozhilkina, 2016), N. M. Morozov, Yu. A. Tsoi, V. V. Kirsanov, N. G. Bakach, V. I. Perednya (Morozov, Tsoi, Kirsanov, Bakach, & Perednya, 2018), B. M. Dvinsky, & A. I. Grinevich (Dvinsky, & Grinevich, 2015), I. M. Lifits (Lifits, 2001).

Scientists B. M. Dvinsky, A. I. Grinevich express the scientific point of view that milk is the food records for the content of complete proteins, fats, phosphatides, mineral salts and fat-soluble vitamins, and in total about one hundred substances that are very important from a biological point of view is found in milk (Dvinsky, & Grinevich, 2015). Based on quality and other characteristics, drinking milk is considered competitive on the market, having a complex of attractive consumer, quality and cost properties, which, in the context of a wide supply, ensure the satisfaction of buyers' needs and commercial success of commodity producers. According to V. V. Khaidukov, N. E. Astashova, & D. V. Kozlenko, economic aspects of the competitiveness of drinking milk depend on the ability of a particular commodity producer to produce a competitive product, the characteristics and quality of which, in comparison with analogue products, determine its market success, both in the domestic and foreign markets (Khaidukov, Astashova, & Kozlenko, 2021).

In assessing the indicators of the competitiveness of a product, two sides interact: on the one hand‒ consumers, on the other hand ‒ commodity producers. The value of the same indicator can satisfy the buyer and be completely unacceptable for the manufacturer. If we compare the first 10 months of 2018 and 2019, then we can note an increase in import volumes by 14%. According to D. S. Voronov’s estimates, the annual import volume in terms of milk equivalent should have grown by 10% and amounted to 7.0‒7.1 million tons (Voronov, 2015).

There are several methods for assessing competitiveness, used in practice of enterprises

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or proposed by some authors as scientific developments. I. N. Burobkin, E. M. Dusaev distinguish three main methods: 1) systemic; 2) process; 3) situational (Burobkin, & Dusaev, 2004). The most common method for assessing the competitiveness of a product is the index method, the essence of which is the ratio of product quality to its price. The higher the quality and lower the price, more competitiveness is. The index method is considered to be the most effective by A. I. Kolobov, O. A. Kosintsev (Kolobova, & Kosintseva, 2010), N. M. Morozov, Yu. A. Tsoi, V. V. Kirsanov, N. G. Bakach, V. I. Perednya (Morozov, Tsoi, Kirsanov, Bakach, & Perednya, 2018).

The differential method is based on the use of single parameters of the analyzed product and the comparison base and their comparison. In most cases, the differential method allows only stating the fact of the competitiveness of the analyzed product or its shortcomings in comparison with the analogue product. It doesn’t take into account the influence of each parameter on consumer preferences when choosing a product. To eliminate this drawback, I. M. Lifits uses a comprehensive method for assessing competitiveness (Lifits, 2001).

A comprehensive method for assessing the competitiveness of a product is based on the use of complex indicators or a comparison of specific beneficial effects of the analyzed product and the sample. A complex indicator for technical parameters is the sum of the products of technical parameters and their weightings. To determine the significance of each technical parameter in the general set, expert estimates based on the results of marketing research are used. This complex indicator characterizes the degree of compliance of a given product with the existing need for the entire set of technical parameters.

The above methods for assessing the competitiveness of a product are commonly used and are often found in domestic literature. They meet the requirements of the modern information economy, maintaining the efficiency of the functioning of food enterprises.

Materials and methods The aim of the study is to assess the competitiveness of drinking milk brands, the most common in the market of Chelyabinsk region. Achievement of this goal was carried out through the solution of the following tasks: 1) identification of competitiveness, taking into account the price and quality of drinking milk

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samples; 2) assessment of the competitiveness of milk using a complex integrated indicator and the development of recommendations for retail chains to improve the assortment matrix and for producers to increase the level of competitiveness of the studied milk brands.

The object of scientific research is the competitiveness of drinking milk with a mass fraction of 3.2% fat, sold on the market of Chelyabinsk region. The subject of this research was the quality, price and other factors of the competitiveness of milk.

The methodological and informational basis for the study were scientific articles on this topic, regulatory documents, as well as relevant Internet resources.

When carrying out the work, the following methods were used: monographic, analytical, organoleptic, sociological survey method, as well as such marketing research methods as determining the price / quality ratio and the integrated indicator of competitiveness.

There are many methods for assessing the competitiveness of dairy products: express methods (calculated by experts qualimetrically as the sum of points); graphic methods (graphs, diagrams, "radars" of competitiveness are used, visualizing the assessment of the competitiveness of a product); calculation of integrated and complex indicators.

The research was carried out in three stages: 1) selection of milk trade samples presented on the market of Chelyabinsk region; 2) determination of the competitiveness of milk by the price-quality method; 3) determination of a complex (integrated) indicator of competitiveness based on the study of consumer preferences.

During the first stage, samples of drinking milk «First taste» (sample № 1), «Podovinnovskoye milk» (sample № 2), «Chebarkul milk» (sample № 3), «New day» (sample № 4) were collected.

To comply with the requirements for the typical and representativeness of the study, milk samples were selected for identical characteristics from a homogeneous group of dairy products: volume ‒ 1000 ml, type of packaging ‒ tetra-pack, purepack; mass fraction of fat 3.2%.

Based on preliminary studies on the quality of selected milk samples, which are one of the stages of an end-to-end comprehensive scientific study and are not included in the content of this

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article (direct studies of the organoleptic and physicochemical indicators of the quality of milk samples were carried out not by the authors of the article, but in a special expert laboratory of Perm State Agro-Technological University named after Academician D.N. Pryanishnikov), their quantitative expert assessment of quality was carried out. In the course of the work, a point assessment of the organoleptic and physicochemical indicators of the quality of the studied milk samples was carried out. The experts were asked to evaluate the following indicators of the studied milk samples on a fivepoint scale: appearance, consistency, taste and smell, color, density of milk, its acidity, mass fraction of fat, content of dry skim milk residue and purity group.

The appearance and color of milk should be an opaque white liquid. The consistency should be liquid, homogeneous, not viscous, without flakes. Taste and smell characteristic of milk, without foreign tastes and odors, with a slight aftertaste of boiling. The density of pasteurized milk was determined by measuring the volume of the analyzed sample and the mass of the hydrometer floating in it. Acidity was determined in Turner degrees, which should not be more than 21 ° T. The proportion of fat was determined by an acid method based on the separation of fat from milk, under the action of concentrated sulfuric acid and isoamyl alcohol, followed by centrifugation and measurement of the volume of released fat in the graduated part of the butyrometer. Milk solids were determined after drying, purity was determined by the absence of mechanical impurities on the filter after filtration.

The second stage was to determine the competitiveness of milk using the price-quality method. When assessing competitiveness by the price-quality method, a quantitative expert assessment of samples of the studied brands of milk was carried out. Four experts, using a brainstorming method, collectively evaluated the above-described indicators of the studied milk samples on a five-point scale: appearance, consistency, taste and smell, color, milk density, as well as its acidity, fat mass fraction, non-fat milk solids content and purity group. When assigning marks, the data of a preliminary laboratory study were used, the collective assessment was rounded to the nearest whole, the head of the expert group had a double vote to prevent situations when adjacent marks were given by an equal number of experts (for example, two experts were assigned 4 and 5, and if the head group was among those who rated at 5, then the final mark will be five). After the point

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130 assessment, the results are adjusted taking into account the weights, after which the quantitative qualitative assessment is divided by the price, and the more quality points can be bought for one ruble, the higher the competitiveness is.

The third stage of the study was the definition of a complex (integrated) indicator of competitiveness based on the study of consumer preferences. The analysis of the competitiveness of the brands of milk on the market of Chelyabinsk region through the calculation of the integrated indicator of competitiveness was completely based on the opinion of end consumers, since the main criterion for the competitiveness of milk is the degree of satisfaction of the real needs of end customers. In the integrated calculation of the competitiveness of milk brands, the opinion of consumers about their sensory properties and other quality indicators, price, consumer packaging and labeling, and brand awareness was taken into account.

By analogy with the previous method, after analyzing consumer preferences, the results obtained are corrected taking into account the weight coefficients of the importance of competitiveness criteria for consumers, and the results obtained are summed up according to the samples. The higher the final score, the higher the competitiveness of the brand is.

When assessing competitiveness by the method of determining the ratio of price and quality, the following work was done. To calculate the complex quality indicator using the qualimetry method, the following generalized expression was used methodologically: 𝐾 = ∑𝑧𝑖=1 𝑚𝑖 𝑘𝑖 (1) was used, where K is a complex dimensionless indicator of the quality of the goods, in points; 𝑘𝑖 ‒ a dimensionless value that characterizes the value of each quality indicator, in points; 𝑚𝑖 ‒ intragroup weighting coefficients of the i-th quality indicators within each group of properties; z ‒ the number of quality indicators.

In the course of the qualimetric assessment of quality, experts determined the weighting coefficients of quality indicators, since they were clearly heterogeneous and unequal. Thus, the weight coefficient was 0.15 for the indicator of appearance, 0.09 for the indicator of consistency, 0.34 for the indicator of taste and smell, 0.12 for the indicator of color, 0.007 for the indicator of density, 0.05 for the indicator of acidity, 0.12 for

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the indicator mass fraction of fat, 0.04 for SOMO indicator (skimmed milk powder), 0.02 for the indicator group of purity.

Next, a direct calculation of the ratio of milk quality, expressed in points, and its price was carried out. The higher the quality-price ratio, the higher the competitiveness of the product is. The study was carried out through a survey of end consumers, during which 100 full-fledged questionnaires suitable for processing were collected (a total of 118 people were interviewed, 18 questionnaires were spoiled). The questionnaire checklist included several standard questions on the study of gender, age and other social characteristics of the portrait of the target audience of milk consumers, as well as questions about their preferences for brands (which became the basis for choosing brands for scientific research within the framework of this article) and a question on reasons for buying a particular brand of milk. The last question was one of the key ones, it became the basis for determining the weight coefficients in a comprehensive assessment of competitiveness. The weighting factors were determined by making a proportion with respect to the mention of a specific criterion.

Thus, the weighting factor should have been 0.26 for price, 0.19 for informative labeling, 0.12 for bright packaging, 0.11 for brand and 0.32 for quality.

In a direct comprehensive assessment of competitiveness, formula (1) was used in the specifics of this method, which is described in one of the scientific works of O. I. Katlishin (Katlishin, 2018).

Results and discussion Within the framework of this article, a study of the competitiveness of the following brands of drinking milk, the most common in the local market of Chelyabinsk region, was carried out: «First taste», «Podovinnovskoye milk», «Chebarkul milk», «New day».

As part of solving the first task, for the purpose of assessing competitiveness by the price-quality method, a point-based expert assessment of the studied milk samples was carried out. Expertstasters were asked to evaluate the following indicators of the studied milk samples on a fivepoint scale: appearance, texture, taste and smell, color, density of milk, as well as its acidity, mass fraction of fat, content of dry skim milk residue and purity group. The results of sensory evaluation of drinking milk samples are shown in Table 1.

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Table 1.

Sensory assessment results.

Number of points Indicator

«First taste» (sample № 1)

«Podovinnovskoye milk» (sample № 2)

«Chebarkul milk» (sample № 3)

«New day» (sample № 4)

Appearance Consistency Taste and smell Colour Density Acidity Mass fraction of fat Skimmed milk powder (SOMO) Purity group Total:

5 5 4 4 4 5

4 4 4 4 2 5

4 5 5 5 4 4

4 5 4 4 5 5

5

5

5

5

4

2

4

5

5 41

5 35

5 41

5 42

The results of such a point rating are not final and informative, since they don’t take into account the weight, the importance of various factors in the overall quantitative assessment of quality.

Therefore, the final comprehensive assessment

of the quality of drinking milk samples was carried out in Table 2, taking into account the weight coefficients of its various indicators developed by experts.

Table 2.

The results of the point assessment taking into account the weighting coefficient.

Indicator

1 Appearance Consistency Taste and smell Colour Density Acidity Mass fraction of fat Skimmed milk powder (SOMO Purity group Total :

Weighting factor

The number of points taking into account the weighting coefficient «First taste» «Podovinnovsk «Chebarkul (sample № 1) oye milk» milk» «New day» (sample № 2) (sample № 3) (sample № 4)

2 0,15 0,09 0,34 0,12 0,07 0,05

3 0,75 0,45 1,36 0,48 0,28 0,25

4 0,6 0,36 1,36 0,48 0,14 0,25

5 0,6 0,45 1,7 0,6 0,28 0,2

6 0,6 0,45 1,36 0,48 0,35 0,25

0,12

0,6

0,6

0,6

0,6

0,04

0,16

0,08

0,16

0,2

0,02

0,1 4,43

0,1 3,97

0,1 4,69

0,1 4,39

Based on the calculations carried out, it can be concluded that sample 3 ‒ «Chebarkul milk» scored the highest number of points as a result of the point assessment. This sample was distinguished by a pronounced taste and smell, the color characteristic of milk was also noted, no complaints were found in terms of physicochemical indicators. Samples «First

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taste» and «New day» scored fewer points, but, nevertheless, are considered samples of excellent quality. «Podovinnovskoe milk» according to tasters is milk of satisfactory quality, this sample received the lowest mark. Using the above data, we calculated the quality-price ratio, which is represented in Table 3.

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132 Table 3.

Quality-price ratio for milk samples.

Samples «First taste» (sample № 1) «Podovinnovskoye milk» (sample № 2) «Chebarkul milk» (sample № 3) «New day» (sample № 4)

Quality indicator in points

Price for 1000 ml, rub.

Price-quality ratio

4,43

64,99

0,068

3,97

62,99

0,063

4,69

57,59

0,08

4,39

56,99

0,077

Based on the data obtained, it can be concluded that among the samples under study, sample № ‒ «Chebarkul milk» has the greatest competitiveness. This sample has excellent quality, while it is one of the most budgetary options, which confirms the ratio of quality and price. The higher this ratio, the more competitive the product is. The lowest competitiveness was noted for sample № 2 ‒ «Podovinovskoe milk».

It should be noted that this sample of milk had criticism in terms of physicochemical indicators, in the expert assessment, it also received the least points from tasters, while by no means being a cheap product.

As part of solving the second task, when assessing the competitive positions of milk brands considered in the article by the method of determining the integrated indicator of competitiveness, a marketing research was carried out using the primary method of a sociological survey. During the survey, among others, the respondents were asked a question necessary to determine the weighting factor: «What influences your choice when buying milk? » The results of marketing research are displayed in Figure 1.

26%

32%

Price

Informative marking 19%

11% 12%

Bright packaging Brand name Quality

Figure 1. Determination of the weighting factor by interviewing respondents.

Thus, the weighting factor was 0.26 for price, 0.19 for informative labeling, 0.12 for bright packaging, 0.11 for brand and 0.32 for quality.

On the basis of group (summary) indicators of competitiveness, an integral indicator of the relative competitiveness of the product is determined. The integral indicator of the competitiveness of a product expresses the

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degree of attractiveness of a product for a buyer.

All respondents were asked to assess the tested milk samples on the Likert scale. The following indicators were assessed: quality, price, informative labeling, advertising, brand. The results of the respondents' assessment of the studied milk samples according to the Likert scale are displayed in Table 4.

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Table 4.

The results of the respondents' assessment of the studied milk samples according to the Likert scale.

Test samples

Indicator

Point

Quality

5 4 3 2 1

Average score

Price

5 4 3 2 1

Average score Informative marking

5 4 3 2 1

Average score Bright packaging

5 4 3 2 1

Average score

Brand name

Average score

5 4 3 2 1

«First taste» (sample № 1)

65 32 2 1 0 4,61 38 41 14 5 2 4,08 72 26 2 0 0 4,70 91 7 1 0 0 4,86 87 11 1 1 0 4,8

«Podovinnovskoye milk» (sample № 2)

«Chebarkul milk» (sample № 3)

«New day» (sample № 4)

54 39 5 2 0 4,45 51 28 20 1 0 4,29 75 23 2 0 0 4,73 42 35 19 1 3 4,1 65 31 2 1 1 4,58

63 29 8 0 0 4,55 49 33 18 0 0 4,31 71 27 1 0 1 4,67 56 33 10 1 0 4,44 74 25 0 1 0 4,72

59 36 4 0 0 4,51 65 31 4 0 0 4,61 71 28 1 0 0 4,70 39 34 22 5 2 4,09 70 24 4 0 2 4,6

The obtained processed data from the respondents on the Likert scale are not informative, but represent a kind of surrogate that needs to be edited using weight factors. Based on the results of the table and using the weighting

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coefficient, an integrated assessment competitiveness was calculated. comprehensive integrated assessment of competitiveness of the studied samples drinking milk is presented in Table 5.

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of A the of

133

134 Table 5.

Comprehensive integrated assessment of the competitiveness of the studied samples of drinking milk.

Average Likert score

Indicator

Weight factor

Quality 0,32 Score taking into account the weighting coefficient Price 0,26 Score taking into account the weighting coefficient Informative 0,19 marking Score taking into account the weighting coefficient Bright 0,12 packaging Score taking into account the weighting coefficient Brand name 0,11 Score taking into account the weighting coefficient Total indicator

«First taste» (sample № 1)

«Podovinnovskoye milk» (sample № 2)

«Chebarkul milk» (sample № 3)

«New day» (sample № 4)

4,61

4,45

4,55

4,51

1,47

1,42

1,45

1,44

4,08

4,29

4,31

4,61

1,06

1,11

1,12

1,19

4,70

4,73

4,67

4,70

0,88

0,89

0,88

0,88

4,86

4,1

4,44

4,09

0,58

0,49

0,53

0,49

4,8

4,58

4,72

4,6

0,52

0,5

0,51

0,51

4,52

4,41

4,49

4,51

Milk «First taste» has the highest competitiveness, the sample № 4 «New day» has a little less competitiveness with a minimum lag behind the leader, the difference with the sample №1 «First taste» was 0.01. The sample № 2 ‒ «Podovinnovskoe milk» has the lowest competitiveness, which can be caused by a number of reasons: poor-quality work of the advertising company, which led to little awareness of the brand, as well as complaints about taste characteristics, which forced the consumer to conclude about this milk as not of high quality.

Consumers rated «First taste» milk as the highest quality of the studied four brands. It should be noted that in the sensory expert assessment, sample №1 received fewer points than «Chebarkul milk», thereby it can be concluded that the opinions of one hundred interviewed respondents (unspoiled questionnaires accepted for work) and the opinions of experts participating in the professional assessment are significant differ. This fact confirms the judgment that the quality-price ratio doesn’t fully reflect the real market competitiveness of the product.

The Sample № 4 has the most attractive price drinking milk «New Day» (56.99 rubles per

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liter). Here the opinion of the surveyed consumers as a whole reflects, albeit somewhat subjectively, the prevailing market conditions.

The most informative labeling, according to the respondents, was sample № 2 «Podovinovskoe milk». We can certainly state that this is the only advantage of this sample, since the labeling contained additional information on the benefits of milk, why, most likely, this sample received the highest score, unlike other samples.

The most recognizable brand with popular advertising is sample № 1 «First taste», which largely determined its leadership in the final results of the study on the integrated assessment of competitiveness. In modern society, such a marketing move as advertising is a powerful weapon in the market for competition of goods.

A brand, as a guarantee of product recognition, also affects the demand for recognizable brands.

Russian scientists V. V. Khadykov, N. E. Astashova, D. V. Kozlenko, who are leading a group of researchers on agricultural competitiveness, have formulated the competitiveness of a product as a degree of actual or potential satisfaction. They have a specific need compared to similar goods on the market (Khaidukov, Astashova, & Kozlenko,

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2021). This definition is almost verbatim accepted by I. Dimitrakaki, who specifies competitiveness in a set of consumer and cost characteristics linked to the specific market and time (Dimitrakaki, 2015).

V. V. Khaidukov, N. E. Astashova, D. V. Kozlenko insist that the competitiveness of the enterprise depends on the competitiveness of the goods produced, which, in turn, forms the competitiveness of the agri-food cluster, which is an important component of competitiveness in general on the world market (Khaidukov, Astashova, & Kozlenko, 2021). P. A. Guryanov is inclined to believe that the main negative factors in the growth of competitiveness of food and industrial enterprises are: 1) a high level of taxation; 2) lack of funds; 3) deterioration and lack of equipment; 4) insufficient demand for the products of enterprises in the domestic market (Guryanov, 2014). A. A. Kiritsa identifies the following obstacles to the development of competitiveness of agricultural products: 1) insufficient development of material and technical equipment of agricultural organizations; 2) a high degree of physical and moral deterioration of funds; 3) a low degree of implementation of new technologies in agricultural activities of enterprises (Kiritsa, 2020).

According to Professor E. P. Golubkov, when studying the competitiveness of a product, it is necessary to take into account its volatility even in one market, depending on the segment and time intervals (Golubkov, 2016).

The authors of this article are most impressed by the reasoned opinion of I. Lifits, who believes that the most adequate indicator of the competitiveness of a product reflects the choice of direct consumers (Lifits, 2018). Moreover, ordinary consumers, in fact and according to the legislation on the protection of consumer rights, are not required to be experts and professionally understand the quality and competitiveness of goods. Therefore, their choice is influenced by aggressive advertising and "promotion" of a particular brand, as well as other subjective factors.

Therefore, Stephen, G., A. Wiemerskizch understand by "competitiveness" the manufacturer's ability to adapt to the client's needs, the ability to satisfy his requirements (Stephen, & Wiemerskizch, 1998).

A. I. Kolobova and O. A. Kosintseva distinguish three main features of milk competitiveness: the ability to meet the necessary needs of buyers;

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ensuring the consistency of price and quality; enterprise leadership (Kolobova, & Kosintseva, 2010). A. A. Volodkina, Zh.V. Domozhilkina, on the basis of their research on the competitiveness of dairy products in such a specific relatively local market as the consumer market of the Republic of Crimea, note the importance of managing both price-forming and quality characteristics of milk produced (Volodkina, & Domozhilkina, 2016).

I. N. Burobkin, E. M. Dusaev, proceeding from the importance of managing the competitiveness of produced drinking milk, emphasize the relevance and necessity of a basic assessment of its competitiveness, while noting the continuity of such a process at all stages of the life cycle (Burobkin, & Dusaev, 2004) Based on the opinions of many studies, the authors of this article formulated their vision based on the use of methods for assessing competitiveness, first of all, by market professionals and product expertise by determining the price-quality ratio (Katlishin, 2018). The second most important author's method of assessing competitiveness is an integrated assessment that takes into account the opinions of consumers obtained as a result of surveys of end consumers (Katlishin, & Panyshev, 2020).

Conclusions An expert qualimetric assessment of the quality of drinking milk of the studied brands showed that the best quality is characterized by «Chebarkul milk» (sample № 3), followed by milk «First taste» (sample № 1). Therefore, if you don’t take into account any more criteria of competitiveness, you can recommend to consumers these particular brands of drinking milk. From the point of view of commodity consulting according to the pure criterion of competitiveness quality/ price, the best is sample № 3 «Chebarkul milk», on the second place is sample № 4 «New Day» and only on the third place is milk of sample № 1 «First taste». It is in this ranking sequence that they should be recommended to consumers.

However, the real market situation revealed a different picture of the competitive positions of the studied milk brands, completely different from the ideal picture recommended by experts after assessing the competitiveness using the price-quality method.

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136 The marketing research conducted by the method of direct sociological survey of direct consumers of drinking milk, in addition to other data not included in the material of this article, helped to identify the most significant criteria for the competitiveness of drinking milk in the market segment of 3.2% fat mass fraction and the geographic local segment of Chelyabinsk region.

These criteria were the price, information content of labeling, attractiveness of packaging, brand recognition and quality (taste and other organoleptic properties).

The most competitive was sample № 1 «First taste». The owner of the best quality-price ratio is sample № 3 «Chebarkul milk». Sample № 3 «Chebarkul milk», according to real consumer preferences, was only on the third place, leaving the sample № 4 «New Day» ahead.

Thus, the results of the integrated assessment of the competitiveness of the studied milk samples differ from the results of the quality-price ratio.

Within the framework of this work, an integrated assessment of competitiveness is a more important and accurate indicator, since, first of all, the opinion of a large number of people surveyed is taken into account, while the qualityprice ratio implies an ideal situation with the optimal choice of consumers. In an integrated assessment, the respondents noted the fact of the high cost of milk «First taste», but besides that, bright packaging and a recognizable brand were noted, which played a key role in determining the competitiveness of milk and even the subjective perception of the level of quality by consumers showed the best results with this particular brand.

On the basis of these results, it is possible to recommend that trade enterprises of Chelyabinsk region, when forming their assortment matrix, explicitly give preference to this particular brand of milk, which will lead to an increase in sales profit.

The company «Chebarkul milk» can be recommended to strengthen the marketing and advertising component in its activities, to bring to consumers (through tastings, promotions, etc.) an understanding of the high quality of its products and the acceptability of its price. The manufacturer of «Podovinovskoye milk» trademark needs to start its work to increase the competitiveness of milk by improving its quality.

Bibliographic references Burobkin, I. N., & Dusaev, E. M. (2004).

Methodological approaches to the management of agrarian organizations. News

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of the Orenburg State Agrarian University, No. 1 (1), pp. 73‒76.

Dimitrakaki, I. (2015). Quality Competitiveness of the dairy enterprises. Economics and Management, No. 11, pp. 26‒33.

Dvinsky, B. M., & Grinevich, A. I. (2015). Dairy industry. Dairy Industry, No. 5, pp. 54‒62. https://elibrary.ru/download/elibrary_23388 002_93174416.pdf Stephen, G., & Wiemerskizch, A. (1998). Total quality management: strategies and techniques proven at today's most successful companies. New-York: John Wiley and Sons. https://archive.org/details/totalqualitymana0 000geor/page/n5/mode/2up Golubkov, E. P. (2016). Fundamentals of marketing: textbook. M.: Finpress.

Guryanov, P. A. (2014). Ways of development of the mining industry in the Russian Federation. Journal of Mining Institute, Vol. 208, pp.

18‒22. https://pmi.spmi.ru/index.php/pmi/article/vie w/5323/3207 Katlishin, O. I. (2018). Assessment of the state and level of financial support for the industry of dairy cattle breeding. Financial Economics, No. 6, pp. 961‒964.

Katlishin, O., & Panyshev, A. (2020). Integrated economic analysis and evaluation of competitiveness of wheat flour of top variety at Perm market. Amazonia Investiga, 9(28), 427-438. https://doi.org/10.34069/AI/2020.28.04.48 Khaidukov, V. V., Astashova, N. E., & Kozlenko, D. V. (2021). Theoretical foundations for ensuring the competitiveness of ensuring the production of agricultural products. Actual problems of modern economics, No. 1, pp.

249‒263. https://elibrary.ru/download/elibrary_44635 405_57049996.pdf Kiritsa, A. A. (2020). The economic potential of leasing in the conditions of modernization of the agro-industrial complex. Economy of agriculture of Russia, No. 7, pp. 27‒34.

Kolobova, A. I, & Kosintseva, O. A. (2010).

Competitiveness of milk production. Bulletin of the Altai State Agrarian University, No. 4 (66), pp.

96‒101. http://www.asau.ru/vestnik/2010/4/Economi cs_Kolobova.pdf Lifits, I. M. (2001). Theory and practice of assessing the competitiveness of goods and services. Moscow: Yurayt-M. Lifits, I. M. (2018). Competitiveness of goods and services: textbook for academic baccalaureate. Moscow: Yurayt Publishing House.

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Morozov, N. M., Tsoi, Yu. A., Kirsanov, V. V., Bakach, N. G., & Perednya, V. I. (2018).

Technical equipment of «smart farm» for the production of milk competitiveness.

Equipment and technologies in animal husbandry, No. 2 (30), pp. 22‒26. https://cyberleninka.ru/article/n/tehnichesko e-osnaschenie-umnoy-fermy-poproizvodstvu-konkurentosposobnogomoloka/viewer Pinkovetskaia, I., Kryukova, L., Arbeláez, D., Rojas-Bahamon, M. (2019). Female Entrepreneurship: Types of Economic Activity. Journal of History Culture and Art Research, 8(2), 253-265.

Popova, A.V., & Bykovskaya, G. V. (2016). The dairy industry ‒ 2016 demonstrates the revival of the market. Dairy industry, No. 5, pp.

16‒31.

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https://elibrary.ru/download/elibrary_25914 428_53615395.pdf Surinov, A. E. (2019). Russia in figures 2019: statistical collection. Moscow: Rosstat.

Vasilieva, I. V. (2016). Regulation of livestock product markets: milk market. Milk processing, No. 10, p.

22‒25. https://elibrary.ru/download/elibrary_27411 390_30320260.pdf Volodkina, A. A, & Domozhilkina, Zh. V. (2016). Management of the competitiveness of dairy production in Crimea. Interactive science, No. 4, pp.

115‒117. https://cyberleninka.ru/article/n/upravleniekonkurentosposobnostyu-proizvodstvamolochnoy-produktsii-v-krymu/viewer Voronov, D. S. (2015). Review of existing methods for assessing the competitiveness of an enterprise. Moscow: Omega.

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DOI: https://doi.org/10.34069/AI/2021.44.08.13 How to Cite: Chervinska, I., Derevianko, O., Chervinskyi, A., Tron, A., Atamaniuk, Y. (2021). The cult of health philosophy in traditional culture of the inhabitants of the Ukrainian carpathians’ mountainous regions. Amazonia Investiga, 10(44), 138-148. https://doi.org/10.34069/AI/2021.44.08.13

The Cult of Health Philosophy in Traditional Culture of the Inhabitants of the Ukrainian Carpathians’ Mountainous Regions* Культ філософії здоров’я у традиційній культурі жителів гірських регіонів Українських Карпат Received: May 20, 2021

Accepted: July 22, 2021

Written by: Inna Chervinska52 https://orcid.org/0000-0003-0745-1413 Oksana Derevianko53 https://orcid.org/0000-0001-5645-6929 Andrii Chervinskyi54 https://orcid.org/0000-0002-2128-196X Andrii Tron55 https://orcid.org/0000-0001-7154-7976 Yaroslava Atamaniuk56 https://orcid.org/0000-0002-1907-2149 Abstract

Анотація

The article highlights the theoretical and applied aspects of health philosophy phenomenon in the traditional culture of the mountainous regions of the Ukrainian Carpathians. Based on the elaboration of philosophical, psychologicopedagogical literature, study of archival materials, ethnographic research, students’ questionnaire, the authors reveal the phenomenon of cultivating healthy lifestyles through the prism of ethno-cultural traditions, types of activities and ways of the population’s life support in the mountainous regions. It is indicated that the phenomenology of human health philosophy in ethno-cultural traditions of the inhabitants of this region is extremely multifaceted, since it contributes to overcoming the boundaries between bodily and spiritual,

В статті розглядаються теоретичні і прикладні аспекти феномену філософії здоров’я зростаючої особистості у традиційній культурі жителів гірських регіонів Українських Карпат. На підставі опрацювання філософської, психологопедагогіч-ної та етнографічної літератури, вивчення архівних матеріалів, власних польових етнографічних досліджень, анкетування студентів, автори розкривають феномен процесу культивування здорового способу життя людини крізь призму етнокультурних традицій, видів діяльності та способів життєзабезпечення населення гірських регіонів. Вказується на те, що феноменологія філософії здоров’я молодої людини, яка увиразнюється в етнокультурних

* The research was carried out within the framework of the implementation of the fundamental scientific-practical theme “Development of the younger student’s personality in the mountain environment” (state registration number № 0113U005200) of the Department of Pedagogy of Primary Education and Creative Educational and Scientific Laboratory of the International Project “Mountain School of Ukrainian Carpathians” Vasyl Stefanyk Precarpathian National University (Ivano-Frankivsk, Ukraine).

52 Doctor of Pedagogical Sciences, Associate Professor, Head of the Creative Educational and Scientific Laboratory of the International Project “Mountain School of Ukrainian Carpathians”, Vasyl Stefanyk Precarpathian National University, IvanoFrankivsk, Ukraine.

53 PhD, Candidate of Philology Sciences, Associate Professor of Vasyl Stefanyk Precarpathian National University, Ivano-Frankivsk, Ukraine.

54 PhD Candidate of Historical Sciences, Associate Professor of Vasyl Stefanyk Precarpathian National University, Ivano-Frankivsk, Ukraine.

55 PhD, Candidate of Philology Sciences, Associate Professor of Vasyl Stefanyk Precarpathian National University, Ivano-Frankivsk, Ukraine.

56 Ph D Candidate of Geographic Sciences, Associate Professor, Head of the Department of Geography and Natural Sciences, Vasyl Stefanyk Precarpathian National University, Ivano-Frankivsk, Ukraine.

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biological and social, individual and global, and includes the integrity of the human personality, the harmony of psychophysical strength, the way of a person’s life, the main parameters of which are work, everyday life, educational and cultural activities, a variety of customs, traditions, human behavior. The methodological bases of the research comprise the results of achievements of modern psychologico-pedagogical schools in studying the uniqueness of the process of interaction of a person with a mountain environment and authentic culture. The research aims at determining the optimal psychological and pedagogical conditions for the effective use of the achievements of ethnocultural traditions of different peoples and ethnic groups living in remote mountainous areas.

Keywords: philosophy of health, region Ukrainian Carpathians, ethnocultural traditions, healthy lifestyle.

традиціях, побуті та звичаях жителів цього регіону є надзвичайно багатогранною, оскільки сприяє подоланню меж між тілесним та духовним, біологічним та соціальним, індивідуальним та глобальним, і включає цілісність людської особистості, гармонію психофізичних сил, спосіб життя людини, основними параметрами якого є праця, побут, освітня, суспільно-корисна та соціокультурна діяльність та поведінка. Методологічні основи дослідження складають досягнення сучасних психологопедагогічних наукових шкіл з вивчення унікальності процесу взаємодії людини з гірським середовищем та автентичною культурою жителів гір. Мета дослідження полягає у визначенні оптимальних психолого-педагогічних умов для ефективного використання надбань етнокультурних традицій різних народів та етнічних груп, що проживають у віддалених гірських районах у процесі формування здорового способу життя сучасної людини. Зазначене дає підстави стверджувати, що філософія здоров’я зростаючої особистості змінюється не лише у часі, але й в просторі, і у його формуванні беруть безпосередню участь люди. Ключові слова: філософія здоров’я, регіон Українські Карпати, етнокультурні традиції, здоровий спосіб життя.

Introduction A nation’s health indicator is a peculiar characteristic of the level of any civilized country that reflects its socio-economic, moral and spiritual development and is the criterion of appropriate management and a leading factor of the effectiveness of its people’s cohabitation and activities. Consequently, the problem of national health, its preservation and improvement was one of the major at all times and historical stages of the society’s development.

The traditional cult of health philosophy, which has been formed for centuries in the culture of the native minorities and ethnic groups, that inhabit the Ukrainian Carpathians, is a certain phenomenon of the modern science. It constitutes a considerable educational potential for further scientific researches and discoveries. The problem of human interaction with geographical environment caused certain challenges in the contemporary world. Such challenges include: socio-economic, ecological, moral-spiritual, cultural, educational, health-caring. According to the priorities, there appeared an urgent need to

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create an innovative methodology for highlighting the process of health preservation and adherence to a healthy lifestyle, which would include the rich experience of mankind and new challenges and realities of modern human existence, taking into account its key needs, interests and wishes. In connection with this, the study of the phenomenon of human health philosophy, which is seen by us through the prism of traditional ethno-culture of the Ukrainian Carpathians’ mountainous regions, has become particularly important.

Literature Review The scientific reflection of the research is aimed at comprehension of how authentic valuable heritage of the regional culture determines the real state and dynamics of the development of health-preserving space of this unique in all aspects and characteristics territory of the Ukrainian Carpathians. The whole galaxy of scientists R. Kaindl “Hutsuls: Their Lives, Customs and Folk Legends” (2000), M. Lavruk

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140 “Hutsuls of the Ukrainian Carpathians (Ethnographic Research)” (2005) sought to learn it more deeply and reveal the phenomenon of its uniqueness in the past century. The analysis of the scientific literature on the defined topic O. Vozniuk (2014), E. Prystupa & V. Pilat (1991) enables us to distinguish the scientists’ views on health and healthy lifestyle, to define their dynamics and sustainability, to correlate various viewpoints, to analyse historical sources and field researches of ethnographers. Some of the Ukrainian national scientists of the Carpathian region such as I. Chervinska & A. Chervinskyi (2020), V. Klapchuk (2009), B. Savchuk (2004) consider the culture of health philosophy of the people who live in the mountains (further – the Goriany) not only from the temporal viewpoint but also from the spatial approaches to its formation and development.

Scientists Yu. Boichuk (2017), O. Vakulenko (2015), O. Blynova & I. Chervinska et al (2020) analyses the phenomenon of “health” in its social and philosophical reconstruction and social and psychological manifestations of professional identity.

Methods and Materials The objective of the study is to reveal the phenomenon of cultivating the philosophy of human lifestyles through the prism of ethnocultural traditions, types of activities and ways of life support of the population of mountainous regions on the basis of philosophical, psychological, pedagogical, ethnographic literature, and the study of archival materials and field ethnographic research in the Ukrainian Carpathian region. During the research the following methods were used: the study and analysis of pedagogical, ethnographic and philosophical literature (summarizing and systematization of information from different sources); elaboration of records from field researches of life and household, traditions and customs of inhabitants of mountainous regions of the Ukrainian Carpathians by scientists, ethnographers, local lore, antiquities collectors, art critics; statistical methods for generalization and systematization of materials, the questionnaire and surveys of different categories of population.

Reference to ethno-cultural traditions of the residents of mountainous areas in order to determine the key principles of the phenomenon of cult health philosophy, according to the specifics of the research object will help to highlight the specified parameters, based on the declared ethno-pedagogical M. Stelmakhovych

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(1997), ethnocultural B. Savchuk (2004), and environmental approach Yu. Manuilov (2008) in more detail.

Results and Discussion Mountains are the area of coexistence of human beings and wild nature and the harsh conditions are expressed in the Highlanders’ vitality, temperament, their ways of life and in their traditional outer world perceptions. Being the carriers of traditional folk culture even in conditions of economic and social crisis, they manifest high vitality and have been distinguished in the last decade because of the notable enlivening of cultural life and spiritual resurgence. However, in conditions of globalization of social-economic processes experienced by the whole civilized world and thus affected by modern technologies, ethnic culture tends to decay (Kibych, 2010: 38).

Human health is a complex phenomenon of global significance, which by the definition of O. Vozniuk (2014) can be considered “as philosophical, psychological-pedagogical, socioeconomic, biological, medical category, as an object of consumption, capital investments, as individual and public value, a phenomenon of systematic character, which dynamically and constantly interacts with the environment” (Vozniuk, 2014: 119). However, the problem is, that not always the latest methods of health improvement can be implemented in the way of human life and activity, as they need a drastic change of the “style” of life, reevaluation of already formed values and patterns of behaviour, etc. This causes some difficulties for the successful implementation of the suggested idea.

“The metabolic value of recreational activities has been considered in recent years as one of the most prominent factors that affect their effectiveness” (Kozhokar & Vaskan et al., 2019).

After all, along with its positive achievements, modern civilization has a negative impact on human health, it changes the nature of its physical activity, causes sedentary lifestyle, deprives the body of life balance, which leads to many problems with the health conditions of the population.

It should be emphasized that the concept of “health” is a widely-spread category, as it is used in various fields of science, where the problems of human existence and activity, functioning and development of its body are explored (philosophy, biology, medicine, sociology, psychology, pedagogy, etc.).

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In particular, the study of human health dependence on different factors and generalization of the results obtained through a questionnaire confirm that the main factors which affect human health, according to the object of our research, should include: 

  

lifestyle and living conditions (environmental conditions, social settings and natural indicators that collectively determine a certain type of personal behaviour, the possibility of feedback) (50 %); environment (geographical location, natural landscape, socio-economic indicators) (20 %); heredity (genetic similarity, body structure, predisposition to certain diseases) (20 %); general condition of health care system (availability of medical institutions, effective medicines, qualitative staff support) (10 %).

The analysis of the study of the situation in the region and the elaboration of the results of the questionnaire (60 respondents living in the mountainous and lowland areas) made it possible to define the risk indicators for the health of a person who resides in the mountain environment.

These include: 

   

contamination of the mountain environment (unauthorized deforestation, dumping domestic waste into mountain rivers, pollution of land); a sedentary lifestyle of young people (hypodynamia, unmanaged digitalization); unbalanced nutrition (lack of healthy diet, GM products); psycho-emotional state (constant stress, overstrain, loneliness, aggression); harmful habits (tobacco smoking, drugs consumption, alcoholism).

The philosophical discourse of the scientific knowledge reveals the ambiguity and versatility of the interpretation of the phenomenon “health of the Goriany” and is considered in the philosophical, axiological and socio-cultural context. In recent years, the world's community is trying to attract researchers’ attention to the problems of ethnic identity, preservation and protection of national cultures of native minorities. The traditional cult of philosophy of a healthy person, formed in the culture of native minorities living in hard-to-reach, remote natural environments, is of certain interest for modern science, as it reveals considerable educational potential for new scientific researches. One of the http:// www.amazoniainvestiga.info

solutions to the outlined problem is to draw researchers’ attention to the ethno-cultural traditions of the formation of a healthy person’s cult philosophy by the inhabitants of the Ukrainian Carpathian region, “a kind and basis of which is a healthy lifestyle, based on the traditional principles and philosophy of the Ukrainian people” (Boichuk, 2017). After all, realizing the importance of cultural and historical heritage and the ability of a young person to orient well in the modern socio-cultural space, contributes to the preservation and conscious application (under new conditions and realities of the society) of the mountain population’s life experience for the organization of a healthy lifestyle. Because it is the cultural and historical heritage that reflects the whole life experience of the people, preserved in traditions and customs.

“A meaningful organization of leisure can serve as a significant stimulus for harmonious forming (in particular, morphological and functional, psychological and social) a young generation.

Individual forms of physical, social or intellectual activity effectively influence an educational process. At the same time, dynamic changes in the modern world determine both positive and negative phenomena in the lives of children and young people. Purposeless and irresponsible spending of time brings forth phenomena of anti-culture, alcohol abuse, hooliganism, drug addiction, gambling, deviant behavior, etc.” (Budnyk et al., 2020: 495).

In recent years, the tendency to worsen the general condition and indicators of public health prevails in Ukraine. In some way it is caused by complications of ecological situation (harmful atmospheric emissions, deforestation, annihilation of animals, violation of ecological balance of territories), widely-spread popularization of health destructive stereotypes of behaviour (drug consumption, tobacco smoking, sedentary lifestyle), reduction of quality and professional medical services availability for socio-unprotected groups of population.

It should be mentioned, that a young person’s residing in urban space of a large city, significantly reduces his/her motor activity, and on the contrary, living in a mountain environment makes a person work physically more, move, cover considerable distances (the average walking distance of a student going to a mountain school is 7-10 km daily), climb high mountains, steep slopes and so on.

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141

142 activity falls on the mountainous regions – 50,9 % and 7 % respectively, which together makes up – 57,9 %. Conversely, the amount of time spent on motor activity from 1 to 5 hours is 61 % in urban space in Table 1.

The results of our survey, which are presented in Table 1 and in Comparative Figures 1 and 2, show that motor activity indicators in urban areas of a big city and in the mountainous regions are different. Most of the time (from 5 up to 10 hours and from 10 up to 15 hours) allotted to motor

Table 1.

Indicators of motor activity (time allotted in urban space of a large city and time allotted in mountainous regions). Source: the authors Time allotted to motor activity in urban space of a large city from 1 to 5 hours – 61,0 % from 5 to 10 hours – 35,6 % from 10 to 15 hours – 1,7 % above 15 hours – 1,7 %

in the mountainous area from 1 to 5 hours – 36,8 % from 5 to 10 hours – 50,9 % from 10 to 15 hours – 7 % above 15 hours – 3,5 % difficult to answer, as I seldom visit the mountainous regions – 1,8 %

Figure 1.

Figure 2.

Figure 1 & 2. Comparative figures (diagrams) showing the time allotted to motor activity in urban space and the time allotted in mountainous regions. Source: the authors.

Under the new socio-cultural realities of the Ukrainian Carpathian region development, health-preserving activity of its inhabitants, which is based on the prevailing in the society understanding of the cult of health philosophy, becomes particularly important. Though it cannot properly solve the problem of forming responsible attitude to their own health among the growing generation, not only as a personal value, but also as the valuable heritage of the community, region, country, humanity in general.

significance of these fundamental values of mankind, which raises many strategic issues related to the spiritual, moral and physical condition of a young man’s life, to knowledge and the use of the best achievements of traditional cultural healthpreservation in the life of inhabitants of mountainous regions.

One of the reasons for this crisis is that only medical and biological model of health has been realized in the youth environment for many years, which somewhat varies from modern socio-cultural principles of “health” phenomenon interpretation.

However, it should be mentioned that in recent years there has been a certain impairment of the

1.

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In the context of the problem of our research we will analyze the students’ answers to separate questions of the questionnaire: “What, in your opinion, is healthy lifestyle based on?”

What, in your opinion, is healthy lifestyle based on (the respondents were able to choose several options from the four suggested indicators): 52 (86,67 %) on the reasonable use of its life potential, as well as observing the scientifically reasonable recommendations of the World Health

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2.

Organization and other medical organizations; 15 (25,00 %) on family traditions and values; 9 (15,00 %) on the traditional principles and national philosophy of the Ukrainian people; 8 (13,33 %) on medical indicators; What indicators are traditionally attributed to a healthy lifestyle of the inhabitants of mountainous regions: (the respondents were able to choose several options from the five suggested indicators): 58 (96,67 %) physical activity, regime of the day, work and rest; 33 (55,00 %) quality of food; 30 (50,00 %) mental health and emotional stability; 23 (38,33 %) observance of family and religious traditions; 5 (8,33 %) the opportunity to travel and buy expensive things. In order to study the peculiarities of the phenomenon of human life philosophy, through the prism of ethno-cultural traditions, activities and ways of the population of mountain regions of the Ukrainian Carpathians’s life support, we conducted a questionnaire on the topic ‘Preservation and relevance of observance of traditions of healthy lifestyle by the inhabitants of mountain regions of the Ukrainian Carpathians’, in which 60 respondents participated (the students of two groups of Vasyl Stefanyk Precarpathian National University).

In the context of the problem of our research we will analyze the students’ answers to separate questions of the questionnaire. The results of the questionnaire showed that respondents only partially possess the knowledge of healthy lifestyles. While defining indicators of healthy lifestyle and traditional factors that characterize the healthy lifestyle of the Goriany they noted different priorities. In the first case – it is the use of healthy food, and in the second – physical activity, the regime of the day, work and rest.

According to the scientists, “the health situation of the residents in 27 mountain districts of the Ukrainian Carpathians is deteriorating, “due to the insufficient knowledge of fundamental laws of rational formation, preservation and strengthening of their health throughout life among the majority of people, because of neglectful and often irresponsible attitude to this unified ontological value, which nature rewards a person together with life” (Boichuk, 2017).

Health is a certain phenomenon in the philosophy of personality formation. However, in modern life realities (globalization, informatization, digitalization, military conflicts... and other

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factors influencing its state), the practice of solving the complex problems related to its protection and preservation, appeals to the analysis, which affects not only the socio-cultural or individual level, but also requires research on the theoretical-methodological level.

In the modern paradigm of knowledge the way of life is defined as steady, which appeared under the influence of social, cultural, material and professional circumstances, lifestyle, that manifests itself in the norms of communication, behaviour, mindset, traditions (Boichuk, 2017).

From philosophical position the accent is placed on the socio-economic, educational and cultural, psychological and pedagogical, socio-cultural components of the category “lifestyle”. It determines the essential value of these components in the process of forming a person’s individual life style, with the authenticity of socio-cultural space and the way of interaction between man and nature. After all, it (style), according to M. Zubalii (2014) “is personified and determined by historical, national traditions, received education and personal inclinations” (Zubalii, 2014).

On the basis of generalization of the research results (scientific publications, archival documents, field researches, ethnographic expeditions, recordings of Hutsul folklore, etc.) in the context of solving this problem, it is possible to define such philosophical and psychologico-pedagogical approaches to the analysis of the personality health phenomenon:        

emphasis on the socio-cultural component of the phenomenon of health; disclosure of natural-scientific content of the phenomenon of health; knowledge of different approaches to the interpretation of the phenomenon of health, in order to use them in practice; analysis of medical and biological indicators of the phenomenon of health during the organization of educational process; disclosure of the lingvo-didactic content of the health phenomenon; description of the moral and ethical approaches to the process of forming the phenomenon of health; taking into account ecological and demographic indicators of the phenomenon of health; analysis of spiritual and religious interpretation of the essence of the health phenomenon philosophy.

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143

144 The analysis of the above indicators gives grounds to confirm that the essence of the concept of “human health” as medico-biological, socio-philosophical, psychological and pedagogical category includes the specifics of social relations, socio-cultural conditions of life and natural geographical factors. Accordingly, the universal phenomenon of health as a form of harmonious relations between man and nature, human and society is determined. Researcher R. Vorobiov (2013) introduced to the scientific circulation the concept of health “as the most optimum personal development in the environment”. At the same time, the scientist emphasizes that “health is a phenomenon that defines the life quality and strategies of everything that exists and provides harmonious relations between man, nature and society” (Vorobiov, 2013). The determined indicators give an opportunity to outline the basic criteria of the cult of healthy human life, formed on the key values of traditional culture, and thus, to build a kind of health triad: positive thinking – proper nutrition – optimum motor activity.

The phenomenon of the cult of healthy lifestyle, the uniqueness of the customary culture of health-preservation as the authentic life philosophy of the Goriany requires a special analysis to use its best practices in the educational process of the institutions and in organizing the inhabitants’ vital functions in other regions of the country. We are convinced that wellness tasks should be implemented in the educational space (family, educational establishment, extra-school education, church) with the direct participation and interaction of parents, pedagogical staff and the public (familysocio-school interaction) based on the principles of partnership pedagogy. Unfortunately, we may observe the tendency of lack of life landmarks and readiness for independent activities among young people; they are characterized by information of interests and initiatives, low level of motor activity, inability to exercise.

We adapt approaches and reflections of this groundwork to the subject and objectives of our research. There is no denying the fact that every nation has its own socio-cultural experience, which is conveyed from generation to generation as a valuable legacy of the older generation to the younger. Due to some ethno-cultural traditions, craftsmen’s continuity, the Goriany support the connection of times and generations, which in some way helps their region and country to avert the cultural disaster. The formation of the health philosophy in ethno-cultural traditions of the mountainous regions’ inhabitants – is a complex

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centuries-old process of reproduction in the following generations the best qualities and features that were produced and tested by the mountain inhabitants during the whole period of their existence. Their basic philosophical and pedagogical purpose is to direct the younger generation to personal development and socially useful way of self-improvement and determination of value priorities.

Almost all ancient cultures conveyed to our days the idea of a healthy lifestyle embodied in art, rituals and symbols in the inseparable unity of man and nature. This unity is reflected in the philosophers’ thoughts from antiquity to the present day. Folk knowledge about the physical development of a person and his bodily education among the inhabitants of mountainous regions was rationally thought of and related to difficult conditions of the mountain environment. Folk traditions and customs formed throughout the ages were the defining factors that contributed to the adequate bodily and spiritual education of a person, forming a healthy nation through traditional folk healthy lifestyle.

In Goriany’s families the formation of a cult of health philosophy as a vital philosophy, started from an early age, by involving children to participate in family customs, some labour and fortifying against the cold (girls assisted the mother in cooking food, cleaning the house, and the boys worked with the father in the field, helped with the family traditional crafts). It formed the cult of the native home, respect for family, family traditions, love of the native land that in future constituted a basis for further becoming of a young person a part of his community, land and nation. Today, the science has proved the rationality of the national knowledge, firmly established in the customs of the Goriany associated with the human health.

The heritage of folk physical culture of mountainous regions’ inhabitants is an inexhaustible source of knowledge, which was formed during the whole history of their livelihoods. Knowledge of spiritual, moral and mental, bodily nature of man, the need for its understanding and constant improving is one of the most significant conditions of personal development. Cohesion and resistance are inherent in the customs and traditions of people living in high-mountainous areas which the residents of flat areas mostly lack.

Such characteristics are caused by the ideological outlook, life philosophy of the Goriany and belonging to a particular region. It should be noted that in the Goriany’s beliefs and folklore

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there is a lot of interesting information on medicine, folk treatment, nobility, connected with the practice of economic activity, everyday life, training of physical endurance and stability.

Calendar and household rituals, which are observed by the Goriany in their lives, are the ground for combination and comparison of individual and group identity, because a person through various rituals selects the components which are the closest to him. In the mountains, this manifests itself during the performance of folk dances (‘Gutsulka’, ‘Resheto’, ‘Arkan’, ‘Gutsulskii ples’, etc.) celebrating various religious holidays, in particular Christmas and Easter. It is vividly seen in the youth’s ignition of ritual fires, caroling, joint performances of ritual songs, dances, various exercises, the organization of competitions on agility, speed, accuracy, etc. Many folk games reflect the labour activities of the Goriany, ‘Sow the Cucumbers’, ‘Oak’, ‘Bokorashi’, ‘Koval’, etc.

In the Steppe Ukraine, where there is a lot of equal space, games with a wide field for playing activities were distributed, whereas in mountainous areas prevailed games to balance, drag a rope, jump and throw objects to the target (‘Pull the Beech’, ‘Throw an Axe’, ‘Pull the Rope’). The effectiveness of folk traditions regarding the Goriany’s attitude to health and healthy lifestyles contributes to the formation and preservation of collective memory of its predecessors, provides the transfer of their achievements through the educational process and upbringing of growing generations as a sort of ethno-pedagogical code, which transformed into a complete system of knowledge of a certain people. The basis of the traditional culture of the Goriany, according to E. Prystupa & V.Pilat (1991), is “the organic combination of rational and irrational information from various branches of knowledge acquired during the millennial historical development of the nation” (Prystupa & Pilat, 1991).

The traditional system of national knowledge about human health includes: traditional

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medicine and veterinary (healing, curing, sayings), the People’s calendar (‘Hutsul Kalendar’), folk omens and beliefs about weather phenomena (Lunar Kalendar), folk knowledge about certain professions and handicrafts, national pedagogy (ethno-pedagogy), knowledge about folk clothing (‘Hutsul Uberia’). Among these components of the national knowledge we should note the whole layer of knowledge and centuries-old experience, which relate to specific patterns and rules of human upbringing related to its glazing and rehabilitation. Peoples heritage popularizes the traditional cult of health philosophy among the inhabitants of mountainous regions, characterizes the patterns of human life through the prism of social, moral, spiritual and mental manifestations of man, focusing on the formation of human bodily indicators (physical perfection and biological activity). The analysis of authentic folk traditions of the Goriany, related to health, healthy lifestyle and everyday activity, certifies great potential of the Goriany’s cult of vital philosophy, which was formed in modern socio-cultural space on the basis of customary culture, traditions and rituals.

The Goriany live close to nature, so the whole life cycle of their activities and work, the formation of worldview are connected with natural phenomena. The most typical feature and the result of the beliefs of the Goriany was the cult of nature and health. Life in a unique nature contributed to the formation of a harmonious cheerful outlook among young people, strengthened their connection with the land, forest, valleys, rivers and lakes. Hard daily work (sheep breeding, cattle breeding, beekeeping, farming and other activities) alternated with various entertainments during religious holidays and free-from-work days.

National pedagogical traditions were manifested in all spheres of human life and activity, transforming in the worldview and reflecting in the system of values of the mountainous regions’ inhabitants. Determining the priority of lifestyle indicators that affect their health, respondents' answers were distributed as follows in Table 2.

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145

146 Table 2.

The priority of lifestyle indicators that affect Inhabitants of the Ukrainian Carpathians’ Mountainous Regions health. Source: the authors.

Indicators that affect health healthy diet (consumption of healthy ecological food) and adherence to relevant body mass indexes: exercise, healthy rest healthy sleep and time allotted to work and rest bad habits (smoking, alcohol, etc.) habit of self-treatment by folk methods education (mental development) and application of modern health-saving technologies

1 st place

2 nd place

3 rd place

4 th place

5 th place

6 th place

34

11

9

4

1

1

16

25

11

6

1

1

24

10

18

3

5

0

13

7

6

10

7

17

1

11

5

4

26

13

11

6

10

14

9

10

Figure 3. Indicators of a person's lifestyle that affect his or her health level. Source: the authors.

Research and experimental work has confirmed the efficiency of implementation of the ethnopedagogical context in the process of knowledge acquisition on the formation of health of young generation. Thus, most students demonstrate a conscious perception of the domestic achievements on the cultivation of health, substantiate the significance of ethnocultural traditions and the experience of the inhabitants of mountainous territories (Gorian) on issues of health preservation and strengthening for contemporaries, evaluate them as significant in the formation of scientific theory and health-preservation practice. They contribute to the implementation of an effective potential of the environmental approach (mountain environment, climatic conditions, highlands, the length of territories) in the development and preservation of young people’s health. Residents of mountainous areas of the Ukrainian Carpathians “belong to those nations in Europe, whose rites are one of the oldest and richest (Stelmakhovych, 1997: 42).

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The results of the questionnaire confirm that folk traditions of the people inhabiting the mountainous regions of the Carpathians, who promote children health culture, can be effectively used in modern branches of healthpreservation (propedeutically-hygienic, medicoehabilitation, еcologico).

Acknowledgments *We are very grateful to all the Hutsuls who kindly shared their knowledge and practices with us. Information has been provided during ethnographic practice by craftsmen famous in Ukraine and abroad, performers on traditional Hutsul musical instruments, Mykhailo Tafiichuk, the head of the family instrumental ensemble and Roman Kumlyk the founder of the unique museum of musical instruments. (vil. Bukovets, Verkhovyna District, Ivano-Frankivsk Region).

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Conclusions Phenomenology of human health philosophy in ethno-cultural traditions of the inhabitants of the Ukrainian Carpathians is extremely versatile because it contributes to overcoming boundaries between bodily and spiritual, biological and social, individual and global. “Using the results obtained in practice and further exploring the potential of the Ukrainian Carpathian region will allow us to trace the impact of certain factors (both internal and external ones) on the formation of regional socio-cultural environment in order to extrapolate the results of the research to the study of other mountainous regions of Europe and the world” (Chervinska & Chervinskyi, 2020: 110).

Cultural and historical epochs and centuries-old experience of the people define the essence of health and healthy lifestyles for the population of some regions. In this period of transformational change, the modern personality finds itself in a situation that causes an identity crisis, which manifests itself in negative independence, reduced efficiency, lack of life plans, frustration with basic needs, blurring of values, uncertainty and disintegration.

We tried to focus the attention on those key aspects that remain stable for centuries and are essential for today’s generations. They include: the integrity of the human personality, which manifests itself in the interrelation and interaction of mental and physical strength of the body; the harmony of psychophysical strength, which increases health reserves, that manifests itself on the physical, psychological and sociocultural levels; a way of life of a person, which at all times is interpreted as a kind of human activity, the main parameters of which are work, everyday life, educational, socially-useful and cultural activities, various customs, traditions and a person’s behaviour. Respectively, on condition of successful organization and qualitative aims content of these factors, which, in a complex, will promote human health, we may confirm the implementation of a healthy lifestyle. Prospects for further research may be the study of the process of life-aim values formation of the Ukrainian Carpathians’ residents.

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URL: http://revistainclusiones.org/pdf13/9%20VO L%207%20NUM%20ESPECIALJULIOSE PTIEMBREEE2020REVINCLUSIOO.pdf Web of Science Group Boichuk, Y. (2017). General Theory of Health and Health Preservation: A Collective Monograph. Kharkov : View. URL: http://hnpu.edu.ua/sites/default/files/files/Ka f_zdor_ta_korr_os/Zagalna_teorija_zdorovia _i_zdorviazberegennja.pdf Budnyk, O., Mazur, P., Kondur, O., Smoliuk, S. & Palahniuk, M. (2020). The problem of spare time of teenagers in mountain regions of Poland and Ukraine. Revista Inclusiones, 7, 493–507.

URL: https://revistainclusiones.org/index.php/inclu /article/view/1350 Web of Science Group Chervinska, I. & Chervinskyi, A. (2020). Sociocultural educational environment of the Ukrainian Carpathian region as a subject of interdisciplinary discourse. Human Studies.

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URL: https://cyberleninka.ru/article/n/kontseptualn ye-osnovy-sredovogo-podhoda-v-vospitanii Prystupa, E. & Pilat, V. (1991). Traditions of Ukrainian National Physical Culture. Part I. Lviv: Troyan. URL: ISBN 5-7707-1365-8 http://repository.ldufk.edu.ua/handle/346060 48/7243 Savchuk, B. (2004). Country Ethnology.

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http://enpuir.npu.edu.ua/handle/123456789/ 11630 Vorobiov, R. (2013). Health as an Ontological Phenomenon. Saratov University. The series: Philosophy.

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DOI: https://doi.org/10.34069/AI/2021.44.08.14 How to Cite: Rebrina, L.N. (2021). Semantic and motivational characteristics of enmity vocabulary: the relevance of structural motivation. Amazonia Investiga, 10(44), 149-159. https://doi.org/10.34069/AI/2021.44.08.14

Semantic and motivational characteristics of enmity vocabulary: the relevance of structural motivation Семантико-мотивационная характеристика лексики вражды: значимость структурной мотивации Received: August 6, 2021

Accepted: September 6, 2021

Written by: Rebrina L.N.57 https://orcid.org/0000-0003-0512-980X ResearcherID: G-6420-2015, Scopus Author ID: 56241972800, SPIN: 3971-1615 Abstract

Аннотация

The object of the research includes the actual designations of the subject with the semantics of enmity, formed with the active foreign language word-formation components, functioning in Russian-language online media and Internet communication in 2000-2020. The approaches used include system-centric and text-centric, semasiological and onomasiological approaches, motivational, definitional, functional-semantic and contextual analysis. It analyses the syntagmatics, semantics, word's inner form, type of motivation, motivational form and meaning, motivational and classification features, lexical and structural motivators, ways of discursive actualising the motivational relations of the studied words. It is shown that selected lexical units with the component –phobe, -phrenic, saur, -down, -hater, -oid, -oholik, -path, -man, (e)rast belong to the vocabulary of enmity depending on their significative or pragmatic component, implement a negative assessment of intellectual, psychological, moral qualities of the subject. The actual vectors of developing the nominal vocabulary of enmity in the Russian language are determined by integration, intensification, internationalization, intensification. The relevant word-forming tendencies in the studied group of nouns are highlighted – the frequency of word composition, non-usual ways of word formation, nominations by analogy, the increasing role of onyms, the activity of word-forming components

Объектом исследования выступают актуальные обозначения субъекта с семантикой вражды, образуемые с участием активных иноязычных словообразовательных компонентов, функционирующие в русскоязычных онлайн-СМИ и интернет коммуникации 2000-2020 гг. Используются системоцентрический и текстоцентрический, семасиологический и ономасиологический подходы; мотивационный, дефиниционный, функционально-семантический и контекстуальный анализ. Анализируются синтагматика, семантика, внутренняя форма слова, тип мотивированности, мотивационные форма и значение, мотивировочные и классификационные признаки, лексические и структурные мотиваторы, способы дискурсивной актуализации мотивационных связей исследуемых слов. Показано, что отобранные лексические единицы с компонентами -фоб, френ, - заврr, -даун, -хейтер, -оид, -(о)голик, пат, -ман, -(е)раст относятся к лексике вражды по сигнификативному или прагматическому компоненту их значения, реализуют негативную оценку интеллектуальных, психологических, моральных качеств субъекта. Определены актуальные векторы развития именной лексики вражды в русском языке – интеграция, интенсификация, интернационализация, интенсификация.

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Doctor of Philology, Professor of the Department of German and Roman Philology, Volgograd State University, Russia; Leading research scientist of the Department of Mass Communication Languages, Ural Federal University named after the First President of Russia B. N. Yeltsin, Russia.

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with a negative rating. It is demonstrated that motivational relations of lexemes are discursively implemented through the actualization of lexical and structural motivation, the paradigmatic value of lexemes, the subjective modality that the addressee uses, his/her individual motivation of words.

Keywords: internet communication, motivational relation, motivology, nominal derivation, semantics of enmity.

Выделены релевантные словообразовательные тенденции в исследуемой группе существительных – частотность словосложения, неузуальных способов словообразования, номинации по аналогии, возрастающая роль онимов, активность словообразовательных компонентов с отрицательной оценкой. Демонстрируется, что мотивационные связи лексем дискурсивно реализуются посредством актуализации их лексической или структурной мотивации, парадигматической значимости, эксплицируемой адресантом субъективной модальности, его индивидуальной мотивации слов. Ключевые слова: именное словообразование, интернет-коммуникация, мотивология, мотивационные отношения, семантика вражды.

Introduction Motivation is a fundamental mechanism of language that didn't get a proper reflection at the moment. Motivation is a global, universal category closely connected with onomasiology, semasiology, syntagmatics, paradigmatics, epidigmatics, linguistic consciousness, a variety of extra- and linguistic factors (Blinova, 2012; Cano, 2020; Dobrovol'skij & Piirainen, 2018). Its study is an urgent task in the context of an integrated understanding of the socio-historical, socio-cultural, ontological, psychophysiological and gnoseological, pragmatic conditionality of language (Blinova, 2012; Morozkina, Rusinakova & Ivanova, 2020; Cano, 2020; Gombocz, 2013, pp. 45-56; Olostiak, 2019).

Nominative-motivational models determine the functioning of the lexical-semantic systems of language (Galitsyna, 2018). Nominativemotivational relations characterise the reflective structure of language and sign, the relationship between linguistic and mental categories, the conditionality of linguistic facts by nonlinguistic ones, the relationship of actual language facts with antecedents (Khazimullina, 2015; Anscombre, 2019; Balestero, Clempi, & Da Costa, 2020; Chishman, dos Santos, & Martins, 2020; Detry,2017; Rebrina, 2020; Ulrich, 2020; Umbreit, 2010). Modern internet communication shows widespread enmity, the aggression of various kinds, which makes for active neological processes in this sphere. The above-mentioned and the social significance of the study subject (modern enmity vocabulary, reflecting current social processes in society) makes the study of semantic and motivational

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characteristics and development trends of the relevant lexical subset of the Russian language a demanded and promising prospect.

The objective of our research is as follows: 1) to determine the composition of the paradigmatic subset of new Russian-language subject designations with enmity semantics, including a foreign-language word-formation component, functioning in online media and Internet communication in 2000-2020; analyze the motivational, semantic, syntagmatic characteristics of these units; 2) to systematize the selected subject designations according to semantic features and structural motivators; 3) to reveal the role of structural motivators in forming enmity semantics and motivational meaning of units; 4) to identify and characterize current trends in the development of enmity vocabulary in the Russian language on the example of the studied group of lexical units; 5) to describe the current word-formation trends within the group of new subject designations with the semantics of enmity; 6) to demonstrate relevant ways of discursive disclosure of motivational relations and the word's inner form of the studied neolexemes of enmity. Criteria for the selection of language material include a) the presence of the semantic feature "designation of the subject" in the meaning of the lexeme and the belonging of the word to the semantic field "Enmity" due to the significative or pragmatic component of its meaning; b) the functioning of the lexeme in online media, Internet communication in 2000-2020; c) the presence of

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a foreign word-forming component and its activity in developing new subject designations with the semantics of enmity; the significance of structural motivation in forming the semantics of the unit, reflected in the repeated classification feature, expressed by the structural motivator of a series of units.

Theoretical Framework In Russian linguistics, the foundations of the concept of motivology as a science at the intersection of semasiology, onomasiology and synchronic derivation originated in the works of O.I. Blinova (see Blinova, 2012). Motivology interprets motivation as a connection between the form and content of a language unit realized by native speakers, the perceived derivability of its meaning from the meanings of other units, which is based on structural-semantic relationships and is established in contrast to the derivatological approach through the analysis of actualized in speech (in texts or metatexts) motivational relations of units, rather than by studying relations between lexemes at the derivational level (Yurina, & Zhakupova, 2020).

The motivology interprets the speech actualisation of motivational relations between units as a fact of linguistic/metalinguistic consciousness, as an awareness of the link between form and meaning of a unit due to its lexical and structural correlation with other words of the language.

The concept of motivology includes descriptive motivology, which studies motivation in a specific language and in a specific period (it is implemented in most motivological studies); comparative motivology, which studies the universal and the variation in the mechanism of motivation, motivational reflection in different languages in a specific period; dynamic motivology, which addresses the change of motivation of language units in different time slices. In the framework of motivology there are different research aspects: ontological, methodological, functional, lexicographical, source study and historiographical. (see Blinova, 2012; Khazimullina 2015; Kishina, 2011; Olostiak, 2019; Yurina, & Zhakupova, 2020).

Researchers actively implement a combination of system-structural and psycholinguistic approaches in motivological research, aiming to study through directed psycholinguistic experiments the process of motivation as a lingua-psycho-mental one.

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The existing plethora of motivological research confirms the productivity of motivational theory in theoretical, methodological, and applied terms (for a detailed review of works and achievements of motivational theory, see Blinova, 2012).

The current trends demonstrated in the development of motivology are the appeal to linguistic macroobjects aimed at revealing the motivational mechanism and mental structures embodied in language signs: to nominativemotivational models and motivational relations within semantic, pragmatic categories, in thematic, lexical-semantic groups of vocabulary, in groups of neo-lexemes; to the image structure of language; to the system of motivationalassociative fields in different languages and their cognitive structure, etc. (see Yurina, & Zhakupova, 2020).

In the 21st century there are a number of scientific works devoted to the problems of neology in the Russian language, reflecting the study of new words in different aspects and from different positions: the main current trends and unusual ways of derivation, modern borrowings, the functions of neo-lexemes in various communicative practices, the difficulties of their lexicography, derivational families of neolexemes with homonyms, the implementation of evaluation by neologisms, neological lingvocreativity, etc. (for review see Yuxin, 2016; Kozlovskaya, 2020). Addressing research macro-objects (different paradigmatic subsets of units, neological lexical-semantic categories) is also a current trend in the development of neology. The many neo-nominations with the semantics of enmity that are emerging today and function in Internet communication as a reflection of the needs and linguistic consciousness of native speakers attracts the attention of linguists.

Methodology The object of research is actual lexical units (LUs) with enmity semantics, used to designate a subject in media and internet communication in the period of 2000-2020. They implement different types of motivation but are united by the presence of foreign derivational components and the special role of structural motivation in forming the semantics of enmity and motivational word meaning.

We include the selected neo-lexemes in the studied lexical paradigm according to their significative and/or pragmatic components of meaning.

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152 The approaches used include system-centric and text-centric, semasiological and onomasiological approaches, motivational, functional-semantic and contextual analysis.

Motivation is understood as a lexical-semantic category; a nuclear, systemic, structuralsemantic, independent property of a word, consisting in the relative interdependence in the synchronic and diachronic plans of formal, semantic, functional and meaningful characteristics of LUs in the language system and in speech (see Kishina, 2011; Khazimullina, 2015; Ulrich, 2017; Yurina, & Zhakupova, 2020). This property of a word reflects the linguistic knowledge, perceptions and needs of native speakers.

The lexical and structural correlation of the units determines the rationality of the form-content relationship. Motivationally related units (motivated word/motiveme; motivational words/ lexical motivators (LM) and structural motivators (SM)) form a motivational paradigm, representing (along with motivational contexts) the lexical unit as an element of linguistic, metalanguage consciousness (Blinova, 2012).

The internal word form (IWF) is seen as a concentration of systemic lexical relations, the morpho-semantic structure of a word that reflects its motivation and "interpretation" of reality.

IWF combines motivational form (MF) and motivational meaning (MM). MF are meaningful, motivation-driven component(s) of the material envelope of a LU. MM is the synthetic meaning of the motivational form. In this case, LM expresses a motivational attribute / features (MA) and SM expresses a classification attribute / features (CA) (Blinova, 2012).

Analysing the IWF of constituents in a lexical paradigm allows characterising the MA, CA, nominative-motivational patterns typical of a particular subject area. IWF can be living, i.e. realised by contemporary speakers; dead, i.e. not realised by linguocultural community members; metaphorical, i.e. expressing the meaning of similarity; variant, i.e. having different MF and MM; lexicalised, i.e. including MF component(s) not being explained by native speakers.

Motivation can be absolute (correlation with extra-linguistic reality) and relative (lexical, structural correlation with other words of the language as LM, SM); complete (the connection of an LU with LM and SM is realized) or partial (only the connection with either LM or SM is realized); phonetic (the connection with the acoustic image of the denotation is realized),

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morphological (the connection with other wordsmotivators is realized) and semantic (the connection between form and meaning of an LU is mediated by semantic derivation) (Blinova, 2012).

Results and Discussion I.

Due to the semantic “contribution” of the component to the semantics of the motiveme, we classify LUs with the phobe component as the studied subset, attributed to the vocabulary of enmity based on the significative component of their meaning. Phobe is a foreignlanguage morpheme (Greek) that contributes the meaning "averse, enmity and fear of that which is named in the first part of the word" (Efremova, 2000). According to the corpus data, one of the most frequent LUs for the period is the noun Ukrainophobe (subgroups "National discord"/"Incitement to hatred"), which refers to the vocabulary of enmity based on denotative signs in the meaning.

Ukrainophobe. MF: UKRAIN/o/PHOBE or UKRAINOPHOBE. LM: Ukraine, Ukrainian, Ukrainophobia. SM (UkrainophobeUkraine / Ukrainian): yudoPHOBE, russoPHOBE; CA: "averse, enmity towards the named first component". MA: "a subject related to Ukraine/Ukrainian" or "a subject associated with Ukrainophobia". MM: "one who is enmity towards Ukraine" / "one who is enmity towards everything Ukrainian" or "one who is a supporter of Ukrainophobia" (in angle brackets there are elements that are not explicit in the MF, IWF, but necessary to form MM as an expression). According to the Internet communication data, the LU Ukrainophobe correlates with several lexical motivators, which causes the existence of variants of MF and MM. The IWF of these LU is living, non-metaphoric, non-lexicalised, variant (in the order of actualisation frequency: Ukrainophobe Ukraine; Ukrainophobe Ukrainian; Ukrainophobe Ukrainophobia); motivation is complete, relative, morphological. Example of motivational context: People who oppose everything Ukrainian, ... Ukrainian statehood, self-determination of the Ukrainian nation are called "ukrainophobes" ... (Berdnik, 2011).

According to the LEEDS corpus, LU forms collocations with the adjectives odious, fierce terry. As a syntactic subject, LU is most often combined with the verbs to persuade, to resent,

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to destroy. The LU-partners point to the attributes of the denoted subject "irreconcilable", "causing negative emotions", "emotional about something/someone".

We classified the following LUs as enmity vocabulary based on pragmatic components in their meaning.

II.

The second group may include the LUs with the common semantic attribute "negative assessment of intellectual abilities" (subgroups "National discord", "Incitement to hatred"; "Fight", "Insult").

This group includes occasional neo-lexemes with the -phrenic component, functioning as an insulting designation of a) a subject representative of a nation (LM is an ethnonym or ethnopholism); b) a subject - a supporter of a political / public figure (LM is a proper name).

The SM determines the semantic and motivational characteristics of a LU in a meaningful way. The SM oligoPHRENIC and subsequent new lexemes with this SM cause the formation of the transformed CA "muddleheaded, mentally retarded" (see the similar meaning of the component -phrenic from the Greek φρήν "mind"). From the perspective of derivation, we can consider these units as blending (telescoping) (Grigorieva, 2019), where one of the lexical units connected with syncopation is the word oligophrenic ("colloquial about a stupid, unintelligent or abnormal, strange person (Kuznetsov, 2000)), setting the morphological pattern, the accent and syllable structure of the new word. Both derivative bases are semantically significant, complementing significative and pragmatic features (compare liberophrenic, trampophrenic). The second component carries an intellectual evaluation value (see the above transformed CA); the first component also contributes to the evaluative component of meaning at the level of individual/common connotations.

For example: a) Ukrophrenic (telescoping: ukr / ukrainian + oligophrenic): MF: ukr/o/phrenic; MM: "one who belongs to Ukrainians / ukrains andis dumb" (... Dmitry is not a dumb ukrophrenic person [Etoonda, 2014]); the LU is more often used as an invective appeal; in Internet communication the LU-partners dumb, euphoric, muddleheaded; to demand, to portray, reflecting the attributes of the named subject "emotional", "unintelligent"; b) Stalinophrenic (telescoping: Stalinist + oligophrenic): MF:

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Stalin/o/FRENIC; MM:  "one who belongs to Stalin's supporters and is stupid" (Stalinophrenic people of all stripes and other potsriots will be ripped...) (Slovohotov, 2013); the LU, most often, functions as an invective address, as part of name sentences; the recorded repeated partner LU (modern, enthusiastic, rip, drive yourself) reflects the subject attribute "emotional", "inadequate".

In this group we also include a set of occasional negative evaluative identifications of the subject with the morpheme -saur [from Gr. sauros "lizard"]. The subset of LUs described below includes: 1) LU with LM ethnonyms (subgroup "National discord"); e.g.: Americanosaur; MF: AMERICAN/o/SAUR; LM: America, SM: dinoSAUR; CA: "(mentally) retarded, primitive subject clarified by LM"; MA: "a subject connected with America"; MM: "one who is American and thinks primitively like a lizard". IWF is living, metaphorical (identification with a dinosaur), motivation is complete, relative, semantic-morphological (Tell us about the rights of illegals in America, you are our learned americanosaur!). (Amitel, 2014); Americanosaur is used as an invective reference, in noun sentences; it is rarely combined with adjectives, there are also recorded combinations of the LU as a syntactic subject with the verbs to seek, to bite, to be furious; LU-partners actualize the attribute of the named subject "aggressive".

2) LUs with LM proper names (subgroups "Fight", "Insult"): a) to characterize: the bearer of this name; e.g.: Trumposaur; MF: TRAMP/o/SAUR; LM: Trump, SM, CA, IWF, motivation - as in No.1; MA: "Trump as a subject with certain characteristics"; MМ: "Trump because he thinks primitively like a lizard (e.g.: Trumposaur carries a troubled time. Donald Trump has won a ... brilliant victory ... and thus condemned the US Republican Party to a ... troubled time ...) (Kozlovskij, 2016); LU-partners - hateful, with ... even less of a brain, to speak out, to rest on one's laurels, to devour, to act, to meet, to humiliate reflect the attributes of the subject "inconsiderate", "predatory", "unpleasant"; b) to characterise the supporters of the name bearer; e.g: Stalinosaur; MF: STALIN/o/SAUR; LM: Stalin; SM, CA, IWF, motivation - as in No. 1, 2a; MA: "associated with Stalin"; MМ: "one who

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supports Stalin and thinks primitively like a lizard" (Lenin and the revolution are bad, but Stalin and the USSR are good. ... liberal malcontents, and wistfully nostalgic Stalinosaurs (Bagrov, 2019)); the recorded LU-partners - to wash over, no brains, stupid, caveman, dumb-headed, rabid, soviet, marasmic, nostalgic, extinct, to run up, to appear, to shout, to forget reflect the attributes of the subject "stupid", "retarded"; 3) LUs with LM denoting socio-political currents; e.g.: liberosaur; MF: LIBER/o/SAUR; LM: liberalism or liberal; SM, CA, IWF, motivation as in No.1, 2a, 2b; MA: "relating to liberalism / liberal values"; MM: "one who is liberal / supporter of liberalism and primitively thinks like a lizard" (And "pan-human beings", including our liberosaurs ... do not consider this a shame) (Yakemenko, 2013); LU is used in imperative sentences, invective references. In terms of derivation, we can also see the neo-lexemes described as products of telescoping, for example: American + dinosaur, Stalinist + dinosaur, liberal + dinosaur, etc. The LU dinosaur is a morphological model; figuratively, a person with outdated notions, beliefs, unwilling to adapt to new realities, retarded (see Ozhegov, & Shvedova, 1992). Blending is a serial feature. In the described cases the suffix -oid shows a change in the functional sphere, i.e. atypical combinatorics (traditionally the morpheme is used to form terms - names of extinct reptiles); as a result of serial blending, multiple telescoping neolexemes one can assume an emerging tendency to associate -saur with a new meaning ("(mentally) retarded, primitive").

The next example of LUs of this group illustrates the tendency to use an independent word as a derivational component.

LUs formed with the participation of ethnonyms (subgroup "National discord"), proper names, chrononyms, names of socio-political trends (subgroups "Fight", "Rivalry") and the morpheme -down, belong to the enemy vocabulary according to the pragmatic features in their meaning. The realised negative evaluation stems from the meaning, the stylistic characteristic of the down component (down - "a colloquial, disparaging or ironic, about a person with a low level of intelligence") and the individual connotations of the LM. There is also atypical combinatorics (atypical use of LU down

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to produce composites). SM (DAUN, liberDAUN, MayDAUN, kremleDAUN, trampDAUN) express CA "mentally muddleheaded subject associated with a named LU". For example, liberdown (LIBER/DOWN): LM: liberal, MA: "a subject related to liberals"; MM: "one who is pro-liberal and mentally handicapped, like a person with Down syndrome"; IWF: living, metaphorical; motivation: total, relative, semanticmorphological (Typical liberdown. In any measure ... looks for a catch and oppression. ...P.S. This does not apply to adequate liberals) (Crim, 2020); LU-partners are typical, regular, very heavy, stupid; look for a catch, invent, blow it out, pretend - reflect attributes of the subject "narrow-minded", "gullible", "negatively disposed".

There is a similar phenomenon illustrated by LUs formed with the component hater (English noun formed from the verb to hate which means "malcontent, sworn enemy, anti-fan") in combination with ethnonyms (subgroup "National discord"/"Incitement to hatred") or proper names, designations of socio-political trends (subgroup "Fight"). An example is Liberhater. MF: LIBER/HATER. LM: liberal, liber; SM: TrampHATER, PutinHATER, StalinHATER, UkroHATER, KremlinHATER; CA: "one who hates the one named by the first component"; MA: "a subject associated with liberals"; MM: "one who hates liberals". IWF is living, non-metaphorical; motivation is complete, relative, morphological. The LU with the component -hatеr belongs to the first described group by its significative features (see I).

III.

The next LUs also belong to the enemy vocabulary based on the pragmatic components in their meaning. The common semantic attribute "negative characteristic of the subject's mental properties" brings the following LUs into a common group.

This group of subject denotations includes, for example, neo-lexemes formed with the help of the suffix -oid, which have a negative evaluative semantics): a) LUs with proper names (e.g: Yeltsenoid, Stalinoid, Clintonoid, Trumponoid, Putinoid, Navalnoid; subgroup "Fight", "Incitement to hatred"); b) evaluative LUs with LM ethnonyms (for example, Americanoid, Europeanoid; subgroup "National discord" / "Incitement to hatred"); c) the LU formed from precedent names (chrononyms, toponyms), names of socio-political currents (e.g. oranoid,

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kremloid); "Fight" / "Incitement to hatred" subgroup; d) the LU with the occupational name (deputoid), socio-political currents (liberoid); subgroup "Fight" / "Incitement to hatred" . The evaluative value of these LUs depends on the individual connotations associated with the LM and the connotations associated with the SM, which condition the formation of the transformed CA. The component -oid originates from the Greek εἶδοζ "look, appearance, image"; it brings the meaning "similar, like that which is called by the motivating noun"; see the dictionary entry on this derivational unit (Efremova, 2000). The data of the involved corpora, Google N-gramm-Viewer servers, Google Trends, Yandex.Statistics, Yandex.Blogs platform show the implementation of neo-lexemes with -oid exclusively negative evaluation and the functional limitations of pragmatic nature (the LU is used only by the opponents of the person called LM). These facts allow assuming a connotative reinterpretation of CA influenced by the analogy reflected by SM (e.g. schizOID, hysterOID): CA - "similar to LM, but handicapped / abnormal / inadequate / with psychiatric pathology". This means that the original attribute of similarity was supplemented by the attribute of inadequacy, abnormality and negative evaluation. The described motivemes refer to the expression of a pejorative attitude.

For example: Americanoid. This refers to the formation of a new lexical-semantic variant (LSV), along with the LSV denoting the indigenous inhabitants of the Americas, the Indians (an anthropological term). The new LSV denotes modern Americans and implements a negative evaluation.

According to V.N. Trishin's dictionary, a synonym for Americanoid is the noun hamburger-eater (Trishin, 2013). MF of LU Americanoid: AMERICAN/OID. LM: American, an American. SM: schizOID, liberOID, trampOnOID; CA: "abnormal, inadequate, similar to that named by LM". MA: "a subject of relevance to the people of America". MM: "someone abnormal, inadequate, like American, similar to everything American". IWF is living, metaphorical (negative interpretation of similarity - such as..., but inadequate); motivation is complete, relative, semantic-morphological.

Example of motivational context: Typical Americanoid. Not an American, but a product of the American approach to work (Batumi, 2014). We detected the following LU-partners: typical, one hundred

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percent, ordinary, plastic-celluloid, monstrous, drunken, loose, pale, vulgar, to turn, to transform, to contrive (expressed attributes of the subject are "product of the system", "harmful", "unhealthy way of life").

Orangeoid. MF: ORANGE/OID. LM: orange (associated with the Orange Revolution). SM: hominoid, schizoid, liberoid, americanoid (CA: see above). The negative assessment is due to the reinterpreted meaning of the component -oid and the connotations of LM. The LU is used today with 2 meanings: 1) to denote supporters of V. Yushchenko, activists of the series of opposition actions on 22.11.2004-23.01.2005 in Ukraine, which became known as the "Orange Revolution"; 2) to denote participants/ supporters of the rally on Bolotnaya Square in Moscow in 2012. (compared to the Orange Revolution).

MA: "a subject associated with the Orange Revolution". MM: "abnormal, inadequate, as a participant in the Orange Revolution".

IWF is living, metaphorical (negative interpretation of similarity, transposition: orange revolution (orange) participant / revolution supporter); motivation is complete, relative, semantic-morphological.

Example of motivational context: "The Mean Time" at the time of the Orange ... turmoil ... called itself the "third force". ... We declared ... our ... deepest hatred for the Orangeoids. ... gathered on Poklonnaya Gora, where we fought back ... against the "orange plague" ... (Arhiseva, 2015).

The Internet communications show definitions of explicit, convincing, accomplished, main, odious, conniving, typical, unprincipled, lacking ideology; the LU combines with words as a syntactic subject and verbal units to talk, to deny, to tell, to muss, to puff up, reflecting the subject attributes "aggressive", "engaged", "dishonest".

Liberoid (LU is introduced by S.E. Kurginyan).

MF: LIBER/OID. LM: liberal (see also liber is contemptuous of a liberal). SM: OrangeOID, ClintonOID, etc. (CA is as in other LU with oid). MA: "a subject related to a liberal". MM: "such as abnormal liberal". IWF is living, metaphorical; motivation is complete, relative, semantic-morphological Example of motivational context: A liberoid is a person who ... says he is a liberal ... but acts ... back to liberal principles ... (Timonin, 2017). We found collocates indicating the attributes of the subject "known for negative qualities", "dangerous": egregious, stubborn, destroy, act, to shout, etc.

(LEEDS, 2005-2017).

From the point of view of derivation, the described neo-lexemes can also be considered as products of telescoping (Stalinist / Putinist /

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156 Yeltsinist, etc. + schizoid; American + schizoid, liberal/liber + schizoid; orange + schizoid; schizoid acts as a morphological pattern).

Blending is a serial feature. The suffix -oid is typical of special vocabulary and used in the cases analysed to form words with other functional, stylistic characteristics; there is a tendency to associate the suffix with a changed meaning ("similar, but not normal"). The following meta-language comment of the blogger is noteworthy: "I will use the suffix "-oid" to refer to those people who take any unflattering statement about their idol as a personal insult, ...

Real communists can be called Leninoids" (Zelichenko, 2013).

LM"). MA: "a subject related to liberalism, liberal values"; MM: "one who is painfully ˂attached to˃ liberal ˂principles˃". IWF is living; motivation is complete, relative, semantic-morphological. An example of a motivational context: ... I have a ... term: "liberopath", meaning a person who pathologically, ... morbidly holds on to liberal values (Lopatnikov, 2009).

Internet communication contains adjectives in the function of the definition revived, marketable, and the participle assertive; the LU rarely functions as a syntactic subject. These units can also be interpreted as the result of telescoping (e.g.: liberal + psychopath).

This group of subject designations also includes neo-lexemes formed with the Russian-language component -oholik. The English suffix -oholic is involved in the formation of nouns denoting a dependent subject pathologically from something (The American Heritage Dictionary, 2011). The Russian equivalent has a similar meaning. The subject designations formed with its participation (e.g.

Ukroholik, Demokratoholik, Trampoholik) implement a negative evaluation (subgroup "National discord" / "Incitement to hatred" / "Fight").

Influenced by the analogy with SM, the individual connotations associated with LM form the CA "fixated, turned on something". We will consider the occasionalism of a trampoholic.

MF: TRUMP/OHOLIC. LM: Trump. SM: alkOHOLIC, shopOHOLIC. MA: "a subject related to Trump"; MM: "one who is fixated on Trump, pathologically devoted to him". IWF is living; motivation is complete, relative, semantic-morphological. For example: What should we do now with our trampoholics and tramp-fans? (Mk.ru, 2017); we revealed LUpartners known, typical, weak-minded, rabid (reflected attributes "unintelligent", "inadequate"). The named neo-lexemes can also be interpreted as products of telescoping (e.g. trampist + alcoholic, etc.).

A similar meaning is realised by subject designations formed with the morpheme -man (from the Greek μανία "frenzy, madness; delight"; - "the final part of compound nouns that introduces the meaning: passionate lover of that which is named in the first part of the word" (Efremova, 2000). A subset of these LUs is constituted by subgroups: a) with LM - a proper name, denoting a socio-political trend (Navalnoman, Putinoman, Stalinoman, Trumpoman; subgroup "Fight"); b) with LM ethnonym / ethnopholism, name of a country (for example: Ukrainoman, Americanoman; subgroup "National discord" / "Incitement to hatred").

Group III also includes LUs formed with the morpheme -path (from the Greek πάθοζ meaning "everything that one undergoes (experiences), feeling, suffering" (Efremova, 2000). These LUs denote a subject associated with a socio-political or ideological current. The negative evaluation they realise (see e.g. liberopath, putinopath) is determined by analogy with the SM and the connotations of the LM. Liberopath (subgroup "Fight"). MF: LIBER/o/PATH. LM: liberal. SM: socioPATH, psychoPATH (transformed CA: "arriving in a painful state of attachment to someone, something, who/what is named by the

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For example: Stalinoman.

MF: STALIN/o/MAN. LM: Stalin. SM: kleptoMan, necroMan, drugMan, gamblingMan; CA: "pathological, passionate adherent of the one named by LM"). MA: "a subject related to Stalin". MM: "the one who is a pathological, passionate - ˂adherent˃ of Stalin". IWF is living; motivation is complete, relative, semanticmorphological. For example: ... those who glorify Stalin today, they are surely worse than the Nazis. ... Without the Kremlin's resource, the Stalinmans would remain a marginalised group of urban madmen (Solvaig, 2015). The Internet communication captured LUs: furious, raging, stubborn, obstinate, great, sick, aggressive; to listen to, to drag, to interpret, to perceive, to exult, to shout, reflecting a negative attitude towards the subject, its attributes "suggestible", "emotional", "abnormal", "insistent". We can also consider these units as being formed by telescoping (e.g. Stalinist + drugman).

IV.

The following LUTs attributed to the enmity vocabulary based on the pragmatic components in their meaning can be grouped into a subgroup by the

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common semantic attribute "negative moral characteristic".

This group includes, for example, LUs associated with socio-political movements, ideas, subject designations ending in the component -erast/rast, associated with the designation homosexual (LSV1) and its derivative vulgar invective name of males (LSV2; [Wiktionary, 2019]) (subgroup "Fight" / "Incitement to hatred" / "Insult"). The most frequent one is the LU liberast. MF: LIB/ERAST. LM: liberal. SM: fedERAST, sepaRAST, tolERAST, deputAST; transformed CA (see ἐραστής 'lover, admirer" from ἐραστεύω "to love"): "an abhorrent, unworthy, perverse supporter of something"; MA LIB/ERAST: "a subject related to a liberal". MM: "the kind of liberal who is disgusting, perverse".

IWF is living, metaphorical; motivation is complete, relative, semantic-morphological Example of a motivational context: In Russian educated ... circles ... the dominant ... has become the type of Westernised liberal ... popularly called "liberast" (National corpus of the Russian language, 2010-2021). The most frequent collocations include: typical, venal, Russian, crazy, interested, cursed (LEED, 2006-2010), partner verbs recorded in Internet communication are to rant, to get rid of, to hate, to compose, to trample. LU-partners reflect negative attitudes towards the denoted subject, their attributes of "dishonourable", "emotional", "active", "inadequate". We can also consider LUs belonging to this subset to be formed as a result of telescoping, its serial nature can be traced; the seriality of the analogy reflected by the new telescoping units may indicate the association of the component -(e)rast with a modified meaning "perverted, disgusting".

Conclusions Structural motivation is a significant phenomenon in shaping the semantics of units and motivational relations in the lexico-semantic system of language. The development of contemporary Russian-language enmity vocabulary is characterised by the following vectors: integration, intensification, internationalisation and intellectualisation. These trends define modern nominal derivation and contribute to new realisations of the possibilities in the language system. Intensification correlates with the transgressiveness of contemporary media, i.e. their focus on maximising the purposeful "power of the text" and the "communicative will" of the addressee in a particular chronotopic segment of communicative space. Our material reflects this

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in expressivisation at the lexical level, including an attitude of emotional construction of social reality (Rebrina, & Shamne, 2020). Integration manifests in the transition of special derivational means into the common language, softening of stylistic boundaries and orientation towards the pragmatic axis of the norm; internationalisation in the active use of foreign affixes; intellectualisation - in the frequency of metaphorisation, appeal to associations and analogies, the rebus effect. The topical trends are the formation of LUs through the use of derivation instead of syntagmas, activation of non-usual ways of derivation (blending) and nomination by analogy, the increasing role of onyms; the greatest activity of derivational components expressing the meaning of enmity and negative evaluation. The described subject designations belong to the vocabulary of enmity according to the significative or pragmatic components of their meanings, realising a negative assessment of the subject according to his intellectual, psychological and moral characteristics. The emphasis in IWF on the negative properties of the subject through the actualisation of lexical/structural motivation; the opposition of subjects on the axis "adversary supporter"; the active realisation of subjective modality and the contextual actualisation of the paradigmatic value of units; the possibility of individual motivation of occasional formations determines the discursive disclosure of motivational relations and the internal form of new lexical units.

Acknowledgments The study is supported by Russian Science Foundation (project No. 20-68-46003 “The Semantics of Unity and Animosity in Russian Lexis and Phraseology: Language System and Discourse”).

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DOI: https://doi.org/10.34069/AI/2021.44.08.15 How to Cite: Yeremenko, H.Yu., Yakovleva, S.D., & Sagan, O.V. (2021). The state of creativity in adolescents with intellectual disabilities. Amazonia Investiga, 10(44), 160-167. https://doi.org/10.34069/AI/2021.44.08.15

The state of creativity in adolescents with intellectual disabilities Стан креативності підлітків з порушенням інтелектуального розвитку Received: May 21, 2021

Accepted: July 30, 2021

Written by: Yeremenko H.Yu.58 https://orcid.org/0000-0003-0009-2913 Yakovleva S.D.59 https://orcid.org/0000-0001-7620-098X Sagan O.V.60 https://orcid.org/0000-0002-3195-3686 Abstract

Aнотація

The objective of the article is to investigate empirically and substantiate theoretically the state of creativity in adolescents with intellectual disabilities; to reveal gender differences and changes in creativity during puberty in 13-15year old adolescents.

Davis's standardized technique was used to determine the respondents’ creativity. Obtained data were processed using Student’s t-test for paired samples. The obtained results showed existing but not realized capabilities of adolescents with intellectual disabilities, so special correctional and developmental work should be performed with them.

Метою статті є емпіричне дослідження та теоретичне обґрунтування стану творчості підлітків з вадами розумового розвитку; виявити гендерні відмінності та зміни у творчості під час статевого дозрівання у підлітків 13-15 років. Стандартна методика Девіса була використана для визначення рівня творчості респондентів. Отримані дані обробляли за допомогою t-критерію Стьюдента для парних зразків. Отримані результати показали наявні, але не реалізовані можливості підлітків з вадами розумового розвитку, тому з ними слід проводити спеціальну корекційно розвивальну роботу.

Keywords: creativity, adolescents, intellectual disabilities, gender.

Ключові слова: креативність, підлітки, порушення інтелектуального розвитку, гендерні ознаки.

Introduction The current revival of Ukrainian society is characterized by the need in creative thinking people, so the way for their successful development should be find. People’s creativity depends on people’ activities and conditions created for the development of every individual, so the development of pupils’ creative abilities becomes socially important.

unique products. An individual’s intuition, unconscious components of their mental activity, as well as self-actualization pay an important role in creative potential revealing and expanding.

A creative personality can be characterized via their abilities, motives, knowledge and skills, thanks to which they can create new, original and

The development of creative abilities is reflected in the works of national psychologists, such as Karpenko L.A., Petrovsky A.V.,

58 59 60

Mental activity is based on sensory cognition, while thinking reflects reality more deeply and accurately.

Assistant, postgraduate, Kherson State University, Ukraine.

Doctor in Psychological Sciences, Kherson State University, Ukraine.

Docent, PhD, Kherson State University, Ukraine.

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Yaroshevsky M.G. (1985), Gracham F.K., (1997), Turinina O.I. (2007), Kondratieva N.V. (2015), Kunakh G.I. (2016), Sternberg R. (2002), Guilford J. P. (1967), Torrance E. (1965), Davis (1969) and other foreign researchers made a significant contribution to the issue on creativity.

The performed theoretical analysis of prominent national and foreign scientists’ works and our examination of approaches used to study creativity of children with intellectual disabilities, allowed us to identify three main creativity components:   

divergent-convergent; motivational-behavioural; personal-social.

The pedagogical encyclopedia interprets creativity as the highest form of human activities and as a specific activity. Creativity is evaluated by its social significance and novelty. In this work, we estimate formed creativity of adolescents with intellectual disorders. We investigate specific changes in creativity in adolescents with moderate intellectual disabilities to propose a set of correctional and developmental measures to better develop their creativity.

Hypothesis: Creativity of adolescence with intellectual disorders depends on their age and gender and influenced by special correctional and developmental activities.

Theoretical Framework or Literature Review Initially, creativity as a process was seen as artists’ or scientists’ self-observation. Thus, studying the specific mental regulation of a creative process, Stanislavsky K.S. (1915) considered the super-consciousness as the highest concentration of an individual’s spiritual forces during creativity product generation.

Creativity as a “synthetic product” is a necessary condition for personality development, especially if high cognitive motivation exists. At the same time, having high intelligence is not the same as having high creativity. Not the process of creative work, but its components, i.e. creative qualities, including imagery, high associativity, developed imagination, fantasy, the ability to generate ideas, etc., determine the creative abilities (Khutorskoy, 2003).

The concept of “creativity” means a universal ability to creative acts and creativity is characterized by certain abilities, including a

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psychophysiological component and an individual’s mental inclinations (Rusalov, Golubeva, 1980), on the one hand, and an individual’s activities (Leontiev, 1975), from the other one. There are two levels of creative abilities: reproductive (high skilfulness) and namely creativity (ability to create something new).

Because creativity is an exploratory activity, it is associated with behavioural reactions physiologically linked with the hippocampus, with emotions, i.e. structures of the limbic system, as well as with the ability to reflect objects and phenomena of the real world. It is necessary also to take into account that the organization of brain activity depends on a dominant type of thinking (abstract-logical thinking is supported by the left hemisphere and spatial-image thinking is supported by the right hemisphere).

The theoretical source lying in thinking types differentiation is the principle of unity of the psyche and activities. A human activity determines the peculiarities of mental phenomena organization. Different thinking types exist due to, primarily, the specific of an activity and the mental specifics of an individual’s particular qualities at different stages of their development.

The first signal system is applied when the reality is reflected (Pavlov,1951), the first signal system means impressions, feelings and ideas on the environment, both natural and social, but it excludes audible or visible words. The second signal system is new, namely human system that uses various symbolic means, including musical sounds, drawings, artistic images, generalized concepts.

Conceptual thinking is an integral form of mental activity. All mental functions, an individuals’ cognitive experience and, first of all, figurative, sensory impressions take part in concept formation.

Kholodnaya M.A. (2002) identified specific functions of images in conceptual thinking: 



images allow an individual to combine knowledge received from the outside, through verbal signs, with one’s own individual experience obtained during interactions with the world around; figurati ve components existing in thinking dramatically accelerates its course;

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161

162  

due to images, conceptual thinking is saturated with emotions and feelings, i.e. it becomes passionate; images give opportunities to make unexpected generalizations, to evoke original associations, thus, thinking receives features of a creative process.

another because of a feature common to the two compared objects.

There are also additional creativity components: systematic and consistent thinking; dialectics; willingness to take risks and responsibility for a made decision.

J. Guilford (1967), based on the classical division of thinking into inductive and deductive, expressed the idea on two thinking types: convergent and divergent. He took into account that associations runs according to the objective laws of logic, therefore thinking was divided into two types depending on used mental operations: convergence and divergence. According to his ideas, inductive and deductive operations characterizes convergent thinking, which is consistent, logical, unidirectional and provides a problem solution by finding only one necessary property that meets the problem conditions and requirements. Convergent thinking is aimed at obtaining results by restoring in memory of earlier acquired knowledge. It does not imply those fantastic jumps that are necessary to reveal new knowledge. Using convergent thinking, an individual does not realize all their thinking abilities. Convergent thinking strives to achieve a single correct result. It is based on knowledge.

The truth criterion for this thinking is set from the outside. The main mechanism of such thinking is logical operations (analysis, synthesis).

There is no directly proportional relationship between the indicators of convergent and divergent thinking. Convergent thinking is examined with intellectual tests measuring an IQ (mental giftedness). Creative thinking is based on a synthesis of logical thinking and imagination.

These processes are not mutually exclusive, but complementary, but their role is different at different stages of a creative process.

Divergent thinking is thinking that goes in different directions, involves a plurality of equally correct options for problem solving. Such thinking is based on intuition. Its main criterion is originality; associations, emotional factors are its psychological mechanism. These mechanisms exist as subconscious processes.

Complementary relationships between two thinking types lay at the heart of any creative process. Creativity requires only perception of the reality as it is, but this perception must be organized into a certain system, i.e. it must pass the initial stage of insight and include logical and verbal thinking.

The main characteristic of divergent thinking is creativity, which means the ability to generate new, unusual ideas. Various people have creativity of various degrees. There are the following indicators describing creativity:

The main characteristic of creativity is development of something new. A creative process depends on:

1.

2.

3.

4.

5.

Speed means a number of ideas that an individual is able to produce per unit time.

Originality means rarity of ideas, how much an idea differs from generally accepted standards.

Flexibility means easiness of transition from one idea to another.

Susceptibility means sensitivity to details, nuances, paradoxes.

Metaphoricity means an ability to transfer one object’s (phenomenon’s) properties to

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That is, creative (or productive) thinking is understood as thinking based on creative imagination, which is manifested in constructed images of new products or developed programs for behaviour in uncertain problem situation.

Considering that J. Guilford’s theory (1967) of an intelligence structure was not sufficiently substantiated, R. Sternberg (2002) proposed his own understanding of creative processes.

According to him, creativity means a life attitude “to buy cheap and to sell expensive”. He believes that creative thinking can be taught as taught mathematics and reading.

 



a perceptual level of reflection; neural mechanisms of a mnestic informative level of reflection (formation of memory traces in the lower temporal lobe of the cerebral cortex); a semantic level of reflection.

New information is obtained through restructuring of relevant sensory information and it is manifested in super-consciousness (Simonov, 1987).

During relative rest, creative people’s brain is activated more strongly. This fact can be

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explained by greater sensory openness, greater sensitivity to slightest external stimuli of such people. The revealed difference in neuron and inter-neuronal connection distributions between the right and left temporal lobes is consistent with the difference of their functions. The most common tests for creative thinking confirm that contextual connections organized in a certain way are important for creativity.

Danilova (1995) and F. Gracham (1997) consider creative thinking as interaction of orientation and protective reflexes. Kholodnaya (2002) showed that talent correlated with depression and mental disorders, and Kunakh (2016) emphasized the correlation between creativity and neuroticism.

These effects appeared probably because of feedback: during creative activities, the rational control over emotions is weakened.

Modern scientists apply two approaches to the nature of creativity. According to the first one, creativity is seen as an activity aimed at creating new socially significant values; the main attention is paid to the criteria of objective novelty and originality of creative products. The second approach connects creativity with human self-realization, with developed motivation for creativity. The creativity criterion, its value in this approach is a personality, not just creative products. Thus, creative activity can be characterized by the following parameters: a creating subject, a created result, and conditions for a creative process. There is no doubt that the centre of creativity, its basis is a personality, a subject, without whom a creative act is impossible. The general structure of creative activity as a system includes several main subsystems: a creative process; a product of creative acts; a creator; environment and conditions, in which a creative process takes place.

The divergent-convergent criterion assessing formed creative capabilities can be described as the subjective creativity parameter. The motivational-activity criterion corresponds to creativity results, and the personal-social criterion corresponds the conditions, in which a creative process takes place. As many studies have show, people with low and medium IQ have respectively low and medium creativity. People with high IQ can have either high or low creativity. People with high IQ and creativity are intensively studied by psychologists in the context of the problem of giftedness.

Adolescents with special educational needs have usually changed conditioned reflex activity,

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imbalance of excitation and inhibition processes, as well as disrupted interaction between the first and second signalling systems. All these physiological factors lead to an individual’s abnormal mental development, affect negatively cognition, emotions, will and personality in general. Also self-doubt, have increased anxiety, irritability, emotional disorders; they experience significant lack of social contacts, face difficulties in interpersonal relationships, and have an increased need for protection.

Responsibility for decision-making is often transferred to others, and their speech is dominated by the words: “loneliness”, “inability”, “failure”, “futility of life”. Such people have low self-esteem, self-doubt, do not believe in their self-realization, in particular in the personal sphere. Perception of adolescents with special educational needs is characterized by slow, reduced mobility of nervous processes, so the amount of material they can perceive is less.

Molyako (1978), analyzing creative processes, drew attention to the peculiarities of creative personality development in a social group, its dependence of group norms and values, especially in adolescence, which was also important for adolescents with developmental delay.

Children with special educational needs develop according to the same patterns as their peers with normal development. Physical and mental deficiencies are the ground for obstacles to communicative skill development and to social tie establishment; this is an unfavourable factor for personal development, disrupting normal socialisation (Vygotsky, 1968).

The most important oligophrenia symptom is insufficient intelligence, but adolescents with mild mental retardation are also characterized by impulsiveness, a tendency to obey someone else’s will, a weak ability to purposeful activities, difficulties in differentiating subtle emotions, increased suggestibility, and deviant behaviour.

Under specially organized education, adolescent with intellectual disabilities can develop significantly their emotional, volitional and intellectual spheres, namely: empathic skills can be formed, impulsivity can be reduced, and they start better control their behaviour. As a result of such correction, they become understand beautiful things, develop observation and meaningful memorization. Such positive influence on adolescents’ emotional and volitional sphere promotes their higher spiritual qualities: conscience, devotion, sense of duty,

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164 responsibility, although these qualities are developed later compared to peers with normative development.

Emotional and social intelligence allows adolescents with intellectual disabilities to solve successfully problems in a familiar situation.

Therefore, we should note that studies on creativity and its formation is very important for quality corrective work with adolescents with intellectual disabilities and for their personality development, which help prepare them for life and future work.

Methodology The creativity as an individual’s trait should be examined comprehensively, because creativity includes many components, for example, artistic and aesthetic perception, creative imagination, intellect, general abilities, thinking and so on.

Therefore, several research methods, including those proposed by J. Guilford (1967), R. Sternberg (2002), E.R. Torrance (1965), S. Beyer & E.Bowden (1997) were developed to examine the above components, there are.

We used Davis (1969) method determining pupil’s creative abilities as a personal trait and examining how creative abilities are formed at adolescents with intellectual disabilities. Davis’ method determines creative abilities of 13-17 year old adolescents. The questionnaire contains 21 questions to examine creativity as a personal

trait. Creativity includes: curiosity, selfsufficiency, a sense of harmony and beauty, altruism, risk acceptance, disorder acceptance, the need for activities. The method can be used by a psychologist together with a teacher once a semester. This method is used to evaluate effectiveness of applied programs and teaching methods, training materials and manuals. It is possible to monitor with this method changes in abilities, not just learning results.

Results and Discussion Testing with the presented method was carried out in standard conditions of educational institutions (group form of testing); the sample consisted of adolescents with intellectual disabilities. Obtained raw data were processed with the method keys and analysed statistically.

We should note that we examined adolescents with intellectual disabilities and the calculated indicators revealed adolescents’ potential capabilities that must be fulfilled, which can be done, for example, with correctionaldevelopmental work developing these capabilities.

The experiment involved 172 adolescents (boy and girls) with moderate intellectual disabilities studying at special need school.

The obtained data were statistically processed using Student’s t-test to compare mean values for subsamples (see Table 1).

Table 1.

Indicators of creativity depending on adolescents’ gender and age

Points Creativity in %

Points Creativity in %

Points Creativity in %

Boys 13 year old n =32 9.93 ± 0.26 47.32 ± 1.5 14 year old n = 36 13.19 ± 0.48 62.83 ± 2.29 15 year old n =29 9.95 ± 0.45 47.37 ± 2.12

According to the experimental data, it was found that creativity of 13-15-year old adolescents changed and it was developed in waves: increased firstly and decreased then. Thus, 13 year old respondents had creativity of 43.64%.

After a year (when the respondents reached 14 years), this indicator increased by 13.26%,

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Girls n =23 8.39 ± 0.41 39.96 ± 1.96 n = 27 10.7 ± 0.31 50.97 ± 1.48 n =25 10.7 ± 0.41 51.04 ± 1.97

reaching the maximum 56.9%, and declined again one year later and decreased by 7.69% to 49.21%. Comparing 13-year old and 15-year old adolescents, their creativity increased by only 5.57% to 15 years, a wave-like jump was observed at 14 years (Fig. 1).

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Figure 1. Creativity indicators depending on age As for gender differences, boys’ creativity was higher by 11.86% in comparison with girl’s creativity and reaches 62.83% against 50.97%.

If we take a closer look at relations creativity indicators with gender and age, we can see a significant lag in 13-14 year old girls’ creativity, but later, to 15years girls’ and boys’ creativity becomes nearly equal (the difference is less than 1%). The wavy jump, characteristic for 14-yearold boys’ creativity, turns to a drop by more than 24.6% during the last year. On contrast, girls show increased creativity to 14 year old, but after the growth almost stops, increasing by only 0.14% compared to 14 years.

creativity can be examined at different stages. If we do not take into account creativity jump in 14year-old boys, but examine only differences between 13 and 15 years, we can draw the following conclusions: 13-year-old girls’ creativity is lower by 15.56 % compared to the same age boys, but girls’ creativity increases by 21.7% up to 15 years. As for boys, their creativity grew only by 7.36%, which is 14.01% lower in comparison with girls’ creativity rise.

The obtained data show that more than half respondents had average creativity (58.48%), a third of them had low creativity (32.16%) and almost 10% of the respondents (16 adolescents from the entire sample) showed high creativity (9.36%).

The indicators on Figs. 2 show actual levels of creativity at 13 and 15 year old adolescents, so

Figure 2. Adolescents’ creativity depending on their gender and age.

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166 However, because this method say the creative abilities have only respondents scoring from 15 to 21 points (or 71.43-100%), we can assume that 155 out of 172 adolescents, or 90.64% of

the total sample, had low creative abilities, and only 16 students (9.36%) showed really existing creative abilities.

Figure 3. Distribution of studied adolescents by creativity formation.

Conclusions 1.

2.

3.

4.

The performed experimental study showed that 58.48% of the respondents had average creativity.

As for gender differences, 13-year-old boys’ creativity was higher than that of the same age girls, creativity increased to 14 years and decreased again to 15.

Girls’ creativity increased gradually and was the highest at the age of 15. A significant jump was observed from 13 to 14 years.

The obtained results indicate the need for correctional-developmental work with adolescents with intellectual disabilities; such work should be aimed at overcoming increased selfishness, emotional vulnerability, unresolved personal problems, romanticism, etc. by organization of creative activities.

Bibliographic references Beyer, S., & Bowden, E. M. (1997). Gender differences in self-perceptions: Convergent evidence from three measures of accuracy and bias. Personality and Social Psychology Bulletin, 23(2), 157–172. https://doi.org/10.1177/0146167297232005

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Danilova, N.N. (1995). Heart rate and information load. Vestnik Moskov skogo universiteta. Ser. 14. Psychology, No 2, 14-18.

Recovered from https://istina.msu.ru/publications/article/221 1833/ Davis, G.A. (1969). A program for training creative thinking: I. Preliminary field test.

Recovered from https://files.eric.ed.gov/fulltext/ED036019.p df Gracham, F. K. (1997). Afterword: Pre-attentive processing and passive and active attention.

Attention and orienting: sensory and motivational processes. (pp. 417-452).

Mahwah, NJ, US: Lawrence Erlbaum Associates.

Guilford, J.P. (1967). The Nature of Human Intelligence. McGraw-Hill Education Karpenko, L.A., Petrovsky A.V., & Yaroshevsky, M.G. (1985). A brief psychological dictionary.

Moscow: Politizdat.

Recovered from https://www.phantastike.com/common_psyc hology/brief_psy_dictionary/pdf/ Kholodnaya, M.A. (2002). Psychology of intelligence: paradoxes of research. 2nd ed., reworked and add.St. Petersburg: Piter.

Recovered from http://www.intellectinvest.org.ua/content/userfiles/files/library/H olodnaya_Psihologiya_intellekta.pdf

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Khutorskoy, A.V. (2003). Didactic heuristics: Theory and technology of creative learning.

M.: Publishing house of Moscow State University. ISBN 5-211-04710-9. Recovered from https://method.ucoz.ua/_ld/0/72__._.doc Kondratieva, N.V. (2015). The essence of the concept of “creative abilities”. Kontsept– 2015.

Recovered from https://cyberleninka.ru/article/n/suschnostponyatiya-tvorcheskie-sposobnosti Kunakh, G.I. (2016). Creative ability development for children with special needs by the means of decorative and applied arts.

Methodical manual. Vinnytsia: MMK. Recovered from https://www.google.com/url?sa=t&rct=j&q= &esrc=s&source=web&cd=&ved=2ahUKE wiAts7j2ePyAhVfhf0HHYp1CWkQFnoEC AcQAQ&url=https%3A%2F%2Fdorobok.e du.vn.ua%2Ffile%2Fget%2F1379&usg=AO vVaw12UnmBcW90_fKBy9mbgpwF Leontiev, A.N. (1975). Activity. Consciousness.

Personality. M.: Politizdat.

Molyako, V.A. (1978). Psychology of creative activity. Kiev: Knowledge. Recovered from https://pidru4niki.com/14860110/psihologiy a/molyako_psihologiya_tvorcheskoy_deyate lnosti

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Nemov, R.S. (2003). Psychology. Book. 1 General principles of psychology. Moscow: Humanist. ed. center VLADOS. Pavlov, I.P. (1951). Full composition of writings.

Second revised edition. Tom II, kn. 2. M.–L.: Publishing house of the Academy of Sciences of the USSR. Rusalov, V.M., & Golubeva, E.A. (1980) Psychophysiological studies of intellectual self-regulation and activity: a scientific publication. M: Nauka.

Simonov, P. (1987). The motivated brain.

Moscow: Nauka.

Stanislavsky, K.S. (2015). The actor's work on himself in the creative process of experience.

M: Alphabet.

Recovered from http://www.etnolog.org.ua/pdf/ebiblioteka/mystectv/teatr/stanislavskyi/tom2. pdf Sternberg, P. (2002). Practical intelligence. St. Petersburg: Piter.

Torrance, E.P. (1965). Rewarding Creative Behavior. Experiments in Classroom Creativity. Englewood Cliffs, N. J.: PrenticeHall.

Turinina, O.I. (2007). Psychology of creativity: textbook. Kyiv: MAUP. Vygotsky, L.S. (1968). Psychology of art.

Moscow: Izd-vo APN SSSR.

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Bandurko, Z., Blazhko, M., Liepukhova, N., Kovbasyuk, L., Kishchenko, Y. / Volume 10 - Issue 44: 168-177 / August, 2021

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DOI: https://doi.org/10.34069/AI/2021.44.08.16 How to Cite: Bandurko, Z., Blazhko, M., Liepukhova, N., Kovbasyuk, L., & Kishchenko, Y. (2021). Translation of German anthroponyms in a novel “Die Abenteuer des Werner Holt” (Book 1) by Dieter Noll: linguistic and cultural aspect. Amazonia Investiga, 10(44), 168-177. https://doi.org/10.34069/AI/2021.44.08.16

Translation of German anthroponyms in a novel “Die Abenteuer des Werner Holt” (Book 1) by Dieter Noll: linguistic and cultural aspect Переклад німецьких антропонімів у романі Дітера Нолля „Die Abenteuer des Werner Holt“ (Книга 1): лінгвокультурологічний аспект Received: July 10, 2021

Accepted: August 30, 2021

Written by: Zinaida Bandurko61 https://orcid.org/0000-0003-0238-344X Mariia Blazhko62 https://orcid.org/0000-0002-2183-7702 Nataliia Liepukhova63 http://orcid.org/0000-0001-7476-559X Larysa Kovbasyuk64 https://orcid.org/0000-0002-1441-2458 Yuliya Kishchenko65 https://orcid.org/0000-0002-0899-7322 Abstract

Анотація

The article considers the translation of German anthroponyms in a literary text, taking into account the achievements of modern linguistic and cultural studies. The research is based on the theory of precedent and the following research methods: etymological, word-formation analysis, lexical-semantic analysis, analysis of dictionary definitions, linguistic and stylistic analyses etc. To achieve the purpose of scientific research, such an algorithm of actions is applied: 1) establishment of precedent phenomena and surnames, determination of the association to which they appeal; 2) analysis of the method of transferring German surnames in the Ukrainian translation; 3) identification of translation decisions. The study was based on 190 surnames of characters from Dieter Noll’s novel “Die Abenteuer des Werner Holt” (Book 1). The system of surnames of the novel is divided into two groups: precedent and fictional. Precedent onyms denote famous writers, philosophers,

У статті розглядається переклад німецьких антропонімів у художньому тексті із урахуванням здобутків сучасної лінгвокультурології. Дослідження ґрунтується на теорії прецедентності та таких методах дослідження: етимологічному, словотвірного аналізу, лексико-семантичного аналізу, аналізу словникових дефініцій, лінгвостилістичного аналізу та ін. Для досягнення мети наукового пошуку застосований наступний алгоритм дій: 1) встановлення прецедентних феноменів та прізвищ, визначення асоціації, до яких вони апелюють; 2) аналіз способу передачі німецьких прізвищ в українському перекладі; 3) виявлення перекладацьких рішень. Матеріалом дослідження слугували 190 прізвищ персонажів роману Дітера Нолля „Die Abenteuer des Werner Holt“ (Книга 1). Систему прізвищ роману поділяємо на дві групи: прецедентні та фіктивні. Прецедентні

61

Ph.D. in Philology, Senior Lecturer, Kherson State University, Faculty of Ukrainian and Foreign Philology and Journalism, Department of Germanic and Romanic Philology, Ukraine.

62 Ph.D. in Philology, Associate Professor, Nizhyn Gogol State University, Faculty of Foreign Languages, Department of German Language, Ukraine.

63 Ph.D. in Philology, Associate Professor, Nizhyn Gogol State University, Faculty of Foreign Languages, Department of German Language, Ukraine.

64 Ph.D. in Philology, Associate Professor, Kherson State University, Faculty of Ukrainian and Foreign Philology and Journalism, Department of Germanic and Romanic Philology, Ukraine.

65 Ph.D. in Pedagogy, Associate Professor, Kherson State University, Faculty of Ukrainian and Foreign Philology and Journalism, Department of English Philology and Applied Linguistics, Ukraine.

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generals and others. Fictitious onyms are divided into German surnames, foreign surnames and author’s surnames. German surnames are of German origin. The second group singles out surnames of Slavic origin. Author’s surnames are characterized by a certain connotation and influence on the reader. The reproduction of German surnames in the Ukrainian translation takes place by means of transcription and transliteration.

Key words: anthroponym, Dieter linguoculturology, translation, surname.

Noll,

оніми позначають відомих письменників, філософів, полководців та ін. Фіктивні оніми поділяються на німецькі прізвища, іншомовні прізвища та авторські прізвища. Німецькі прізвища мають власне німецьке походження. У другій групі виокремлюються прізвища слов’янського походження. Авторським прізвищам властива певна конотація та вплив на читача. Відтворення німецьких прізвищ в українському перекладі відбувається шляхом транскрипції та транслітерації. Ключові слова: анторопонім, Дітер Нолль, лінгвокультурологія, переклад, прізвище.

Introduction The complex theoretical and practical issues that need to be solved in modern philological and translation studies include onyms of the literary text. Proper names are an important component of any national culture. Traditionally, onyms have been the subject of onomastics, which distinguishes proper names from living beings and inanimate objects. Myaskovskaya T.V. & Semina V.V. (2014) have proposed the following classification: personal name, patronymic name, surname, nickname, pseudonym, cryptonym, anthroponyms formed from ethnicons.

Modern interest in anthroponyms is explained both by the anthropocentric approach to the study of linguistic phenomena and by the interdisciplinarity of anthroponymy.

Anthroponyms are the element that connects a person with their immediate environment and society as a whole. Names create a certain continuum around a person, a specific national and cultural space, common to the whole language community and individual for each of its members (Rylov, 2006: 5). Linguists emphasize the important role of anthroponyms in the system of proper names of a literary text, which is explained by the anthropocentric nature of literary works, stylistic and functional potential of this category of words (Bobro & Prysiashniuk, 2021: 57).

In our scientific research, we adhere to the understanding of the text as a fragment of the conceptual picture of the world and a phenomenon of culture (Kubriakova, 2004). The cognitive approach emphasizes the complex nature of texts that are objectified through language and special language forms. Such texts are considered to be both the result of the mental activity of individuals living in a certain place and specific socio-historical conditions, whose

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speech reflects the relevant socio-cultural and psychological factors (Kubriakova, 2004: 516).

This suggests that texts are the result of discursive, i.e. socially-oriented and socially conditioned communicative activity. The text is thus widely considered as an open structural complex that encourages the researcher to take into account in their linguistic researches the conditions of text generation, factors influencing its understanding, as well as factors of the addressee and the sender (Heinemann & Heinemann, 2002; Semochko, 2012: 204).

Understanding the text as a result of speechthinking and discursive human activity allows us to assume that linguistic devices fix values, ideals, as well as socio-ethical and cultural priorities of society and the individual. So, any text reveals national-cultural specificity and ability to convey the individual characteristics of communication participants, and therefore can be considered as a fragment of the conceptual and linguistic picture of the world (Kuße, 2012: 38; Mizin & Letiucha, 2019).

The above written explains the growing interest of researchers in precedent phenomena. Linguist Yu. Karaulov (1987), the developer of the concept of linguistic personality, was the first to substantiate the scientific basis for the introduction of the term precedent text. To be considered as precedent, the text must meet three criteria: be meaningful to a particular individual in cognitive and emotional aspects; be noted for its superpersonal character, i.e. be widely known to representatives of different generations within one linguistic culture; be repeatedly reproduced by each individual in their discourse (Karaulov, 1987: 216). V. Krasnykh (1997) proposed to distinguish precedent texts and precedent phenomena, by which the researcher understands

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170 verbal and verbalized units. The precedent name and precedent statement belong to the first group, and the precedent text and situation to the second.

Precedent texts and precedent phenomena preserve social and cultural information. They often have a concise form, extreme expressiveness and capacity, show the ability to unfold the entire content of the text in the mind of the individual, provided that both communicators belong to the same linguistic culture. Therefore, their language form can take the form of one token – its own name, onym. The most important is the set of information that does not undergo significant changes in any interpretation. This property of precedent phenomena makes them easy to recognize and understandable for representatives of different generations of the same linguistic culture (Semochko, 2012: 205).

Under this approach, fiction acquires special significance as a reflection of a syncretic image of national character, in the genres of which precedent texts are widely used as carriers of culturally significant and conditioned information. In the process of translating such texts, the translator must make decisions related to both the recognition of precedent phenomena in the original text and the peculiarities of the transmission of culturally specific information by means of another language.

object of study of modern linguists, taking into account different perspectives of scientific research. Very perspective in modern linguistics is the analysis of onomastic strategies used for self- and other-referencing as part of mobile phone interaction (Aldrin, 2019). Thus, the investigation of the influence of social factors on the name giving from the linguistic point of view can be considered significant (Zerkina et al., 2018) and a research work of proper names from a corpus linguistic point of view, which presents their linguistic status, meaning and grammar and seeks to outline the theoretical foundations for establishing a connection between onomastics and corpus linguistics can be considered important (Motschenbacher, 2020).

In addition, anthroponyms can have a manipulative effect on human consciousness.

Manipulation is understood, following Dutch linguist T. van Dijk, as a form of domination or abuse of power associated with control of consciousness, access to knowledge and information, and the influence on mental models, emotions, any ideas and beliefs (Dijk, 2012; Maillat, 2013). It is believed that in any communication you can use any language resources to manipulatively influence the cognitive and behavioral activities of the recipient, which allows you to change the knowledge of the recipient, to predict their emotional reactions and behaviour (Peshkova, 2017).

Literature Review Everyone who begins to study a foreign language cannot comprehend various facts and realities of life in another country until they have learnt enough information about the mentality, way of life, prejudices of the people whose language is being studied. National languages differ not so much in individual parameters as in the whole set of verbal and nonverbal information (Grishaeva, 2008: 118). The source of such nonverbal information in an artistic text is units of different language levels, among which anthroponyms play an important role.

The surname, a constant component of an anthroponym, is the element that is inherited. The surname is traditionally considered as an important part of people’s history, of their language: knowledge of the etymology of surnames gives an idea of the origin of ancestors, their occupation, hallmarks of man. Surnames contain information about the social status and place of residence of the individual.

Anthroponyms as special linguistic units are the

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It has been established that an important method of implementing manipulative influence in media discourse is the appeal to emotionally charged precedent phenomena (Sakharuk, 2015). The functions of precedent units in modern German and Ukrainian religious media discourse have been considered and their manipulative influence on the addressee of communication have been clarified (Levko, 2021: 126).

The manipulative influence of proper names in the period of National Socialism, including anthroponyms, on the consciousness of the Germans has already attracted the attention of philologists. In particular, it was proved that the German names of that time should have emphasized the “blood and spiritual” kinship with the ancient Germans, people and gods of the North. Popular at that time, on the one hand, were the ancient Germanic names Dieter, Detlev, Margit, Ingrid, Uta, and on the other – double names due to their sound and rhetorical nature.

Double names were written through a hyphen, for example: Berndt-Walter, Dietmar-Gerhard etc. (Klemperer, 1998: 42-43).

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One of the most problematic elements for translators of literary works is proper names. A translator of a literature work deals with very important questions: Should proper names be translated or not? What are the main problems on the way of their translation? (Meyer, 2008; Nyangeri & Wangari, 2019). In addition, translators pay attention to the theoretical development of the translation of proper names: researchers have identified a set of translation techniques that are recommended for use in the reproduction of proper names – transliteration, transcription, transposition and tracing (Zacharova, 2019: 243). On the other hand, the ability of purely mechanical selection of appropriate phonemes or graphemes in the target language is not enough. The translation of proper names as well as surnames requires from the translator taking into account a number of different factors: the specifics of the language environment of the name, its complex semantic structure, unique features of form and etymology, word-forming characteristics, connections with other categories and units of the language. Ignoring these properties of the name creates a number of practical problems that the translator needs to deal with in practice (Nuriev, 2013: 11-12). Besides, it is important not only to identify specific translation problems, but also the phenomenon of decision-making by the translator under conditions of multiple choice (Dorofeieva & Kotsur, 2020: 92).

The lack of sufficient research on the linguistic and cultural specifics of German surnames of the National Socialist era, taking into account the modern theory of precedent, determines the relevance of the study.

Therefore, the purpose of our research is to determine the linguistic and cultural aspects of the characters’ names in the novel “Die Abenteuer des Werner Holt” by Dieter Noll (Book 1) (Noll, 1984), to analyze the methods of their translation and the peculiarities of the translator’s decision-making. It should be emphasized that the study of various ways of translating surnames into Ukrainian is a responsible task for every translator, for if the features of the historical epoch, culture and social order are misunderstood it can lead to inadequate translation.

Methodology and Material General scientific (observation, generalization, description) and special research methods were used in this work. The etymological method was used to determine the origin and development of

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the meanings of surnames. The ways of creating German and Ukrainian surnames were revealed by the method of word-formation analysis. The method of analysis of dictionary definitions was used to establish and clarify the content of the surname; the method of lexical and semantic analyses was used to determine the semantics of surnames and reveal their additional meanings.

Phonetic, lexical, semantic and stylistic properties of the studied units were established by the method of linguistic and stylistic analyses.

The descriptive method was used to determine the translation strategies of transliteration and transcription of German surnames of Dieter Noll’s novel in the Ukrainian translation by Yuriy Mykhailyuk.

To achieve this purpose we offer an algorithm of actions, which consists of three stages. At the first stage of our research it is necessary to identify precedent phenomena and surnames of the characters of the novel and to determine the associations to which the surnames appeal and which are realized in the text of the novel. At the second stage, we establish the most common way of rendering German surnames in the Ukrainian translation of the novel. At the third stage we analyze successful and unsuccessful decisions of the translator.

The study was based on 190 surnames selected by a continuous sample from the text of the novel “Die Abenteuer des Werner Holt” by Dieter Noll, and their Ukrainian equivalents (Noll, 1984; 1961).

Results and Discussion Addressing the manifestation, reflection and fixation of culture by German surnames in the text of the novel “Die Abenteuer des Werner Holt” by German writer Dieter Noll and their Ukrainian translation is both an urgent and a difficult task. The artistic world of this work is distinguished by its linguistic and cultural specifics, as it reveals a connection with the world’s and German history. The novel depicts the events of 1933-1945, the most tragic period of time in both social-political and cultural life of Germany.

The text of the first book of Dieter Noll’s novel was published in 1960 and the Ukrainian translation appeared five years later. The time of the creation and publication of the novel was turbulent: the final partition of Germany was in its progress, the construction of the Berlin Wall was completed. The global Caribbean crisis had put the world at risk of a nuclear catastrophe, and

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172 the German leadership had been trying to acquire its own nuclear weapons in recent years (Heffernen, 2011). However, the then and present relevance of this novel, interest in its Ukrainian translation is explained not only by the anti-war nature of the work, but also by the skill of the author, who accurately portrayed reality, perfectly recreated the atmosphere of the historical period of World War II, depicted the spiritual world of his characters.

The artistic world, in which the protagonist of the novel, young romantic Werner Holt / Вернер Гольт and his peers exist, has a distinct linguistic and cultural specificity, embodied in the system of surnames of the novel, which are divided into precedent and fictitious.

By precedent surnames we mean the names of world-famous German and foreign writers, authors of musical works, military leaders, military theorists, philosophers (22% of the total number of studied surnames). Precedent names preserve historical and cultural information about the world and society, reflecting the peculiarities of the development of human thinking. There is no coincidence that the author of the novel uses precedent names, as their involvement in the literary text helps to successfully characterize the individual, first of all, their mental state, ideological preferences, views.

The surnames of this group are used to reflect the gradual alienation of the new generation from the humanistic ideals, from the moral values embodied in the works of German or world literature and art. The author uses the names of the classics of German literature Rilke, Goethe, Schiller, Fontanne, Storm, foreign authors Dostoevsky, Jack London, Hugo, composers Rubinstein, Chopin, Haydn, Schumann, etc. to demonstrate the level of education of the main characters.

For example, a high level of intelligence, positive moral qualities, the presence of abstract, critical thinking, a high level of empathy of the novel’s characters are embodied by appealing to the precedent names of the world literature classics, which are well known to a wide range of readers and evoke positive emotions. On the contrary, ignorance of the character, lack of knowledge of precedent names or texts are used for irony and cause a negative attitude of the reader to ignorance. For instance, Wolzow/Вольцов, one of the main characters, when asked if he reads Faust, explains the existence of this book in his library as follows: “Ich hab gehört, da soll ein Soldat mitspielen, ich hab mir das angesehn:

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militärisch ist es uninteressant” / “Я просто чув, що там серед діючих осіб є солдат. Проглянув ті місця, – з точки зору військового зовсім не цікаво” (Noll, 1984: 34; 1961).

The ideological preferences of the novel’s characters, the militarization of society, the formation in the minds of young people of the cult of war are embodied through an appeal to the names of Roman, Germanic, German commanders, military theorists, historians: Marius, Verdy du Vernois, Rüstow, Prince Kraft zu Hohenlohe, Carl Gottlieb von Clausewitz etc.

(Noll, 1984).

Romanticizing, glorification of war is the content of the literature by new German writers who gained recognition and popularity during National Socialism: the president of the Reichsschrifttumskammer Hanns Johst / Ганс Йост, lyricist and playwright Walter Flex / Вальтер Флекс, poet Wulf Sörensen / Вульф Серенсен, writer Karl May / Карл Май; film director, author of the drama about Frederick the Great (1942) Veit Harlan / Вейт Гарлан etc.

(Noll, 1984; 1961). These anthroponyms not only reflect information about the literary, musical, political, ideological preferences of the characters of the novel, but also mark the connection with the history and culture of Germany, as well as national and temporal specifics.

The group of fictitious surnames (78%), i.e. the names of persons who exist only in the artistic world of the novel, is divided into three subgroups: 1.

2.

3.

German surnames (58,6%): Holt, Vetter, Küchler, Meißner, Kiefer, Weber, Klein, Kirsch, Schulze, Berger, Thieß etc.

Foreign surnames (6,4%): Gomulka, Wolzow, Zemtzki, Kutschera, Revetcki.

Author’s surnames (13%): Gottesknecht, Ziesche, Knack, Schöner, Klage, Rutscher etc.

The surnames of the first subgroup can be interpreted by the German ground. For example, the last name of the main character of the novel Holt/Гольт contains the component -hol, present in such German words as Holz, hold etc. The noun Holz means forest, wood. According to the digital dictionary of German surnames “Digitales Familiennamenwörterbuch Deutschlands (DFD)”, the name Holt was given to forest dwellers (DFD, 2021). The adjective hold is stylistically marked and contains an additional

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stylistic connotation “poetic, out-of-date”. Thus, the bearer of the surname with such a component of meaning is characterized by such features as graceful, cute and noble. Thus, the surname Holt contains stylistic and extralinguistic information, so it can be considered eloquent. We assume that the surname Holt is an allusion to the surname of the author of the novel Noll, which also consists of four letters and contains the component -ol.

professional activity: weaver (Weber), lumberjack or cloth merchant from the town of Meißen (Meißner), gardener or cherry merchant (Küchler), cooper (Kiefer). The surname Schulze/Шульце is derived from the name of the profession of an authorized person who represents the interests of a certain group of persons or a territorial district before the court (DFD, 2021).

Wiese/Візе is a classmate and friend of Holt. The name of the person comes from the Old German noun wisa “meadow”, therefore, its first bearer lived on or near an open lawn. The name Wiese was first mentioned in the Middle Ages. This family name originated in Silesia and belonged to the most influential families in the region (DFD, 2021). Both surnames, Holt and Wiese, are short, simple in structure, so we can assume that these two characters are descendants of ancient German families. The correlation of the bearers of these surnames, who are positive characters of the novel, forms a positive attitude towards the objects of the author’s sympathies.

The suffix -er is used to form the surname Berger/Бергер from the noun Berg “mountain”, which indicates the place of residence or the origin of its bearer (DFD, 2021).

This assumption is confirmed by the etymological analysis of the surname of one of the few female characters – Thieß/Тіс: the German surname Thieß is formed from the nickname Thieß. According to another version, this surname is derived from the patronymic Matthias, which was formed by omitting the unstressed syllable of the name Mat- (DFD, 2021). The character of Gundel Thieß / Гундула Тіс, a small girl in red boots, unlike other girls, who is forced to perform chores in the large family of a German officer, is an allusion to the image of the girl from Theodor Storm’s novella “Immensee”.

The surname Вурм/Wurm, which means “worm” in German, is also simple and short and evokes the associations of a small, insidious person who inspires fear and looks like a worm (DFD, 2021).

This name is an allusion to the villain Wurm in Schiller’s tragedy “Intrigue and Love” / “Kabale und Liebe“. In the play, he is the “Secretary of the President”, an inner barbarian responsible for all the insidious conspiracies against love.

The German surname Hampel/Гампель may belong to Lower Sorbian names, meaning “greedy man” (DFD, 2021).

Other German surnames in this subgroup, such as Küchler, Meißner, Kiefer, Weber etc., reflect the social status of the speakers. Some of them are formed by adding the suffixes -e, -el, -er to the creative basis of the corresponding verb to denote

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The name of the main character’s classmate Vetter/Феттер evokes associations with the adjective fett “fat”, which corresponds to the author’s characteristics of this character. The author draws attention to the boy’s overweight, his round child’s face, his shiny pig’s eyes, his flabby and slightly swollen body, because of which he was always mocked at (Noll, 1984: 150).

However, modern etymological dictionaries allow another understanding of this surname: cousin (DFD, 2021).

The criterion for distinguishing foreign surnames of the second subgroup is the common Slavic origin of their bearers: Gomulka, Wolzow, Zemtzki, Kutschera, Revetcki. It is known that a large part of Germany was inhabited by the Slavs at different times, which is reflected primarily in geographical names. Until the mid-1930s, a large number of toponyms of Slavic origin were preserved in Germany. In the names of settlements in the north and east of Germany there was an adjective wendisch, i.e. “Wends” (Lusatian Serbs) – a Slavic ethnic group that still lives in Germany. During National Socialism, the names of many towns and villages were changed.

For example, the adjective wendisch was removed from the compound names of some settlements in the historical principalities of Pomerania, Brandenburg, the regions of the Spreewald and Silesia (Datsishina, 2020: 114; Klemperer, 1998: 46-67).

The surname Kutschera/ Кутшера is a German variant of the Slavic surname Kucera or Kuczera.

The Kucera variant is of Czech or Slovak origin and means “curls”. This is the name of a person with curly hair. The spelling of the surname Kuczera contains the sibilant sound -cz, that is not peculiar to the German phonetic system, which suggests the Polish origin of the name. The bearers of this surname were curlers (DFD, 2021). Using the method of observing the functioning of the surname Kutschera in the text

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174 of the novel, it is established that the author uses this anthroponym without a name, usually with the appellative Hauptmann/капітан (captain).

Obviously, the purpose of such use is to program the emotional response of the reader’s alertness, which monitors the unfolding of the events of the novel.

The surnames Wolzow/ Вольцов and Gomulka/ Гомулка are of Slavic origin. The former contains the element -ow/-ов, which allows us to make assumptions about Wolzow’s ancestors, who may have originated from the area where the Lusatian Serbs used to live. Lusatian roots have toponyms ending in -au or -ow (-owe, -ouwe). In the novel, Wolzow is the personification of a man who is passionately devoted to military service, blindly believes in the victory of Germany and remains loyal to the regime. If we take into account the origin of the character named Gomulka, whose family lived in Dresden, his ancestors could have lived in Poland.

Slavic origins can also be traced in two other surnames: Zemtzki/Цемцький and Revetcki/Ревецький, which have an obscure etymology and end in -tzki/-tcki.

The surnames of the third subgroup are author’s formations: Gottesknecht, Ziesche, Knack, Schöner, Rutscher. Thus, the surname of caretaker Gottesknecht/Готтескнехт consists of two components: the noun Knecht “servant” and the attribute expressed by the noun in the genitive case, Gottes “God”. The semantic transparency of this eloquent surname, its positive emotional connotation have stylistic potential and manipulative influence on the mind of the reader. The sense of humor, self-irony of a former teacher of German literature and a class teacher of young cadets are embodied through an appeal to the name, which is undergoing transformation. The author expands the name due to the word Teufel “devil”, which has a negative emotional impact. Gottesknecht presents himself to young soldiers as follows: „Die mich kennen, <…> die sagen, ich sei wirklich Gottes Knecht, aber wer hier groß angibt, der wird meinen, ich sei des Teufels.“ / «Ті, хто знає мене, говорять, начебто я справді «слуга божий», а хто заважатиме на уроках, той швидко переконається, що я слуга самого чорта» (Noll, 1984; 1961). The creation of the pun Gottesknecht - Knecht des Teufels enriches the expressiveness of the text, attracts the reader’s attention and makes them think about the tragedy of the situation, the circumstances of which force the former literature teacher to become a caretaker.

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The anthroponym Ziesche also has a hidden meaning. The author describes the appearance of this character as follows: “war ein gedrungener blonder Junge von siebzehn Jahren, etwas dicklich, mit weibischen Zügen, unreiner Gesichtshaut und einer großen Warze an der linken Schläfe.” / “кремезний білявий юнак років сімнадцяти, трохи товстуватий, з прищавим жіночим обличчям і величезною бородавкою на лівій скроні.” (Noll, 1984: 150; 1961). Obviously, a character with such characteristics of appearance should not cause sympathy. This name has phonosemantic associations with the sounds produced by the snake. Characterizing the features of the character’s speech, the author chooses the verb zischen/шипіти “hiss” to create the image of an insidious person with an unpleasant appearance and speech defects and uses the technique of language punning: “Aber Ziesche zischte Holt ins Gesicht” / “Але Ціше прошипів йому прямо в обличчя” (Noll, 1984: 278; 1961).

Let’s go on to the stage of rendering German surnames in the Ukrainian translation of the novel. Transliteration is considered to be the traditional way of translating names and surnames. The names of the first subgroup were rendered by transliteration: Holt/Гольт, Gomulka/Гомулка, Vetter/Феттер, Thieß/Тіс, Wiese/Візе, Wurm/Вурм etc. Usually there is a combination and selection of options at the level of phonemes: the sounds of the original language are replaced by the sounds of the target text, closest to them in acoustic properties (Barchudarov, 1975: 176-177). Thus, in order to translate the German name Paul into Ukrainian, it is necessary to transliterate each German phoneme that is similar in articulation and sound to the phoneme of the Ukrainian language: [p] is replaced by the Ukrainian phoneme [п], the diphthong [au] – by the corresponding vowels [ау], and the German phoneme [l] – by the Ukrainian consonant [л’].

It is believed that the translator makes decisions not only at the level of phonemes or graphemes, but also at the level of the whole text. The names and surnames of the characters become the keywords that help to adjust the formation of the meaning of the new text. The translator allegedly imposes cultural filters on the translation: they must take into account culturally conditioned associative connections, unwanted intertextual potential of the name, phonosemantic associations etc. (Nuriev, 2013: 57).

The translator reproduces most of the surnames in the Ukrainian translation of the novel by

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transliteration: the phonemes -ö, -öh, -oe, -ü are replaced by their Ukrainian equivalents -е, -у or -ю, for example: Boek/Бек, Schöner/Шенер, Böhm/Бем, Düsenböker/Дузенбекер, Günsche/ Гюнше. Diphthongs -oi, -ei in German surnames are reproduced in Ukrainian by vowels -ой and ей, for example: Voigt/Фойгт, Klein/Клейн (Noll, 1984; 1961).

A number of surnames evoke various associations, which allows us to consider them eloquent. Those who do not know German, without special comments and explanations will not understand what the meaning of the name Wurm/Вурм is and why it is considered ugly.

The world literature traditionally gives its characters “speaking” names that cannot be translated literally without changes, it would be considered as an anachronism. But it is also unfair to deprive the reader of translated works of those things in which the reader of the original finds new associations and colors (Galperina, 2018).

Let us consider the specific features of translating surnames of the second and third subgroups. In some cases, the translator makes decisions not so much at the level of phonemes or graphemes as at the level of the text as a whole. Rendering the German surname of Slavic origin Kutschera into Ukrainian, the translator offers a variant Кутшера: he transliterates the surname, without replacing the German letters -tsch with the Ukrainian -ч, but chooses the letters -тш. The variant Кутшера only remotely resembles the Ukrainian surname Кучера with the stress on the second syllable. Perhaps the translator deliberately avoids unwanted phonosemantic associations due to minor manipulations with the word form. The translator also makes some substitutions when reproducing the Ukrainian version of the German surname Rutscher as Рутшер.

The original translator’s decision is observed when translating the surname of Dr. Zickel/Ціккель. The component of the surname Zick- denotes the sounds characteristic of a goat. At the first mention of this name, the translator chooses the variant ЦіккельМеме/Zikkel-Meme, i.e. adds the nickname Меме, which indicates the peculiarities of speech of this character: he stretches the words and inserts between them the sounds “me” or “mm”.

To convey this feature, the translator transliterates the last name: he renders the letter combination -ck by the doubled -кк, and extends the last name by adding the Меме component. In this way, the translator managed to convey to the

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Ukrainian reader the phonosemantic associations of this surname.

When transmitting the eloquent surname Ziesche as Ціше, the translator combines the techniques of transcription and transliteration: he correlates the phoneme Z with the closest sounding phoneme of the Ukrainian language Ц; changes the phoneme -ie into -і and the phoneme -sch – into the similar Ukrainian variant -ш. However, this Ukrainian version in no way conveys the full range of negative associations that this name contains in the original text.

Associations containing the German surname Klage are also lost. The word Klage means “cry, groan” or “complaint”: the bearer of this name appeals to the ethical norms of compassion, pity for the sick, old teacher; he tries to complain in order to protect himself from bullying and revenge of his students but receives no support.

Thus, the Ukrainian reader will not understand the hidden meanings of this name. The Ukrainian version of the character's surname Dr. Klage contains some substitutions - the German phoneme -a for the Ukrainian -я, which can be explained by the translator’s desire to convey the pronunciation of the sound -l, which differs from the Ukrainian equivalent in softening.

Conclusions Analysis of the German anthroponyms of the novel “Die Abenteuer des Werner Holt” by Dieter Noll in terms of precedent allows us to draw some conclusions on the linguistic and cultural specificities of surnames.

All the surnames of the novel form a system and are divided into precedent and fictitious surnames. Most of the analyzed surnames (78%) are fictitious and differ in etymology, wordformation, semantic and stylistic potential.

Precedent surnames (22%) appeal to the positive or negative emotions of the reader in order to form sympathy or antipathy towards the actions of the characters of the novel, encourage the reader to empathize, vigilance.

Translation of German precedent and fictitious surnames in a literary text is not a purely mechanical selection of the corresponding letter combinations or phonemes in the target language. This task requires from the translator a full comprehension of the text principles by the reader and a differentiated approach to each case, taking into account a number of different factors.

One of such factors may be the precedent nature of the name, which becomes a powerful means of

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176 creating an artistic image that performs various functions.

The prospect of further research is the study of the linguistic and cultural specificities and peculiarities of the translation of German anthroponyms in the second book of the novel.

An interesting area of future research can be the creative work of Ukrainian translators of Dieter Noll’s novels, Yuri Mykhailyuk and Yakov Prilipko, which will complement the picture of the history of Ukrainian-German literary translation of the second half of the 20th century.

The in-depth study of the phenomenon of decision-making in translation from the standpoint of psycholinguistics is also promising.

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DOI: https://doi.org/10.34069/AI/2021.44.08.17 How to Cite: Harahonych, O., Homonay, V., Kuznietsova, Z., Khrapenko, O., & Nazarko, A. (2021). Realization and restriction of constitutional rights in vaccination against Covid-19. Amazonia Investiga, 10(44), 178-187. https://doi.org/10.34069/AI/2021.44.08.17

Realization and restriction of constitutional rights in vaccination against Covid-19 Реалізація та обмеження конституційних прав людини в умовах вакцинації проти COVID-19 Received: July 10, 2021

Accepted: September 12, 2021

Written by: Oleksandr Harahonych66 https://orcid.org/0000-0002-8984-2399 Vasyl Homonay67 https://orcid.org/0000-0002-1479-4329 Zoia Kuznietsova68 https://orcid.org/0000-0002-1654-5254 Olena Khrapenko69 https://orcid.org/0000-0001-5864-0367 Arkadii Nazarko70 https://orcid.org/0000-0001-8041-2758 Abstract

Анотація

The democratic community has faced a challenge regarding the existence or absence of a legal basis for the introduction of compulsory vaccination. The scholars asked the question: Is compulsory vaccination against COVID-19 a violation of personal non-property human rights or the implementation by the state of its duty to ensure the sanitary and epidemiological wellbeing of the entire population and protect society from a deadly disease? Methodology of work: logical-semantic, historical, analytical, extrapolation, comparative legal methods, methods of comparison and generalization, analysis, and synthesis. Results of the study: the assessment of the historical and international experience in the implementation of vaccination was carried out; the negative and positive aspects of mass vaccination were considered; the legal regulation of vaccination was studied; the legal framework in this area was compared; the judicial practice regarding legal relations that arise during vaccination was analyzed. The conclusion is made regarding priority in the

Демократичне співтовариство зіткнулось з викликом щодо наявності або відсутність правових підстав введення примусової вакцинації. Правознавці задалися питанням «обов'язкова вакцинація проти COVID-19 - це порушення особистих немайнових прав людини або здійснення державою свого обов'язку забезпечити санітарноепідеміологічне благополуччя всього населення і захистити суспільство від смертельно небезпечної хвороби? Методологія роботи: логіко-семантичний, історичний, аналітичний, екстраполяції, порівняльно-правовий методи, методи зіставлення та узагальнення, аналізу, і синтезу. Результати дослідження: проведено оцінку історичного і міжнародного досвіду реалізації вакцинації, розглянуто негативні і позитивні сторони масової вакцинації, досліджено правове регулювання вакцинації, проведено зіставлення і порівняння правової бази в цій сфері, детально розглянута судова практика щодо правовідносин, які виникають

66

Doctor of Legal Sciences, Associate Professor, Associate Professor of the Department of Economic Law and Economic Process, Institute of Law, Taras Shevchenko National University of Kyiv, Kyiv, Ukraine.

67 Doctor of Legal Sciences, Associate Professor of the Department of Constitutional Law and Comparative Law of the State Higher Educational Institution "Uzhgorod National University", Ukraine.

68 Ph. D., Associate Professor of the Department of Constitutional Law and Justice of the I. I. Mechnikov Odessa National University, Ukraine.

69 Ph. D., Associate Professor of the Department of Judiciary, Law Enforcement Authorities and Advocacy National University «Odesa Law Academy», Ukraine.

70 Ph. D., Associate Professor of Constitutional Law Department of National University "Odesa Law Academy", Ukraine.

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context of the increasing spread of COVID-19, the observance of which rights is key during the mandatory mass vaccination (the right to a highquality, highly effective vaccine, the right to choose a vaccine, equal availability of a vaccine, the right to receive compensation in case of negative consequences after vaccination, etc.).

Keywords: constitutional rights, pandemic, COVID-19, vaccination, immunization, vaccine.

під час вакцинації. Зроблено висновок щодо пріоритетності в умовах посилення поширення COVID-19, досліджено дотримання яких прав є ключовим під час проведення обов'язкової масової вакцинації (право на якісну, високоефективну вакцину, право на вибір вакцини, равнодоступность до вакцини, право на отримання компенсації в разі настання негативних наслідків після вакцинації і т.д). Ключові слова: конституційні права, пандемія, COVID-19, вакцинація, імунізація, вакцина.

Introduction In the context of the increasing spread of COVID-19 and the need to strengthen methods of countering the pandemic, it is relevant to consider the observance of fundamental human rights and freedoms in this process. Vaccination is the leading method to combat COVID-19 today. In historical retrospect, the mandatory mass vaccination campaign was carried out to reduce morbidity and mortality from smallpox, measles, polio, fever, malaria, etc. And at all times, there was an acute issue of preserving the status of the rule of law, observing the human right to self-determination, and at the same time fulfilling the central function of the state – protecting the rights and freedoms of the entire society as a whole. Research into balancing private and public interests in the COVID-19 vaccination process is both theoretically and practically necessary.

Constitutional human rights are the fundamental, most valuable human opportunities that are guaranteed, protected, and protected by the constitution. These are the right to life, the right to personal security, the right to health protection, medical care, the right to a safe environment for life and health, the right to freedom of movement, the right to education, the right to work, the right to leisure and others.

These rights belong to a person from birth and are inalienable. It is prohibited to narrow the content or scope of existing constitutional rights and freedoms. The above rights are enshrined in the constitution, and this document is always at the center of the political and social life of the country, determines the relationship between the state and society.

At the end of 2019, the world community faced a global problem – the emergence and spread of the COVID-19 disease. COVID-19 is a potentially severe acute respiratory infection

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caused by the SARS-CoV-2 coronavirus. The COVID-19 pandemic has become one of the greatest challenges of the 21st century, affecting virtually all aspects of human existence (Kharytonov, Kharytonova, Kolodin, & Tkalych, 2020).

On March 11, 2020, the spread of the virus was declared a pandemic by the World Health Organization. This event had a tremendous impact on all spheres of human life.

Today, the dominant measure to combat COVID19 is mass vaccination of the population.

McKinsey & Company report "When will the COVID-19 pandemic end?" (Charumilind, Craven, Lamb, Sabow, Singhal, & Wilson, 2021) described and analyzed in detail the impact of vaccination on reducing the rate of spread of COVID-19 in different states. It is likely that at the end of 2021, herd immunity will develop in Israel, the United Kingdom, the United States, the United Arab Emirates, and most of the European Union due to an increase in vaccination rates. Vaccination continues to be the most powerful way to influence the COVID-19 pandemic. The level of herd immunity required to influence the epidemic situation (a decrease in the incidence rate, a change in the form of a disease in favor of a more easily tolerated one, a decrease in mortality, complete elimination of the virus) is still being studied. For example, the herd immunity threshold for rubella has already been defined and amounts to 68-80%, and for much more contagious measles – 92-95%. But the practice shows that mass immunization against COVID-19 is already working, since the number of deaths globally and in each state separately is decreasing.

Thus, the introduction of mandatory mass vaccination against COVID-19 is quite likely.

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180 Obviously, in the process of eliminating the coronavirus, there have been legal changes, in particular, the emergence of new legal relations and the transformation of existing ones. It is relevant to investigate the process of exercising the right to personal integrity, the right to health, the right to freedom of movement, the right to work, the right to education, the right to leisure, the right to observe sanitary and epidemic wellbeing during mass immunization. In the context of the COVID-19 pandemic, it is necessary to consider the relationship between the individual's right to self-determination and the right of the world community to defeat COVID-19 and live in a healthy, prosperous environment. Today, it is practically necessary to investigate such human rights for further development: the right to a high-quality, safe vaccine against COVID19, the right to choose a vaccine, the right to equal access to vaccines for citizens within the borders of one state and a fair distribution of vaccines among states all over the world, the liability of the coronavirus vaccine manufacturer and the human right to compensation for harm or injury sustained after the vaccine.

The object of the research is the implementation and limitation of human rights in the process of vaccination against COVID-19. The purpose of the work is to consider, study, analyze and draw conclusions regarding the implementation and limitation of constitutional human rights during the need for vaccination against COVID-19.

Theoretical Framework or Literature Review In the legal scientific community, the legal aspect of vaccination is always relevant, as it is directly related to the implementation and protection of the right to health and, at the same time, the observance of other constitutional human rights.

This topic was studied in detail by such domestic – Gladun (2014), Gubanova (2017), Demchenko and Dubytska (2017), and Kruglova (2011), and foreign – Bellver Capella (2021), Arbeláez-Campillo and Villasmil Espinoza (2020), Castillo Guido (2020), Carnero Arroyo (2021), Preciado Domenech, Segalés Fidalgo, and Fotinopulu Basurko (2021).

Thus, Gladun (2014) argues that the introduction of administrative coercion is justified to implement a solution to the issue of public health protection when public interests prevail over the private interests of individuals.

Gubanova (2017) emphasizes that vaccination of the population is a process of administrative and legal regulation, in which the dominant method

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of management is imperative, and the legal inequality of the subjects of legal relations is a way to ensure public interest and the implementation of sanitary and epidemic wellbeing. Besides, Gubanova (2017) notes the use in the legislation of different in form but identical in content, concepts – immunization and vaccination. Also, the attention to the presence in the regulatory legal acts of the definition of what is "vaccination” and the absence of a legislative definition of the concept of "immunization" is drawn.

Kruglova (2011), analyzing the Ukrainian legislation in the field of vaccination, argues that compulsory vaccination is a violation of personal non-property human rights. The state has created conditions for pseudo-voluntary vaccination.

The reality is that immunization is a responsibility. In support of her position, the scientist refers to Art. 15 of the Law of Ukraine "On Protection of the Population from Infectious Diseases" (Law No. 1645-III, 2000), which states that children who have not undergone preventive vaccination, which is approved by the vaccination calendar, are not allowed in children's institutions. Thus, the constitutional right of children to education is limited. The constitutional right of parents or persons who replace them to work is also limited since not everyone has the opportunity to leave the child under the supervision of other persons. Kruglova (2011) concludes that the transition of the need for vaccination to the status of mandatory actions of citizens of our state leads to a situation that a citizen of understanding the prospect of violation of his rights in the future is under psychological pressure and must take risks to obtain other constitutional rights and have the right to exercise them. It is required to change the compulsory vaccination to voluntary and, accordingly, legislate that compulsory vaccination is a restriction and discrimination.

Demchenko and Dubytska (2017) expressed their opinion on the benefit-risk ratio. The benefits of a vaccine are only possible when the risk of spreading disease / mortality from disease to vaccination is greater than the risk of spreading disease / mortality from disease (including any side effects). The principal point is that the benefits of immunization increase with the number of people immunized. The essence is the creation of herd immunity. Given this aspect, it is possible to assume that compulsory vaccination depends on the current epidemic state in a particular country. Moreover, the introduction of compulsory vaccination is seen as

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a way of responding to a state of emergency and can be used by the state.

Most of the studies on the legal aspects of vaccination were considered in the absence of a pandemic, the decline of the need for states and international organizations to take drastic measures to eliminate the COVID-19 disease.

Considering that compulsory vaccination against COVID-19 has already been introduced in some states, taking into account that mass vaccination is the leading method of struggle, the topic of researching the implementation and limitation of constitutional human rights during compulsory vaccination against COVID-19 is unmistakably relevant today.

Methodology During the study of the subject of implementation and limitation of constitutional human rights in conditions of vaccination, a set of methods and techniques were used, namely: logical-semantic, historical, analytical, extrapolation, comparative-legal, comparison, generalization, analysis, and synthesis.

The logical-semantic method is applied to define, deepen and analyze the conceptual apparatus.

Semantic analysis is a basic research method since semantics is a branch of linguistics that deals with the definition of the meaning of a unit of language. With the help of semantics, the meaning and meaning of the concept are described.

The historical method made it possible to review the infectious diseases that existed in world history, an overview of methods for their destruction, an overview of the vaccination, and the moral and ethical aspects that arose in this process. The historical method helps to identify positive and negative results in retrospect and what factors influenced this. The experience of past decisions regarding the elimination of infectious diseases, in particular the historic success of the victory over smallpox, can be fundamental to predicting the future and modeling the most rational methods of combating COVID-19.

Comparative legal, the method of comparison and generalization was utilized to compare, determine the presence or absence of a general orientation regarding vaccination of such regulatory legal acts: Universal Declaration of Human Rights (United Nations, 1948), International Covenant on Economic, Social and Cultural Rights (United Nations, 1966), Constitution of Ukraine (Law No. 254к/96-ВР), Law of Ukraine "On Protection of Population from Infectious Diseases" (Law No. 1645-III, 2000), Law of Ukraine "On Education" (Law No. 2145-VIII 2017), Law of Ukraine "On ensuring the sanitary and epidemic well-being of the population" (Law No. 4004-XII, 1994), order of the Ministry of Health Ukraine of September 16, 2011, No. 595 "Calendar of preventive vaccinations in Ukraine".

In the absence of current legislation in Ukraine regarding compulsory vaccination against COVID-19, but having existing legislation on compulsory vaccination against diphtheria, cough, measles, poliomyelitis, tetanus, and tuberculosis, an extrapolation method was used in the study. In a general sense, extrapolation is the transfer of conclusions made about any part of objects or phenomena to the entire set of these objects or phenomena, as well as to some other part of them. Thus, compulsory immunization against COVID-19 will have similar legal aspects.

Methods of analysis and synthesis have helped investigate how constitutional human rights can be realized during COVID-19 vaccination. With the help of the analysis, the examination of the constituent parts and components of the object of research is carried out, and the method of synthesis is always inextricably linked with this method (which consists in combining knowledge about the properties of individual components).

Thus, these methods became key to conclude whether compulsory vaccination against COVID-19 is a violation of personal nonproperty human rights (the right to freely dispose of one's body, the right to self-determination, the right to free movement, the right to work, the right to education, leisure rights).

Results and Discussion

Using the analytical method, the current Ukrainian legislation, key international legal acts, Ukrainian and foreign judicial practice and court decisions of the European Court of Human Rights in the field of the right to health, the right to self-determination, the right to personal integrity, the right to education and the right to sanitary and epidemic well-being.

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A fundamental human right is a right to life and health. At the international level, for the first time, the right to health is enshrined in the Constitution of the World Health Organization (1946). The UN is the most important organization that allows us to unite the states' actions (Pavlova, Polunina, Tkalych,

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182 Mankovskyi, & Zubair, 2020). In the Universal Declaration of Human Rights (United Nations,1948), Article 25 stipulates health as an integral part of the right to an adequate standard of living. The right to health is also enshrined in the 1966 International Covenant on Economic, Social, and Cultural Rights. A serious challenge for the health of an individual and the entire population of the world is a pandemic. A pandemic is defined as an unusually strong epidemic that has spread over the territory of countries, continents; the highest degree of development of the epidemic process. Historical experience shows that a pandemic is not only a field of medicine but also a serious factor in legal, political, and legislative changes. States that commit themselves to respect and protect the human right to health in a pandemic are mobilizing health systems and choosing a strategy to combat.

Today, the world community is in the process of eliminating the coronavirus disease pandemic – COVID-19. According to the World Health Organization (hereinafter – WHO), as of September 1, 2021, over 219 million cases of the disease were registered worldwide; more than 4.5 million people have died, and more than 195 million have recovered. In response to the pandemic, global measures have been taken, including the development of a vaccine against COVID-19 and the subsequent vaccination of the population.

It is fair to say that vaccination is the success of humanity and the leading method of eradicating the disease. Confirmation of this is the decrease in the level of epidemic danger of vaccinepreventable infections, significant progress in the elimination of poliomyelitis and measles, and the eradication of smallpox in the world. Smallpox was completely eradicated in 1980 (the last case was reported in 1977 in Somalia). Since 1980, the immunization of the population has been finished. Thanks to international efforts, smallpox became the first disease that mankind was able to defeat with the help of vaccination at the XXXIII session of WHO in 1980, the eradication of smallpox in the world was solemnly announced.

The international community has spent the US $ 300 million on the Global Smallpox Eradication Program and saves US $ 1 billion annually, but even this is incomparable to the global preservation of human health and life. WHO Director-General Margaret Chan noted in 2010: “Eradication of smallpox has shown that with strong shared commitment, coherence and an international spirit of solidarity, ambitious global health goals

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can be achieved” (World Health Organization, 2010).

Mass vaccination is a complex and ambitious task: to create billions of vaccine doses (and make them equally available), provide conditions for the storage and accounting of the vaccine, train medical personnel, deliver the vaccine to the most remote areas, organize vaccination sites and finance the entire process. The positive outcome of the smallpox control program has shown that these issues can be resolved.

However, it globally affects the speed of the fight against the pandemic and the attitude to vaccination, the ethical and legal aspect, in particular, the confrontation between the right to privacy, personal inviolability of an individual, and public interest in protecting the health of a large number of people (society). History shows that anti-vaccination movements, bloody riots, outbreaks of xenophobia, and discrimination took place against the background of the state's fight against pandemics during the introduction of compulsory vaccination in society (Littre, 1873).

Today, taking into account the positive experience of mass immunization, conditions are being created in the world community to encourage, encourage and oblige citizens to be vaccinated against COVID-19. Legislative regulation of vaccination ranges from voluntary or recommended to mandatory for a particular circle of people or mandatory for all citizens.

And it is great to maintain a balance between private and public interest.

The lack of an information campaign about the benefits and positive results of the creation of herd immunity, the dissemination of scientifically unconfirmed information, the high rates of mutation of the coronavirus, the elevation of isolated cases of side effects from the vaccine to mass status, and low enlightenment in legal aspects gives rise to the position that the requirements for unvaccinated citizens against COVID-19 is a violation of the right to self-determination, the right to free movement, the right to work, the right to education, and the right to leisure. It should be noted here that, in accordance with judicial practice, human rights may be limited if it is necessary to respect the rights and freedoms of other people, as well as if required to protect national, global interests, and to ensure the public good. We consider it appropriate to draw attention to a case from the US judicial practice, namely the case of Heningin Jacobson v.

Massachusetts (Jacobson v. Massachusetts U.S.,

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1905). In 1902, during the smallpox eradication campaign, the obligation of the entire adult population to be vaccinated or to pay a $ 5 fine was established at the legislative level. Jacobson refused to get vaccinated, citing the fact that everyone has the freedom to choose how they behave with their body and health. The court issued a judgment, in which it indicated that, based on the principles of protection and the priority, society has the right to protect itself from a pandemic that threatens all its members.

Thus, the autonomy of the will in the right to choose whether to be vaccinated or not is not absolute and should be inferior when it comes to the health interests of the whole society.

In modern Ukraine, there is also the practice of compulsory vaccination. Following Article 12 of the Law of Ukraine "On Protection of the Population from Infectious Diseases" (Law No. 1645-III, 2000) (hereinafter - the Law). The law provides a list of mandatory vaccines against diphtheria, cough, measles, poliomyelitis, tetanus, and tuberculosis. It is also important to note that employees of certain professions, industries, and organizations, whose activities may lead to the massive spread of infectious disease, are required to vaccinate against other relevant infectious diseases. In the event of refusal or evasion, these employees are suspended from work. In the event of the occurrence of especially dangerous infectious diseases in the relevant territory, compulsory vaccination may be carried out according to epidemic indicators. To date, the number of compulsory vaccinations has been expanded.

Following the Calendar of Preventive Vaccinations, which was approved by order of the Ministry of Health of Ukraine No. 595 dated September 16, 2011, mandatory vaccination against 10 infectious diseases is envisaged. In 2022, it is planned to add mandatory preventive vaccination against pneumococcal infection.

Considering the above, in Ukraine, there are all legal grounds to make mandatory immunization against COVID-19. The current legislation of Ukraine regulates that capable citizens are subject to mandatory preventive vaccination only with their consent, after receiving objective information about vaccination, the consequences of refusal to vaccinate, and possible postvaccination complications.

Compulsory immunization of children to take place with the consent of parents or legal representatives. These norms are fully consistent with international human rights practice, in particular, the Universal Declaration of Human Rights (United Nations, 1948) (part 2, article 29) determines that, in the exercise of his rights and freedoms,

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everyone can be subject only to such restrictions that are established by law solely to ensure due respect and respect for the rights of others, guarantee just public order and the general welfare in a democratic society. In this case, we propose to consider whether the restriction of admission of unvaccinated children to educational institutions is a violation of the right to education. The Law of Ukraine "On Education" (Law No. 2145-VIII, 2017) states that no one can be restricted in the right to receive an education. The right to education is guaranteed regardless of age, gender, race, health status, disability, citizenship, nationality, political, religious or other beliefs, skin color, place of residence, the language of communication, origin, social and property status, as well as other circumstances and characteristics. But also, a relevant provision is the right of all participants in the educational process to a safe, harmless healthy learning environment and the obligation to be responsible for their health and the health of others. Judicial practice shows that the removal of an unvaccinated child from the educational process is legal and legitimate. The state, having established a ban on the attendance of an educational institution by a child who has not undergone mandatory preventive vaccination, is fulfilling its obligation to ensure the safety of life and health of all participants in the educational process, including an unvaccinated child (PERSON_1 v Zaporozhye Academic Lyceum of the Zaporozhye City Council of the Zaporozhye Region, 2021). These rights are guaranteed by Art. 3, 27 and 49 of the Constitution of Ukraine (Law No. 254к/96-ВР, 1996). In particular, Article 49 of the Constitution of Ukraine establishes that the state ensures the sanitary and epidemic well-being of the population. Analyzing the definition of the concept of "sanitary and epidemic well-being", which is enshrined in the Law of Ukraine "On ensuring the sanitary and epidemic well-being of the population" (Law No. 4004-XII, 1994), it is possible to detail constitutional prescriptions as the right of every person to be (live, work, study) in an environment that is safe for his health, that is, there is no threat, in particular, of viral infections that are transmitted from person to person.

Thus, when deciding the question of the relationship between the norms of the right to education and the right to a healthy environment, one cannot but recognize the priority of the common good and ensuring the safety of life and health of all participants in the educational process. The practice of the European Court of

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184 Human Rights (ECHR: Ukrainian Aspect, 2021) confirms this conclusion. On April 8, 2021, the court ruled in the case Vavřička and Others v. the Czech Republic. Parents, who refuse preventive immunization for their children, in their opinion, have been discriminated against and have become victims of interference with their rights.

For example, one of them was fined 3,000 Czech crowns for refusing to vaccinate their children.

Unvaccinated children were subsequently expelled from educational institutions. In this regard, the parents filed a complaint with the ECHR based on a violation of the right to respect for a person's private life by the state authorities.

The court pointed out in its decision that compulsory preventive vaccination, which has become the subject of the appeal, is an adequate and socially necessary decision of the state on the way of realizing the right of the whole society to a healthy environment and the prevalence of public, public interest over private, individual.

In recent years, there has been an increase in scientific papers that cover the legal regulation of relations in the field of professional sports (Kharytonov, Kharytonova, Tkalych, Bolokan, Samilo, & Tolmachevska, 2021; Kharytonov, Kharytonova, Kostruba, Tkalych, & Tolmachevska, 2020; Tkalych, Davydova, & Tolmachevska, 2020). Thus, an interesting topic of the study is the compulsory vaccination of athletes by order, and football players in particular. Besides, it is important to pay attention to the sanctions (Bolokan, Samoylenko, Tkalych, Panchenko, & Dmytriv, 2021), that are applied in case of violation of the rules on mandatory vaccination of participants in sports competitions, and corruption schemes, that arise in connection with concealing the fact of nonvaccination (Kolomoiets, Tkalych, Melnyk, Panchenko, & Tolmachevska, 2021).

Considering the paragraph 1 of Art. 12 of the International Covenant on Economic, Social, and Cultural Rights (United Nations, 1966) It should be noted, that the State is obliged to take measures to terminate the activities of individuals or corporations that violate the right to health of others. And the duty to fulfill lies in the fact that the state is obliged to take the appropriate legislative, administrative, budgetary, judicial, incentive, and other measures aimed at the full realization of the right to health. In particular, one of the specific commitments is the prevention and treatment of epidemic diseases. General Comment No. 14 (UN Economic and Social Council, 2000) noted that the immunization program is one strategy for

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dealing with a pandemic and a component of the right to prevent and treat disease.

Based on the foregoing, we believe that compulsory vaccination is not a violation of human rights since if the state refuses to take active measures to combat the pandemic, the likelihood of negative consequences for the health of the whole society increases.

However, if the process of compulsory immunization against COVID-19 itself is not a violation of constitutional rights, then the right to receive a quality vaccine, the right to choose a vaccine, equal accessibility to a vaccine, and the right to compensation for damages from violation of the above rights are fundamental.

Article 13 of the Law of Ukraine "On Protection of the Population from Infectious Diseases" states that only domestic or foreign, but registered in Ukraine, immunobiological drugs should be used for preventive vaccinations. State authorities are obliged to ensure control over the quality, efficacy, safety, and correctness of the use of medical immunobiological drugs (Law No. 1645-III, 2000). Additionally, the requirements for high efficiency, safety, and quality of the vaccine are spelled out in the Law of Ukraine "On Medicines" (Law No. 123/96ВР, 1996). In the absence of the above signs in the vaccine, there is a violation of Part 1 of Art. 6 of the Law of Ukraine "On Protection of Consumer Rights" (Law No. 1023-XII, 1991), which states that the seller (manufacturer, performer) is obliged to transfer products of proper quality to the consumer.

A great right during vaccination is the right to monitor the occurrence of negative consequences and provide compensation. For example, in some countries where vaccination is mandatory, compensation for damage from the negative consequences of immunization is provided (for example, France, Hungary, Italy, and Slovenia).

These legal measures reflect the belief that it is fair and reasonable for the immunization program to take responsibility and compensate those affected, thereby building and maintaining public confidence. It is also necessary to remark that even in some countries where there are no mandatory vaccination programs, there is legislation providing for compensation for harm or injury sustained after the introduction of the vaccine (this practice is common in Austria, Denmark, Finland, Germany, Iceland, Norway, Sweden, Switzerland, and Great Britain). In Ukraine, in connection with the adoption of the Law of Ukraine "On Amendments to Article 9-2

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of the Law of Ukraine" On Medicines (Law No. 1353-IX, 2021) "regarding the state registration of vaccines or other medical immunobiological preparations under liabilities," the vaccine manufacturer or the owner of the registration certificate is released from liability for negative consequences that can occur after the use of the coronavirus vaccine or any other drugs against COVID-19, if these drugs were used as instructed. However, the legislator specifies that in the event of negative consequences, the state ensures the implementation of appropriate compensation payments. The explanatory note to the bill specifies that this measure was necessary for Ukraine to receive vaccines against coronavirus through the COVAX mechanism.

3.

COVAX is a global initiative to accelerate the development and manufacture of COVID-19 vaccines and ensure their delivery to low- and middle-income countries.

COVAX is coordinated by the Global Alliance for Vaccines and Immunization, WHO and the Coalition for Innovation for Epidemic Preparedness, and UNICEF works with manufacturers and partners to procure, transport, logistics and store COVID19 vaccines. COVAX aims to address the crisis of unequal access to vaccines, export restrictions, and any other trade barriers to COVID-19 vaccines and materials needed to make them (World Health Organization, 2021).

4.

Conclusions Based on the results of a study on the implementation and limitation of constitutional human rights in the context of vaccination against COVID-19, the following conclusions were made: 1.

2.

Today, the world community is faced with a global problem - the COVID-19 pandemic.

The pandemic is not unprecedented. History shows that humanity has long been in confrontation and struggle with infectious diseases. The historic success is the victory over the smallpox pandemic. The immunization program is one of the strategies for ending the pandemic.

Compulsory mass vaccination is the leading eradication method for COVID-19. In such conditions, the emergence of new legal relations and the transformation of existing ones are obvious.

Based on the norms of the current foreign and Ukrainian legislation, mandatory preventive vaccination has long existed. In particular, the Law of Ukraine "On Protection of the Population from Infectious

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Diseases" contains a list of mandatory vaccines against diphtheria, cough, measles, poliomyelitis, tetanus, and tuberculosis. The aforementioned Law also regulates that in the event of a threat of an especially dangerous infectious disease or a massive spread of a dangerous infectious disease in the relevant territories and facilities, compulsory preventive vaccinations against this infectious disease may be carried out for epidemic indications. Thus, in Ukraine, there is already a legal mechanism for deciding on the introduction of compulsory vaccination against COVID-19.

Constitutional rights are given to a person from birth and are inalienable, but cannot be considered absolute. In the exercise of his rights and freedoms, a person may be subject to restrictions that are established by law, but solely to ensure proper respect and observance of the rights of others, guarantee a fair public order and the general welfare in a democratic society. Therefore, when deciding the question of the relationship between the right of an individual to selfdetermination and the right of society to a healthy environment by eliminating a pandemic of a particularly dangerous disease, one cannot but recognize the priority of the common good and ensuring the safety of life for the entire world community.

In the process of implementing mass vaccination against COVID-19, the key is to respect and protect such rights: the right to a high-quality, highly effective, safe vaccine, the right to choose a vaccine based on individual characteristics and personal preferences, the right to maximum vaccine availability for people within the borders of one state and the fair distribution of vaccines among nations around the world, the responsibility of the coronavirus vaccine manufacturers and the human right to compensation for harm or injury sustained after the vaccine was proposed. These rights, ways of their implementation, and protection mechanisms must be substantively and in detail prescribed at the legislative level.

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Law No. 1353-IX, On amendments to Article 92 of the Law of Ukraine "On Medicines" regarding the state registration of vaccines or other medical immunobiological preparations under obligations. Bulletin of the Verkhovna Rada of Ukraine, Kyiv, Ukraine, March 19, 2021.

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covid y su incidencia sobre el derecho a la intimidad. Jurisdicción social: Revista de la Comisión de lo Social de Juezas y Jueces para la Democracia, Vol. 221, pp. 21-54.

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385-389.

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Pryimachenko, D., Lipynskyi, V., Maslova, A., Voloshina, S., Varhuliak, O. / Volume 10 - Issue 44: 188-197 / August, 2021

DOI: https://doi.org/10.34069/AI/2021.44.08.18 How to Cite: Pryimachenko, D., Lipynskyi, V., Maslova, A., Voloshina, S., & Varhuliak, O. (2021). Accessibility of facilities and services for people with disabilities in the paradigm of law. Amazonia Investiga, 10(44), 188-197. https://doi.org/10.34069/AI/2021.44.08.18

Accessibility of facilities and services for people with disabilities in the paradigm of law Доступність об’єктів і послуг для осіб з інвалідністю в парадигмі права Received: July 20, 2021

Accepted: September 9, 2021

Written by: Dmytro Pryimachenko71 https://orcid.org/0000-0001-8504-2450 Vladyslav Lipynskyi 72 https://orcid.org/0000-0002-4373-3330 Anna Maslova73 https://orcid.org/0000-0002-4404-9792 Svitlana Voloshina74 https://orcid.org/0000-0001-7148-6923 Olena Varhuliak75 https://orcid.org/0000-0003-2097-4681 Abstract

Анотація

The authors of the article touch on the major topic of ensuring access of persons with disabilities to facilities and services, which is an indicator of guaranteeing the rights and freedoms of such citizens and ultimately determines the quality of life of such people. The article analyzes the current Ukrainian legislation, as well as international legal acts governing relations regarding access of persons with disabilities to the general infrastructure. The methodology of the article includes methods of analysis, synthesis, formal-legal and comparative-legal methods. The essence of the right of persons with disabilities to access facilities and services is the legally guaranteed possibility of these persons to freely use all facilities and services without any barriers, including through the adaptation of the latter or their special design. The authors of the article thoroughly researched the concept and content of the right of persons with disabilities to access facilities and services. Finally, the authors concluded that the current domestic legislation, although ensuring the minimum level of rights of

Автори статті торкаються важливої теми забезпечення доступу осіб з інвалідністю до об’єктів і послуг, що є індикатором забезпечення прав і свобод таких громадян і в кінцевому рахунку визначає якість життя таких людей. У статті проаналізовано чинне українське законодавство, а також міжнародні правові акти, що регулюють відносини з приводу доступу осіб з інвалідністю до загальної інфраструктури. Методологія статті методи аналізу, синтезу, формально-юридичний і порівняльноправовий методи. Зміст права осіб з інвалідністю на доступність об’єктів і послуг полягає у законодавчо гарантованій можливості цих осіб вільно користуватися усіма об’єктами і послугами без будь-яких бар’єрів, у тому числі завдяки адаптації останніх чи спеціальному їх дизайну. Автори статті ґрунтовно дослідили поняття і зміст права на доступ осіб з інвалідністю до об’єктів і послуг, зокрема такі його складові, як право на універсальний дизайн і право на розумне пристосування. Крім того, в статті

71

Doctor of Law, Professor, Vice-Rector of the University of Customs and Finance, Ukraine.

Doctor of Law, Associate Professor, Head of the Educational and Scientific Institute of law and international legal relations of the University of Customs and Finance, Ukraine.

73 Doctor of Law, Associate Professor of the Department of Administrative and Customs Law, University of Customs and Finance, Ukraine.

74 Ph.D., Associate Professor at the Department of Labour and Social Security Law of the National University “Odesa Law Academy”, Ukraine.

75 Ph.D. candidate of the University of Customs and Finance, Ukraine.

72

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persons with disabilities in the study area but needs to be improved taking into account the positive experience of European countries and following the United Nations Convention on the Rights of Persons with Disabilities.

Keywords: human rights, persons with disabilities, accessibility of facilities and services, inclusiveness, low mobility groups.

здійснено глибокий аналіз чинного законодавства України і міжнародних нормативно-правових актів, присвячених правам осіб з інвалідністю. Автори статті зробили висновок, що чинне вітчизняне законодавство, хоч і забезпечує на мінімальному рівні права осіб з інвалідністю у досліджуваній сфері, проте потребує удосконалення з урахуванням позитивного досвіду Європейських країн і у відповідності до Конвенції ООН про права осіб з інвалідністю. Ключові слова: права людини, особи з інвалідністю, доступність об’єктів і послуг, інклюзивність, маломобільні групи населення.

Introduction The right of persons with disabilities to access facilities and services is a complex, multifaceted category, with both general and specific properties. It is concretized in many norms and provisions of legislative acts, as it is inextricably linked with other human rights.

The lack of thorough research in this area has the consequence of a lack of clear understanding of the nature of the right of persons with disabilities to access facilities and services, including the administrative and civil law of its implementation.

certain circumstances, the elderly, mothers with baby carriages, people with suitcases, temporarily ill people who use sticks or crutches, people with large food packages, etc. need accessibility.

Thus, the authors of this study aimed to thoroughly investigate all aspects of ensuring the right of persons with disabilities to access facilities and services and to carefully analyze domestic and international legislation in this area.

Theoretical Framework or Literature Review

Thus, the right to access facilities and services directly to persons with disabilities is guaranteed by the United Nations Convention on the Rights of Persons with Disabilities (2006) (the Convention). The subjects of the studied law are persons with disabilities, regardless of affiliation to a particular state. At the same time, each state, depending on the level of its development, provides persons with disabilities with opportunities to exercise the relevant right.

People with disabilities who need special / assistive devices or technologies to move or orient themselves can be grouped into the following groups:   

persons with musculoskeletal disorders; persons with visual impairment, and; persons with hearing impairment.

Considering the right to the accessibility of facilities and services, it should be borne in mind, that the need for accessibility of the external environment is present in a much larger number of people than people with disabilities. Under

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The authors both in Ukraine and abroad pay attention to the protection of the rights of persons with special needs.

Thus, David Allen Larson (2014) in his article «Access to Justice for Persons with Disabilities: An Emerging Strategy». The article examines some aspects of the use of new technologies in the field of legal protection of the rights of persons with disabilities. In addition, the author makes his own suggestions about additional ways to use the technology.

Moreover, Gloria L. Krahn, Deborah Klein Walker and Rosaly Correa-De-Araujo, (2015) in their article «Persons With Disabilities as an Unrecognized Health Disparity Population», show that the issue of ensuring the rights of people with disabilities is very important, because, for example, in the United States, people with severe disabilities make up more than 12% of the total population. The authors study the current state of ensuring the rights of people with disabilities. In addition, they offer

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190 their own vision of methods of overcoming the inequality of these categories of persons with other citizens. Rather, they include improving access to health care, building the capacity of the health workforce, including people with disabilities in public health programs, and increasing emergency preparedness.

Besides, Andrea Broderick (2015), in her book «The Long and Winding Road to Equality and Inclusion for Persons with Disabilities», examines several aspects of the equality and nondiscrimination norms in the UN Convention on the Rights of Persons with Disabilities (2006) (CRPD). The book thoroughly analyzes the norms of the CRPD. The author concludes that the provisions of the Convention are sufficient to ensure a decent level of rights for persons with disabilities, but much remains to be done in law enforcement.

What is more, Andrea Broderick and Lisa Waddington (2016) presented a report on the status of implementation of regulations on the protection of the rights of persons with disabilities. The report examines the state of fulfillment of the responsibilities of EU member states in the field of protection of people from discrimination on the grounds of disability.

Finally, Andrea Broderick and Delia Ferri (2019) in their textbook on international and European disability law and policy, analyze the interaction between different legal systems and sources. The book contains detailed information on various aspects of the legal provision of the rights of persons with disabilities. It is based on the analysis of CRPD standards, supplemented by interesting cases from practical activities.

Despite the large number of scientific developments on the issue of ensuring the rights of persons with disabilities, some aspects of the relevant relations remain poorly covered. In particular, the issues of accessibility of facilities and services for people with disabilities need more thorough analysis.

Methodology The basic methods used by the authors in preparing this study include methods of analysis and synthesis.

So, analysis and synthesis are two diametrically opposite methods of scientific knowledge, which are mutually complementary and, thanks to their joint use, allow to achieve the depth and

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completeness of research, as well as to confirm the reliability of the data obtained.

Analysis is the division of the model of an object into its constituent parts, properties, signs, relations and their subsequent study individually or in various combinations. The analysis of state and legal phenomena, coupled with formalization, allows us to fix the constituent elements, find out the nature of the relationship between them, systematize, abstracting from secondary properties and signs.

Thus, the method of analysis allowed us to clarify the essence of the concept of "accessibility" of persons with disabilities to infrastructure and services, to establish its constituent elements, including physical accessibility (absence of physical barriers), for example – transport accessibility, accessibility entrance to government and other buildings, etc., and actual accessibility (availability of information, services, etc.), for example - information accessibility, accessibility to justice.

Synthesis, as noted above, is the process of cognition, the opposite of analysis, which consists in combining knowledge about individual parts, properties, relations of a certain object into a certain system based on the results of their previous analytical research. The result of such a synthesis can be knowledge about the interaction of parts or properties of the object under study, the establishment of causal relationships between its individual components, finding the dependence of the function of each part of the object on the function of the object as a whole.

Moreover, the method of synthesis allowed the authors of the study to formulate clear ways to overcome the problems associated with the accessibility of citizens with disability to facilities and services, and thus ensure the protection of their constitutional rights to normal life. The main goal of the state and the public in this aspect is the creation of an inclusive society, in particular, ensuring universal design, introduction of modifications and adaptations of space, curricula, public services taking into account the needs of people with disabilities.

Regarding such traditional methods for legal research as the formal-logical and comparativelegal method, they helped to formulate proposals for improving the current legislation in the study area, taking into account the positive experience of foreign countries in ensuring the rights of persons with disabilities, as well as thoroughly

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analyze domestic legislation. the subject of compliance of its provisions with international regulations in the field under study – in particular, the Convention on the Rights of Persons with Disabilities.

Results and Discussion At the international level, the basic document containing guarantees for the rights of persons with disabilities is the Convention (United Nations, 2006). In particular, Article 9 § 1 of the Convention guarantees persons with disabilities equal access to facilities and services.

Within the meaning of the Convention (United Nations, 2006), these facilities and services include buildings, roads, transport, and other internal and external facilities, including schools, houses, medical facilities and workplaces, information, communication, and other services, including electronic services and emergency services.

The cited provision of the Convention clearly outlines the list of facilities and services to which access should be provided for persons with disabilities, as well as obliges the state to take appropriate measures. Among other things, we consider it necessary to emphasize the territorial affiliation of certain facilities and services, in particular, at the village and city levels. Thus, the legislator at the level of an international legal act has established a kind of prohibition of discrimination against persons with disabilities at the place of residence.

It should be noted that the right of persons with disabilities to access facilities and services is not enshrined in the Constitution of Ukraine (Law No. 254к/96-ВР, 1996), but certain aspects are sanctified in Articles 21, 34, 36, 38, 43, 50, 53, 57, 59 of the Constitution.

Concerning national legislation, according to Article 4 of the Law of Ukraine, "On Fundamentals of Social Protection of Persons with Disabilities in Ukraine" (Law No. 875-XII, 1991), the state's activities to persons with disabilities are manifested in the creation of legal, economic, political, social, psychological, etc.

The content of this article shows more detailed than the Convention (United Nations, 2006) powers of the state to ensure access to facilities and services for persons with disabilities, as it defines the list of activities of the state, namely: "creation of legal, economic, political, social,

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psychological and other conditions" and "identifying, removing obstacles and barriers to the provision of rights and meeting needs, including access to…". Moreover, Article 4 of the Law No. 875-XII (1991), covers all spheres of life of persons with disabilities, thereby obliging the state to ensure unimpeded access to them.

Remarkably, the legislator uses the concept of "barriers" because their presence makes accessibility impossible. Today, in the sphere of life of people with disabilities, the following barriers to integration into society are still encountered, along with others: 



mental barriers, which are probably the most common social phenomenon. They consist in the specific attitude of people to people with disabilities, misunderstanding of their problems and, thus, cause the urgent need to eliminate them; physical barriers, which are the second most negative phenomenon. This is a lack of architectural and transport accessibility, which is the main obstacle to access for people with disabilities to education, work, culture, sports, information, tourism, etc.

When arranging the street environment adjacent to the building, entrances, and interior space (corridors, rooms, classrooms, halls, etc.), it is necessary to take into account the possibility and features of using compensatory and aids used by people with disabilities, the degree of damage to such people and their nosology. For example, a person moving in a wheelchair needs more room to maneuver and no thresholds, curbs, stairs, steps, steep slopes, etc. on the roads.

Some tactile and contrast landmarks, visual accompaniment of visual announcements, Braille markings, etc. are necessary for safe movement and better memorization of routes for the visually impaired. For people with hearing impairments, it is essential not only to have communication technologies – available visual information (including the danger in the bathrooms), but also the presence of staff trained in the basics of sign language (Azin, Baida, Grybalsky, & Krasyukova-Enns, 2013). The concept of "available transport" can be considered, first, as the accessibility of the vehicle itself; secondly, as a transport infrastructure arranged following current standards and needs of people with disabilities and low mobility groups (parking spaces, entrances to terminals, elevators and escalators, telephone booths, trade and catering

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

establishments on the territory of stations; universal toilets; information in appropriate formats, etc.). Thus, "transport accessibility" is the opportunity given to people with physical, sensory, or cognitive impairments to remain mobile and use independently under all conditions all services and vehicles that are open and provided to the entire population (Azin, Baida, Grybalsky, & Krasyukova-Enns, 2013). information barriers, which in most cases affect people with visual impairments (no duplication of visual information by audio information), hearing (no duplication of visual information by audio data), mental retardation, and mental disorders (lack of data in simplified language). These barriers are caused by the non-use of existing information formats that take into account the needs of people with disabilities with visual, hearing, mental disorders, and speech retardation.

Access to information and means of communication is an assential aspect of ensuring active participation in society and a condition for the realization of rights for all people. Access to information includes the right to seek, receive and impart information and ideas relating to human rights, civil, social, political and economic issues.

The issue of ensuring information accessibility concerns all aspects of life of people with disabilities: accessibility of information in transport, when traveling at railway stations and airports, in catering establishments, hospitals, pharmacies; during the educational process – the release of textbooks in Braille or on electronic media; in television programs using sign language; theatrical performances and works of art, materials for voting during the election process, etc.

Information accessibility for people with disabilities should take into account the degree and type of functional impairment. How to ensure, for example, access to information and communication for deaf people? The key in this matter is the observance of the principles of accessibility and recognition of sign language, culture, and identity of the deaf.

According to the World Federation of the Deaf, more than 40% of countries do not broadcast news and programs about current events in sign language, only 22% of countries provide subtitling services. There are only a few countries, one of them, Thailand, that provides

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the issuance of government documents in the sign language of the country (United Nations, 2010).

Ensuring information accessibility is the most serious condition for the integration of the blind and partially sighted into society. It can be represented in different ways: Braille, large print, audio, electronic means, tactile.

ATMs have become an integral part of modern life. But are the needs of blind people who have the right to use the bank's services on an equal footing with others taken into account? Most often – no. The proliferation of inaccessible ATMs and the use of credit cards, which are inaccessible to blind and partially sighted users, discriminate against this group of people and lead to serious privacy problems because they have to rely on the help of others (United Nations, 2010).

Here is another example: the use of PDF files, which are often inaccessible to blind people.

Some organizations and companies use scanned files that are completely inaccessible to them.

This is another indication that the individual needs of such users are often not taken into account. Today, many information services are provided through websites. They are increasingly becoming the only service option for many people. Unfortunately, not all service providers (hotels, shops, libraries, banks, hospitals, etc.) provide access to their websites. It is especially necessary to give people with disabilities of various nosologies information during emergencies. If the hazard information is not presented in accessible formats, it poses a threat to the lives of many people.

Many people with disabilities use assistive technologies, which include several technological solutions – from simple devices (such as hearing aids) to complex text-to-speech programs used by the blind to work on a computer, use software applications, access web pages, etc. Assistive technologies provide people with disabilities with a tandard interface with ways of interacting and output formats that meet their needs.

Accessibility products (or assistive technologies) are special hardware and software that significantly increase the accessibility of computers for people with disabilities.

In particular: 

alternative keyboards of different sizes with different keyboard layouts and angles;

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



  



electronic pointing devices that allow you to control the movement of the pointer on the screen with ultrasound, infrared rays, eye movements, signals of nerve endings, and brain waves; control devices by breathing and swallowing – use one of the types of access using switches. In the standard configuration, a saliva extraction device is attached to the switch. The user activates the switch with his breath; joysticks - connect to the port for the "mouse" and are used to control the pointer on the screen; the magnifier works like glass, which enlarges the image and increases its sharpness; institutional barriers to the legal regulation of various aspects of the life of persons with disabilities: either the needs of persons with disabilities are not taken into account, or are not fully taken into account or without taking into account the interests of this category of persons, or contradict their needs, or certain legal requirements are not implemented in practice, and; financial, due to the financial inability of the vast majority of people with disabilities to meet even vital needs due to poverty and impoverishment.

An idea of the existing barriers makes it possible to classify accessibility by type, namely:    

architectural (accessibility of buildings); transport and transport infrastructure facilities; informational, and financial (sufficient financial security of persons with disabilities and economic justification of the value of goods and services, consumers of which are the specified category of the population).

Thus, accessible is one that is freely accessible in the context of architecture, finance, perception, and understanding, etc.

Hence, accessibility of facilities and services for people with disabilities means the property of the relevant facilities and services, which allows people in this category to use them freely without any barriers, including through adaptation or special design.

This applies to various aspects: 1) proper legislative regulation of the issue of employment of persons with disabilities, http:// www.amazoniainvestiga.info

taking into account all their needs and legitimate interests; 2) acceptance of people with disabilities as full participants in labor relations; 3) ensuring the architectural and transport accessibility of the environment, and; 4) use of information in accessible formats for its perception by persons with disabilities with visual, hearing, mental disorders, and mental retardation ...

Among other things, accessibility varies depending on the category of people targeted.

Thus, for people with musculoskeletal disorders, it is crucial to have no stairs or a standard elevator, while for people with hearing impairments, it is necessary to be able to communicate in sign language, for example, when buying drugs at the pharmacy.

Along with the concept of accessibility, you can often hear the concept of inclusiveness.

According to Article 1 of the Law of Ukraine "On Education" (Law No. 145-VIII, 2017): inclusive education – a system of educational services guaranteed by the state, based on the principles of non-discrimination, taking into account human diversity, effective involvement, and inclusion in the educational process of all its participants (paragraph 12 of the first part of Article 1).

Inclusiveness of buildings and structures – a set of architectural and planning, engineering, ergonomic, structural, and organizational measures to ensure the accessibility of buildings and structures in which every person, regardless of age, gender, disability, functional impairment, level of communication, or circumstances, can feel safe and comfortable without assistance and to the best of your ability.

The analysis of the above definitions gives grounds to conclude that the concepts of "accessibility" and "inclusiveness" are identical because they indicate the conditions under which persons with disabilities live in a society on an equal footing with other people, regardless of their disabilities.

The above gives grounds to single out the following characteristic features of the right of persons with disabilities to access facilities and services: 1) the subject of the right is a person with a disability. The right to access facilities and

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2) 3) 4)

5)

services is also used by other low-mobility groups (hereinafter – LMG), which will be discussed below; promotes equality of persons with disabilities in society; applies to all spheres of life of persons with disabilities without exception; may not be limited depending on the territorial affiliation of a person with a disability, and; is provided by the state by creating legal, economic, political, social, psychological, and other conditions by means of identifying, removing obstacles and barriers in all spheres of life of persons with disabilities.

Kondratenko (2019), in his thesis, noted that ensuring the accessibility of persons with persistent disorders of the body to the infrastructure in the social sphere is based on the following principles: creation of a barrier-free environment taking into account nosological forms of disability; reaching a state-public consensus on ways and means of adaptation to the physical and information environment; selection of optimal engineering and architectural solutions, application of universal design; harmonization of domestic legislation with international law; scientific, technical, and economic feasibility, adaptability of decisions, and; public and public control at all stages of the construction rationing and standardization procedure.

In Black's Legal Dictionary (Black, 1968), access is defined as a way to approach or enter; the right or opportunity to reach, use or visit. As we can see, the meaning refers more to the objects of the material world. At the same time, for example, the information sphere was left out of consideration.

It should be remarked, that Ovcharenko (2008) (in his monograph on access to justice) notes that access to justice is a state of organization of the judiciary and jurisdictional activity of the court in a democratic society, which satisfies the latter's need to resolve legally significant cases and meets the requirements of international law.

Access to justice is ensured by the optimal construction of the judicial system, which provides for the possibility of at least double review of the decision of the court of the first instance, is territorially close to the population,

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and a system of procedural guarantees to ensure the right to defend their position in court. Thus, art. 4 of the Civil Procedure Code of Ukraine (Law No. 1618-IV, 2004) stipulates that each person has the right to apply to the court independently or state authority may apply to the court on behalf of a person. The waiver of the right to go to court for protection is invalid. All of the above fully applies to people with disabilities.

The national legislator has also enshrined in regulations some definitions relating to the issue under study.

In particular, under the state building norms of Ukraine, accessibility for people with disabilities – providing women and men with disabilities access on an equal footing with others to the physical environment, transport, information and communication, information and communication technologies and systems, services, as in urban, and in rural areas (paragraph 3.8) (Ministry of Regional Development of Ukraine, 2018).

Analyzing the above definition, we consider it necessary to express the author's position on the inappropriateness of detail in the definition of women and men, as children were left out of consideration in this case. In addition, in our opinion, this definition does not give an idea of the content of the category, which it denotes, because accessibility is explained through access. In all other respects, the provision is almost identical to the first part of Article 9 of the Convention.

It should also be noted, about the understanding of accessibility by civil society, which takes care of the problems of people with disabilities. In particular, in a broad sense, accessibility is the removal of existing barriers that prevent a person from exercising his or her right to education, employment, leisure, health care, information, etc. Therefore, the assessment of the state of accessibility requires a comprehensive and universal approach. Accessibility is an indication of the extent to which a “product” or service can be used by a person with a disability as effectively as it is used by a person without a disability (Azin, Baida, Grybalsky, & Krasyukova-Enns, 2013).

Ways to ensure the accessibility of people with disabilities to facilities and services: Providing universal design; Universal Design is the basis for the design of the environment, public buildings, and structures,

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public vehicles, things, technologies, any information publications, or the way information and communication are presented in such a way that they can be used by the broadest sections of the population, regardless of their possible functional limitations. Universal Design is often used in the sense of "design for all", or "inclusive design". This is not a design style, but a focus on any type of design under the lens of social harmony. That is the process that begins with the designer's awareness of their own social responsibility for taking into account the changes that people experience throughout life, for its focus on the diversity of needs, capabilities, and experiences of users.

Thus, universal design is a strategy that aims to ensure that the design and components of any environment, product, communication, information technology, or service are equally accessible and understandable to all and meet the requirements of sharing, as independent and natural as possible, preferably without the need to adapt or apply specialized solutions.

This strategy provides a transition to a usercentered design based on a holistic approach aimed at meeting the needs of all people, taking into account possible changes in their abilities throughout life.

Providing a reasonable device.

At the same time, a smart device is an individual architectural and planning solution that provides LMG with a minimum standard of accessibility in terms of reconstruction, restoration, overhaul, and technical re-equipment of existing residential buildings and public buildings and structures.

Auxiliary technical means and mechanisms (ramps, lifting devices, mechanisms, portable ramps) can be a reasonable device (paragraph 3.36). At the same time, universal design is a design of buildings and structures that is most suitable for use by all categories of the population without the need for additional adaptation. The universal design does not preclude the use of assistive devices for specific groups of persons with disabilities (paragraph 3.49) (Ministry of Regional Development of Ukraine, 2018).

According to the Law of Ukraine "On Education" (Law No. 145-VIII, 2017) reasonable accommodation is the introduction if necessary in a particular case, the necessary modifications and adaptations to ensure the implementation of persons with special educational needs of the constitutional right to education on an equal

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footing with others (paragraph 24 of Article 1); universal design in the field of education – design of subjects, environment, educational programs, and services that ensures their maximum suitability for use by all persons without the necessary adaptation or special design (paragraph 28 of the first part of Article 1).

Among the important guarantees of the rights of persons with disabilities, the right to play sports is also important. And although the sports infrastructure in our country is not properly adapted to the needs of people with disabilities, the results of this year's Paralympic Games, where Ukrainians took sixth place overall, show that our country has significant potential in Paralympic sports. Therefore, domestic legislation and infrastructure must be brought into line with European standards as soon as possible (Tkalych, Davydova, & Tolmachevska, 2020; Kharytonov, Kharytonova, Kostruba, Tkalych, M., & Tolmachevska, 2020; Bolokan, Samoylenko, Tkalych, Panchenko, & Dmytriv, 2021; Kolomoiets, Tkalych, Melnyk, Panchenko, & Tolmachevska, 2021; Kharytonov, Kharytonova, Tkalych, Bolokan, Samilo, & Tolmachevska, 2021).

Conclusions In summary, the accessibility of facilities and services for people with disabilities is the property of the facilities and services, which allows people in this category to use them freely without any barriers, including through adaptation or special design.

Thus, the essence of the right of people with disabilities to access facilities and services is the ability of persons of this category to enjoy all the rights guaranteed to them without any restrictions due to the barrier of the environment and services.

The nature of the right of persons with disabilities to access facilities and services is the legally guaranteed possibility of these persons to freely use all facilities and services without any barriers, including through the adaptation of the latter or their special design.

This right is important not only for people with disabilities but also for the vast majority of people, such as the elderly, pregnant women, people with prams or suitcases, etc. (low mobility groups). Therefore, each of us in our lives in certain circumstances needs to ensure the availability of facilities and services.

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196 However, the level of barriers to the environment and services for people with disabilities and other low-mobility groups in Ukraine remains extremely high, and the necessary legislative and practical measures must be taken to remedy the negative situation with accessibility. A significant part of Ukrainian citizens with disabilities are not able to exercise their rights precisely because of inadequate accessibility.

Finally, creating an inclusive society requires a deeper understanding of existing barriers, the eradication of utopian strategies, and the provision of practical mechanisms for political decision-making. An inclusive society is based on fundamental human values, that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and must act concerning each other in a spirit of brotherhood."

Bibliographic references Azin, V.O., Baida, L. Yu., Grybalsky, Ya. V., & Krasyukova-Enns, O.V. (2013). Accessibility and universal design. Kyiv: Istina. ISBN 978966-97230-3-1.

Recovered from https://ud.org.ua/images/pdf/Dostupnist_ta_ universalniy_dizayn.pdf Bolokan, I., Samoylenko, G., Tkalych, M., Panchenko, B., & Dmytriv, V. (2021).

Sanciones en el deporte La relación entre la regulación legal y local (Sanctions in Sport: The Relationship Between Legal and Local Regulation). Retos, Vol 42, pp. 662-672.

Recovered from https://doi.org/10.47197/retos.v42i0.88681 Broderick, A. (2015). The Long and Winding Road to Equality and Inclusion for Persons with Disabilities: The United Nations Convention on the Rights of Persons with Disabilities. Intersentia. Maastricht. ISBN 978-1-78068-358-4.

DOI: 10.26481/dis.20151120ab, Recovered from https://cris.maastrichtuniversity.nl/ws/portalf iles/portal/1699051/guid-17dc193e-9ce940b4-8aeb-9b3756a275ae-ASSET1.0.pdf Broderick, A., & Ferri, D. (2019). International and European Disability Law and Policy: Text, Cases and Materials (Law in Context).

Cambridge: Cambridge University Press. doi: 10.1017/9781108289450 Broderick, A., & Waddington, L. (2016).

Disability law and reasonable accommodation beyond employment A legal analysis of the situation in EU Member States.

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Maastricht.

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2984788_Disability_law_and_reasonable_ac commodation_beyond_employment_A_lega l_analysis_of_the_situation_in_EU_Member _States Campbell Black, H. (1968). Black’s Law Dictionary. St. Paul, Minn.: West 1.

Publishing Co. Recovered from https://heimatundrecht.de/sites/default/files/ dokumente/Black'sLaw4th.pdf Kharytonov, E., Kharytonova, O., Kostruba, A., Tkalych, M., & Tolmachevska, Y. (2020).

Las peculiaridades de la regulación legal y no legal de las relaciones sociales en el ámbito del deporte (To the Peculiarities of Legal and Non-Legal Regulation of Social Relations in the Field of Sport). Retos, Vol 41, pp. 131137.

Recovered from https://doi.org/10.47197/retos.v0i41.84178 Kharytonov, E., Kharytonova, O., Tkalych, M., Bolokan, I., Samilo, H., & Tolmachevska, Y. (2021). Intellectual property law in the field of sports: specifics of manifestations and features of legal regulation. Cuestiones Políticas, 39(69), pp. 530-546. Recovered from https://doi.org/10.46398/cuestpol.3969.33 Kolomoiets, T., Tkalych, M., Melnyk, P., Panchenko, B., & Tolmachevska, Y. (2021).

Lucha contra la corrupción en el deporte: aspecto legal (Combating Corruption in Sport: Legal Aspect). Retos, Vol 41, pp. 746755.

Recovered from https://doi.org/10.47197/retos.v41i0.86975 Kondratenko, V. N. (2019). Administrative and legal means of ensuring the rights and freedoms of persons with disabilities.

(Doctoral thesis).

Kharkiv National University of Internal Affairs, Kharkiv.

Recovered from http://dspace.univd.edu.ua/xmlui/handle/123 456789/6693 Krahn, G. L., Walker, D.K., & Correa-DeAraujo, R. (2015). Persons with Disabilities as an Unrecognized Health Disparity Population. In: American Journal of Public Health, Num 105, pp. 198-206. Recovered from https://www.ncbi.nlm.nih.gov/pmc/articles/P MC4355692/ Larson, D. A. (2014). Article Access to Justice for Persons with Disabilities: An Emerging Strateg. Laws, Num 3, pp. 220–238.

DOI:10.3390/laws3020220. Recovered from https://www.mdpi.com/2075471X/3/2/220/pdf.

Law No. 145-VIII, On Education. Bulletin of the Verkhovna Rada of Ukraine, Kyiv, Ukraine, September 5, 2017. Recovered from

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https://zakon.rada.gov.ua/laws/show/214519#Text Law No. 1618-IV, Civil Procedure Code of Ukraine. Bulletin of the Verkhovna Rada of Ukraine, Kyiv, Ukraine, March 18, 2004.

Recovered from https://zakon.rada.gov.ua/laws/show/161815#Text Law No. 254к/96-ВР, Constitution of Ukraine.

Bulletin of the Verkhovna Rada of Ukraine, Kyiv, Ukraine, June 28, 1996. Recovered from https://zakon.rada.gov.ua/laws/show/254%D 0%BA/96-%D0%B2%D1%80#Text.

Law No. 875-XII, On Fundamentals of Social Protection of Persons with Disabilities in Ukraine. Bulletin of the Verkhovna Rada of Ukraine, Kyiv, Ukraine, March 21, 1991.

Recovered from https://zakon.rada.gov.ua/laws/show/87512#Text Ministry 0f Regional Development of Ukraine.

(2018). Inclusiveness of buildings and structures.

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Ukrarchbudinform. Kyiv. Recovered from https://zniiep.com.ua/INKLYUZIVNIST_B UDIVEL_I_SPORUD_DBN.doc

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Ovcharenko, O. M. (2008). Accessibility of justice and guarantees of its realization.

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Tkalych, M., Davydova, I., & Tolmachevska, Y. (2020). Current State and Prospects of Development of the Sports System of Ukraine: Legal Aspects. Retos, Vol 38, pp.

385-389.

Recovered from https://recyt.fecyt.es/index.php/retos/article/ view/76997 United Nations. (2006). convention on the rights of persons with Disabilities. Recovered from https://www.un.org/development/desa/disabi lities/convention-on-the-rights-of-personswith-disabilities.html United Nations. (2010). Committee on the Rights of Persons with Disabilities Day of General Discussion on “Accessibility”. Recovered from http://www.ohchr.org/EN/HRBodies/CRPD/ Pages/DGD7102010.aspx Committee on the Rights of Persons with Disabilities Day of General Discussion on “Accessibility”, 7 October 2010

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DOI: https://doi.org/10.34069/AI/2021.44.08.19 How to Cite: Izotova, N., Polishchuk, M., & Taranik-Tkachuk, K. (2021). Discourse analysis and digital technologies: (TikTok, hashtags, Instagram, YouTube): universal and specific aspects in international practice. Amazonia Investiga, 10(44), 198-206. https://doi.org/10.34069/AI/2021.44.08.19

Discourse analysis and digital technologies: (TikTok, hashtags, Instagram, YouTube): universal and specific aspects in international practice Дискурс і цифрові технології (TikTok, hashtags, Instagram, YouTube): універсальні і специфічні аспекти в міжнародній практиці Received: August 7, 2021

Accepted: September 25, 2021

Written by: Natalya Izotova76 https://orcid.org/0000-0003-2098-4687 Mariia Polishchuk77 https://orcid.org/0000-0002-5163-2273 Kateryna Taranik-Tkachuk78 https://orcid.org/0000-0003-0158-3124 Abstract

Анотація

Nowadays, digital communication helps people to establish contact quickly and conveniently, to convey their message, ideas, the vision of the world to a wide audience. In this regard, new challenges have emerged for discourse analysis in the field of research on the features of digital communication, digital communication practices, the impact of electronic communication technologies on the formation and conduct of discourse, application, and influence of extralinguistic factors on speech.

The article analyzes the problems and features of discourse using digital technologies, current trends, and new data in the field of social networks, hashtag activism, problems of involvement, activity, motivation of participants in online communication, formation of their online identity. The authors used systemfunctional, hermeneutic methods, linguistic analysis, methods of analysis, and synthesis in the framework of discourse theory. The study found and confirmed that the features of digital communication practices and the formation of discourse on the Internet are the widespread use of social networks, hashtags, social integration activities such as challenges, the use of special vocabulary specific to Internet communication,

Цифрова комунікація в наш час допомагає людям налагодити контакт швидко та зручно, донести своє повідомлення, ідеї, бачення світу до широкої авдиторії. У зв’язку з цим, для дискурс-аналізу постали нові виклики в царині досліджень особливостей цифрової комунікації, цифрових комунікативних практик, впливу технологій електронної комунікації на формування та ведення дискурсу, застосування та впливу екстралінгвістичних факторів на мовлення. У статті аналізуються проблеми та особливості дискурсу із застосуванням цифрових технологій, актуальні течії та нові дані в галузі соцмереж, хештег-активізму, проблем залучення, активності, мотивації учасників онлайн комунікації, формування їх онлайн ідентичності. Автори використали системнофункціональний, герменевтичний методи, лінгвістичний аналіз, прийоми аналізу та синтезу в рамках теорії дискурсу. У результаті дослідження встановлено та підтверджено, що особливостями цифрових комунікативних практик та формування дискурсу в мережі Інтернет є розповсюджене використання соцмереж, хештегів, проведення таких заходів соціальної

76

Doctor of Philology, Associate Professor, Professor of the Department of English Philology, Translation and Philosophy of Language named after Professor Morokhovsky, Kyiv National Linguistic University, Kyiv, Ukraine.

77 Teacher of the Department of Foreign Languages No. 1, National University "Odesa Law Academy", Odesa, Ukraine.

78 Candidate of Pedagogical Sciences, Associate Professor, Department of Ukrainian Philology and Slavic Studies, Kyiv National Linguistic University, Kyiv.

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the ability to express themselves and form their own online user identity. Extralinguistic factors of discourse formation in digital communicative practices are major from the point of view of discourse analysis.

Keywords: discourse, digital technologies, digital communication, digital communication practices, discourse analysis.

інтеграції як челенджі, використання особливої лексики, характерної саме для інтернет-комунікації, можливість самовираження та формування власної онлайн ідентичності користувачів. Важливими з точки зору дискурс-аналізу є екстралінгвістичні фактори формування дискурсу в цифрових комунікативних практиках. Ключові слова: дискурс, цифрові технології, цифрова комунікація, цифрові комунікативні практики, дискурс-аналіз.

Introduction Information technology is changing the world.

Today, this thesis does not look like an exaggeration but reflects the objective processes taking place in the world.

Modern technologies affect various spheres of life: from television to education, from rocketry to linguistics. Of course, linguistics changes more slowly than the media market, but these changes are fundamental. The invention of the Internet and the proliferation of online media and social networks have led to a real communication revolution, the same as that once caused by the advent of the printing press. Not only have the methods of communication changed, but also the structure, stylistics, and content of the relevant texts.

Instant messaging systems, simulation 3D games, "Internet of Things", "smart technologies", "mobile reporting" techniques, and other attributes of modern social reality, undoubtedly simplify our lives, making them more comfortable and more interactive (that is – social), but at the same time are still "closed" for study. What is new in communication when people use Viber? What determines our interpretation of the content posted on the Web largely – the content itself or the comments to it?

What does a person do socially significant when he likes a post on a social network? Do computer games form knowledge systems comparable to those formed by books or everyday speech communication? What does the hashtag have to do with the content of the message or with the conditional classification of reality? Does watching videos on YouTube affect the picture of the world of Web users? These questions remain unanswered largely because we do not yet know how to answer them.

The study aimed to analyze the features of the formation of discourse using digital

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communication technologies, respectively, to pay attention to such phenomena as digital communication practices, and other relevant phenomena in the environment of digital communication.

Theoretical Framework or Literature Review Discourse analysis and digital technologies are topical areas of research. The very concept of discourse has also been given enough attention to form a theoretical, conceptual basis of discourse analysis in which the study took place. For example, in the works of Fairclough (1995, 2013), van Dijk (1995, 2008, 2009), we can find the necessary theoretical framework for critical discourse analysis, research, discourse theory, the relationship of concepts of power and communication, the role of media in the formation of power discourse, pragmatics of discourse analysis, etc. Earlier, Foucault (2005, 2013), in his research, substantiated the relevance of discourse theory, introducing his ideas about the features and limits of its study (Hook, 2007). Papacharissi (2002, 2013) and Marwick (2013) study the analysis of the formation of online identity and the issues of representation in the media. Jones, Chik, and Hafner (2015) and Kozhemyakin (2016) specifically address discourse analysis and digital technologies.

Methodology We used the system-functional method to characterize how discourse manifests itself in digital communication using digital technologies. Hence, we have shown that online communication is a systemic phenomenon, and has its characteristics in different conditions. For example, this can be expressed in online activism (use of tags with social, political context, the call to action), involvement in social activity in the

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200 form of challenges in the social network, building a strategy of communication with subscribers, and the formation of online identity following the real priorities of social interaction and goals of online communication. Thus, it was demonstrated what features of the online communication system perform the corresponding functions in digital communication practices. We also analyze the relationship in the communication system between the addressee, the addressee, the context in which their communication is immersed, the means and methods they use for their communication, the extralinguistic factors of discourse formation, and its functions in online communication.

The authors applied the hermeneutic method to demonstrate the impact of changes in modern communication on the perception of theoretical concepts of communication as such. For example, it explains what changes in digital communication practices mean for the ontological status of communication, as well as how culture changes under the influence of digital technologies; explains the content and functions of current online communication and the values that are inherent in it.

Linguistic analysis was conducted to show the features of communication in their word-forming expression in the context of online discourse. To do this, we confirm what words are specific to website platforms, their meaning, functions, and origins, the difference between the lexicon in various social networks and its role in communication and the formation of online user identity, the development of their communication strategy.

latest communication revolution in the full sense a methodological problem.

Information technology has an impact on a person, his/her thinking, and language. And if the change of communication under the influence of technology causes certain changes in the mental activity of people and forms a new style of this thinking, that change in the nature and content of thinking has a significant effect on language, which is organically connected with thinking, is a means of communication, a material shell of thinking. Therefore, working with a computer, interacting with it changes the character interpersonal communication of people themselves, defines completely new features of this communication.

Is it possible to consider the discourse in this way during the transition period, when there are changes in the communication of ordinary citizens? From the point of view of Michel Foucault, it is unlikely, because to examine discourse, the researcher should distance himself from it historically or spatially, thus going beyond discourse, explaining it, creating his metadiscourse with which to analyze the one beyond which he went. (Foucault, 2005, 2013; Hook, 2007).

With the development of the methodological basis of discourse analysis came the opportunity to interpret it from within, during the process of change. At the same time, there is a need for constant testing of new tools for suitability for the analysis of current phenomena, which, moreover, are constantly changing under the influence of scientific and technological development and the emergence of new trends in communication.

Results and Discussion Discourse analysis and digital communications.

Approaches to the problem Traditional approaches and methods, addressed to the analysis of mainly oral and written verbal texts, are less and less satisfying our needs in the study of polycode, multimodal, and multimedia digital phenomena. Classical theoretical models of communication (from Harold Lasswell to Umberto Eco) are less and less able to explain the nature of communication between people on social networks. The tools of critical analysis of ideology and power are insensitive to the new forms of "soft power" and ideological control that are used in the digital communicative space.

All this makes the problem of describing the

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To adequately perceive changes in modern communication, it is possible to analyze them in the framework of discourse theory. It is necessary to perceive the discourse not as a set of texts, statements on a given topic but as a social practice (Kozhemyakin, 2016). The above means that it takes into account not so much the context of dispositions or knowledge but the context of communicative acts carried out by appropriate means, such as printed text, messages, posts, to fulfill their role in the social group (Jones, Chik, & Hafner, 2015). Thus, communicative practices (with the use of digital technologies) become the object of discourse analysis and acquire discursive properties.

In this sense, from the point of view of structuralism, attention should be paid to the

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means, tools, or products of communication.

However, in the aspect of discourse analysis, we should be interested in the process of producing the meaning of digital communication, which is expressed in the text or other forms of information transmission. Thus, such discourse practice is part of the sociocultural practice. The process of creating and consuming text is also a discourse practice. In turn, the communicative event is part of the social and cultural processes that come together in sociocultural practice (Fairclough, 1995).

Is online communication analogous to face-toface communication?

The use of digital technologies becomes essential in the life of society when they are used to perform acts of communication between people (communicative acts). For example, when a child reads a story from a tablet, calls each other on Facetime, participates in an online conference – these are communicative acts that have an expression in the real, analog world however can be carried out using digital technology. Their content does not change, but the format of their implementation affects perception.

From the point of view of theory, there is a question of the relationship between the virtual and the digital, in particular, concerning the ontological status of communication that takes place with the help of digital technologies. For example, Kozhemyakin (2016) points out that criticism is aimed at the fact that online communication is not an analogue of communication in life, can not be put on a par with it, therefore, to conduct discourse analysis using its tools is inappropriate. In this case, the status of online communication does not correspond to the communication that we used to perceive as the exchange of information between two full-fledged subjects. Rather, it is a balance with a digital "avatar". However, not everyone shares this view. For example, Jones, Chik, & Hafner (2015) point out that online communication is no less real than ordinary faceto-face communication, given the reality of social goals set by communicators in the process of communicating online and their compliance identities to these goals. In other words, when communication is honest, transparent, open, clear, unambiguous, and its subjects do not pretend to be who they are not, there should be no significant difference, whether it is in real life or online. So, from this point of view, the tools of discourse analysis, a critical look at what social roles are assigned to the addressee and the addressee, what is the context of their

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communication, what linguistic techniques they use, what they mean – all this becomes applicable to communication on the Internet, which is done through digital technology. For example, the socalled chat rooms (websites for chatting with other people in a chat format, where messages appear from top to bottom – new under the previous) do not virtualize sexual intercourse, they are not cybersex platforms (King, 2015). At the same time, they promote the social integration of communication participants through their communication on sexual topics, which is analogous to flirtation and courtship, only in digital form. Thus, the line between online and offline discourse is shaky, it is easily blurred when the features of digital communication (Internet slang, linguistic features of language or writing on the Internet, game jargon, etc.) sound in everyday life.

Online identity and representation as part of discourse formation Online identity formation and representation in social media is the focus of theoretical research in the field of social communications (Subrahmanyam & Šmahel, 2011; Marwick, 2013). Identity can mean how we think about ourselves (subjectivity), how different aspects of identity are portrayed in culture and the media (representation), or how we present ourselves to others (representation, or self-presentation) (Marwick, 2013). This can mean our personal or social identity as a member of the group (ibid).

Marwick (ibid) points out that the main subject of research in this aspect is the representation (Wynn & Katz, 1997; Papacharissi, 2002, 2010; Baym, 2010). When creating a social network profile, starting your blog, or microblogging, one of the first tasks is to fill in information about yourself or the person / organization / institution you represent. In this sense, the discourse that people choose to provide to the public as information about themselves, for example, in such social media as Facebook and Twitter, is interesting for discourse analysis. In addition, the identity is constructed based on interaction with other users: likes, reposts, comments, etc. These are integral parts of online identity formation.

The main idea is that, in contrast to face-to-face contact, the observer of someone else's identity on the Internet can open more information for analysis, plus it will be in constant open access.

For example, these can be photos with friends, marks (geolocation) of places where a person has visited, likes under posts on a specific topic, the content of posts and comments under them, etc.

In this aspect, the main thing to emphasize is that the analysis of discourse opens not only the

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202 sphere of speech, directly engraved in the text message but a whole array of personal data that can be used by him to form his identity online (representation). Accordingly, a person can consciously form his discourse, choosing the means of self-presentation as an extralinguistic factor in the formation of discourse, plus to form communication with others, having data about his audience, thus trying to establish effective and influential communication with others, using linguistic techniques to form communication or specific topics, which, in turn, complements the identity of the speaker and contributes to the goals of his representation on social media. Even e-mail addresses and nicknames can be part of the discourse, as the person thus complements his or her identity with individual details.

Social networks. Why do people sit in them, and why discourse analysis?

A feature of the social network TikTok was the use of veiled vocabulary, euphemisms, the use of figurative words to circumvent the rules of this network, which does not allow public access to hashtags that have a clear sexual meaning (Anderson, 2020). (You may not: intimidate or harass another, or promote sexually explicit material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age (Section 5 of TikTok's Terms of Service as of February (2021).) To do this, users use various characters to encrypt a hashtag or word that is prohibited by community rules (content is constantly checked, moderated, and deleted if necessary). Similar rules apply to the social network Instagram. Emoji can also be used to hide a specific word. A feature of the discourse on Instagram can be considered, what is called the content plan and strategy of communication with the audience (Shafigullina & Palyakin, 2016). In this way, users try to attract as many subscribers as possible, expand their influence to the largest possible audience, plus, if possible, commercialize their authority by turning the distribution of their content into financial assets (Ahmadinejad & Najafi Asli, 2017). For example, legal entities whose purpose is to make a profit, for obvious reasons, form their communication with customers accordingly. In this, they are also helped by the formation of an appropriate image, which serves as a link to their reputation and representation – positioning themselves in the digital environment and the market. The situation with individuals is similar, as it involves tools for successful communication, expanding the audience, forming an attractive image, etc. We can say that the struggle is for a modern digital currency – for

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influence on the Internet and for the attention of users. This shows the direction of the discourse in social networks.

How exactly does this work? Influencing factors and motivation The peculiarities of the formation of discourse on such platforms as Instagram and TikTok are the holding of challenges and flash mobs - types of a social activity integrated into the digital space, which under a specific slogan unites people to perform certain actions specifically for such actions. For example, #tenyearchallenge was popular on social media in January 2019, reaching 2.5 million mentions in one month (Mathew, 2021). In addition to ordinary people, celebrities took part in it, showing how they have changed in ten years. Prior to that, in August 2014, #icebucketchallenge helped attract a large number of people and public patrons such as Bill Gates to participate in a campaign to attract attention and donate to the research and treatment of amyotrophic lateral sclerosis (ALS) (Koohy & Koohy, 2014; Pressgrove, McKeever, & Jang, 2018). (Amyotrophic lateral sclerosis (ALS) is an idiopathic, fatal neurodegenerative disease of the human motor system (Kiernan et al., 2011).) As a result, five years later, the ALS Association reported a 187% increase in disease research spending (Frederick, 2019). It should be supplemented that the reasons for the virality (growing popularity) of a challenge are the desire of participants to be part of social interaction (participants in a communicative act, to be part of society, to socialize), receiving a positive emotional response, psychostimulative effect of social communication (excitement, fun), that the participants in the challenge are involved in an important event, and from the outside, there are many like-minded people, the same people as them (Mathew, 2021). Such challenges affect our group instinct, the desire to be seen and heard, to be part of a group, to be "our own". Thus, challenges in social networks promote the social integration of a large number of people, are part of social activity, and can be aimed at achieving specific goals, such as addressing the public eye on social issues or attracting donations to charity.

TikTok users, who surpassed Facebook in the number of downloads in 2020 (BBC News, 2021) and YouTube in the US on the Android platform by the number of hours of viewing (Porter, 2021), are most often the preservation of interesting content (archiving), the need for selfexpression, social interaction, and the desire to escape from reality (escapism) (Omar & Dequan, 2020). From this point of view, a mobile application is only a means of expressing

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yourself and your emotions, ideas, achieving goals and objectives. Accordingly, it depends on the formation of their discourse and building communication with other people. We can say that people go to social networks for the same purpose for which they enter into communicative interaction offline, just with the help of digital means to make it easier, more convenient, and faster, plus there is an opportunity to reach a large number of recipients.

The motivation for attracting users to YouTube video hosting, which is currently the main competitor to TikTok (Porter, 2021), is the entertaining, relaxing effect of video content (Khan, 2017). The number of likes or dislikes will depend on this. Video commentary correlated with the desire to express one's position, while video commentary and video distribution played an informative role. Over time, more experienced YouTube users become more demanding of the videos they like, and male users are more likely to put dislikes than women.

Use of hashtags. Hashtag activism – the power struggle?

The use of hashtags to convey information in a concise, concentrated form is a common practice of communication in the field of digital technologies, the Internet, in particular, social networks. Tags such as #MeToo, #TimesUp, #BlackLivesMatter have become part of the feminist movement and the fight against discrimination against social groups based on skin color, race, ethnicity, etc. (Jackson, Bailey, & Welles, 2020) These civic activism campaigns on and off the social network got their names from these hashtags. The above tags are most common in the United States, but social groups in other countries seek to achieve the same spread of information campaigns (for example, #JeNeSuisPasCharlie in France as a reaction to the attack on the satirical magazine Charlie Hebdo), so the use of hashtags to spread a clear message is optimal Internet communication strategy in all countries.

Hashtag activism occurs when many posts appear on a social network, combined in one expression or phrase, in the form of a hashtag that contains a social, political claim or criticism (Yang, 2016). Since the main thing is the rapid and comprehensive dissemination of propaganda information to protect other social groups, groups of individuals or individuals, the nature of such a phenomenon as hashtag activism is common to all countries, the only difference is access to

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communication technologies, their prevalence, hence the scale and consequences of information campaigns. To gain momentum, it is not enough for the hashtag to be accurate, clear, concise, and clearly convey information about the social demand or dissatisfaction and demands of the activist movement. First of all, this social request must exist objectively, plus, there must be an appropriate number of caring people who will decide not only to read the post under the hashtag but also to disseminate information. This ability is generated by the context, cultural background, and understanding of symbols, semantics of information (Campbell, 2005), which is formed in the appropriate reaction of the recipient. This can serve as a "green light" for the perception of political / social message, and interfere with its perception because in the mind of the recipient there are opposite social attitudes, values, and norms of behavior that can put him in opposition to the movement of civic activism, or lack of certain ideas and attitudes will lead to indifference in his perception. Therefore, the recipient of the discourse responds not so much to the message itself, the hashtag, but to the social conditions in which his worldview was formed.

From this point of view, the narratives used by hashtag activism are not independent of culture and context (van Dijk, 2009). They, like discourse, are speech, text immersed in context.

A fundamentally important question is how and why hashtag activism is accompanied by acts of civil disobedience. Do the personal factors, biology, and psychology of the people involved play a role in this? Are there social factors that affect the level of struggle of social groups, discrimination against each other? For example, Bonilla & Rosa (2015) point out that the appeal to activism on social networks is influenced by the distorted representation in the media of persons involved in acts of public disobedience.

They are supported by other researchers, who point out that the use of hashtags in the activist movement for minority rights, against racial, sexual, and other forms of discrimination, is not accidental (Berridge & Portwood-Stacer, 2015; Clark, 2016; Yang, 2016). Thus, they address the nature and origin of hashtag activism in favor of objectively existing social factors of discontent and anti-discrimination, without which the dissemination of campaign materials against them is unlikely, as they are doomed to drown in information noise without the necessary support.

The ability to present information in such a way as to form a special story in the mind of the reader, which should evoke an emotional response, is regarded as successful storytelling. It plays a role in whether the dissemination of the information campaign will play out and whether

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204 its citizens will support it. Thus, communication between the addressee and the recipients is formed utilizing digital communication, which is very similar in content to a communicative act aimed at extending power and authority to voters by persuading them through linguistic techniques, rhetoric that affects their emotional state and values. In this sense, the discourse analysis of hashtag activism suggests that this phenomenon is related to the notion of power, authority, and political struggle (van Dijk, 2008).

Digital communication practices. Their significance and role for discourse analysis Jones, Chik, & Hafner (2015) suggest naming human processes / activities on the Internet or using electronic means of communication, digital communication practices. In more detail, they characterize this as the use of digital technology to achieve socially primary goals, the actualization of social identities, and the reproduction of social relations. Semiotic and discourse meanings play a fundamental role in defining digital communication practices in contrast to the technological or softwarehardware content of the term (Kozhemyakin, 2016). The authors of the proposed term especially emphasize the practical aspect, essential for the researcher who conducts discourse analysis based on digital communicative practices. Accordingly, the challenge is to discover how to do this (Jones, Chik, & Hafner, 2015). To do this, they turn to the definition of conditions, means, effects of meaning-making, in particular, in the computermediated and digital environment (Kozhemyakin, 2016). Discourse in this sense refers to how semiotic systems affect the construction and management of social reality (Jones, Chik, & Hafner, 2015). The way to study discourse here is a critical analysis of texts and contexts, the interaction of concepts of power and ideology (Fairclough, 2013).

Thus, discourse analysis applies to the study of the transition from one sign system to another and the application of contexts in new conditions ("contextual reframing") (Kozhemyakin, 2016).

The so-called "knowledge construction", when hashtag activity forms a new phenomenon in social communication, can also be studied through discourse analysis. Additionally, intertextual and interdiscursive connections can be explored in terms of discourse analysis to study the social background behind the formation of digital communication. From a practical point of view, the use of the results of discourse analysis of digital communication should

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promote the development of critical thinking, such as children and adolescents, finding the meaning of power discourse, the formation of critical media literacy (Jones, Chik, & Hafner, 2015). This is important for forming an appropriate culture of critical thinking and contributing to the goals of sustainable development and the development of a democratic formation oriented towards democratic values (van Dijk, 1995). Such a model potentially changes the role of studying the linguistic methods of discourse, which can be studied in the education system, causing new perspectives in this direction (Kozhemyakin, 2016). According to Jones, Chik, & Hafner (2015), discourse analysis helps to clarify the mechanisms of semiotic construction of identities and social division of the world by participants in educational communication in the digital age. At the same time, they note that the tools of discourse analysis are largely inferior to the pace of development of digital communication technologies, so the adaptation of the theoretical basis may not keep up with innovation and take some time to adapt their optics to new changes.

Conclusions The digital world is evolving rapidly. To ensure adequate consideration of linguistic techniques, the meanings of speech used in the network, discourse analysis tools can be used. With their help, it is possible to establish that digital platforms, website platforms are only the territory of expression of ideas, emotions, tasks, and goals that are inherent in people and live communication. From this point of view, the hardware and technical content of discourse on the Internet is not so much interested in discourse analysis as to how it affects the construction of social reality, i.e., the extralinguistic aspect of discourse formation in digital communication.

Features of the discourse of digital communications are communication in social networks, the use of hashtag activism, the formation of online identity (representation) using discourse tools, factors influencing activity (involvement) in social networks (communication motivation), social integration (activity) through challenges, etc. Thus, digital communication is a promising and multifaceted area for further research, which, in our opinion, should focus on the latest trends in online communication and analysis of certain features of discourse on the Internet, the relationship of digital communication discourse, digital communication practices, and concepts of power,

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dominance, social justice, anti-discrimination, and inequality.

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DOI: https://doi.org/10.34069/AI/2021.44.08.20 How to Cite: Boychuk, Y., Kazachiner, O., & Khliebnikova, T. (2021). Managing teacher’s inclusive culture development. Amazonia Investiga, 10(44), 207-219. https://doi.org/10.34069/AI/2021.44.08.20

Managing teacher’s inclusive culture development Управління розвитком інклюзивної культури вчителів Received: June 2, 2021

Accepted: July 31, 2021

Written by: Yuriy Boychuk79 https://orcid.org/0000-0001-8583-5856 Olena Kazachiner80 https://orcid.org/0000-0003-4842-3857 Talina Khliebnikova81 https://orcid.org/0000-0002-7571-2200 Abstract

Анотація

The article is devoted to the phenomena of teacher’s inclusive culture, its development and managing this process. In philosophical, psychological and pedagogical literature the teacher’s inclusive culture is considered as a part of general educational culture and is characterized by broad understanding of philosophical and methodological foundations of inclusion, teacher’s deep acceptance and desire to implement inclusive values, creative approach to professional activities and professional selfimprovement at a personal level. The purpose of the study was theoretically substantiate a tool that will diagnose the level of teacher’s inclusive culture, help to identify problems of teacher’s inclusive culture development and to work out technology to manage this process. The development of inclusive culture includes the following aspects: 1) school culture; 2) relationships with families; 3) staff training and support; 4) gaining access to specialized support services; 5) students’ support and involvement. The algorithm of activity on technology of managing teacher’s inclusive culture development is presented. Results. Since, in practice of managing a general secondary education institution, there is no tool for measuring and assessing the level of teacher’s inclusive culture development, we have made an attempt to work it out. The international

Стаття присвячена явищам інклюзивної культури вчителя, її розвитку та управлінню цим процесом. У філософській, психологічній та педагогічній літературі інклюзивна культура вчителя розглядається як частина загальноосвітньої культури і характеризується широким розумінням філософських та методологічних основ інклюзії, глибоким сприйняттям та прагненням учителя до впровадження інклюзивних цінностей, творчим підходом до професійної діяльності, професійного самовдосконалення на особистому рівні. Метою дослідження було теоретично обґрунтувати інструмент, який дозволить діагностувати рівень інклюзивної культури вчителя, допомогти виявити проблеми розвитку інклюзивної культури вчителя та опрацювати технологію управління цим процесом. Розвиток інклюзивної культури включає такі аспекти: 1) шкільна культура; 2) відносини з сім’ями; 3) навчання та підтримка персоналу; 4) отримання доступу до спеціалізованих служб підтримки; 5) підтримка та залучення учнів. Представлено алгоритм діяльності за технологією управління розвитком інклюзивної культури вчителя. Результати. Оскільки на практиці управління закладом загальної середньої освіти не існує інструменту для вимірювання та оцінки рівня розвитку інклюзивної культури вчителя, ми

79

Doctor of Pedagogy, Professor, Professor of Human Health, Rehabilitology and Special Psychology Department, Rector of H.S. Skovoroda Kharkiv National Pedagogical University, Kharkiv, Ukraine.

80 Doctor of Pedagogy, Associate Professor of Human Health, Rehabilitology and Special Psychology Department, H.S. Skovoroda Kharkiv National Pedagogical University, Kharkiv, Ukraine.

81 PhD of Pedagogy, Docent, Associate Professor of Scientific Basis of Management Department, H.S. Skovoroda Kharkiv National Pedagogical University, Kharkiv, Ukraine.

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significance and importance of our article is that criteria for assessing the level of teacher’s inclusive culture development were clarified and defined. Based on qualimetric approach a factorcriterion model for diagnosing the level of teacher’s inclusive culture and help the head of educational institution to identify problems and work out technology of managing teacher’s inclusive culture development was presented.

Keywords: inclusive culture, teacher, qualimetry, development, assessment, level, factor-criterion model.

зробили спробу це розробити. Міжнародне значення та важливість нашої статті полягає в тому, що були уточнені та визначені критерії оцінки рівня розвитку інклюзивної культури вчителя. На основі кваліметричного підходу була представлена факторно-критеріальна модель діагностики рівня інклюзивної культури вчителя та допомоги керівнику навчального закладу у виявленні проблем та напрацюванні технології управління розвитком інклюзивної культури вчителя. Ключові слова: інклюзивна культура, вчитель, кваліметрія, розвиток, оцінка, рівень, факторно-критеріальна модель.

Introduction The modern system of developed democratic community’s education is designed to meet the individual educational needs of the individual, including: the need for full and diverse personal development and development – taking into account individual skills, interests, motives and abilities (personal success); the need for an individual’s organic entry into the social environment and fruitful participation in society life (social success); the need for a person’s universal work and practical skills’ development, readiness to choose a profession (professional success) by students. However, there are groups of children whose educational needs are not only individual, but also have special features.

Of course, the position of the teacher plays a key role in inclusive education. The psychological climate in the children’s team, the ability to work with each child and build relationships in a team depends on his competence and level of inclusive thinking development. A lot in accepting «special» children by «typical» ones will depend on the teachers’ position. It is very important if the teacher perceives and objectively assesses the development potential of any student. When introducing inclusive education in an educational institution, it is worth considering whether teachers, students and their parents are ready to accept a special child in the classroom.

Therefore, along with solving management problems, special attention should be paid to the problem of teachers’ inclusive culture developing in the educational institution.

Educators who work with children with disabilities must have a high level of regulation of their activities, control themselves in stressful situations, respond quickly and confidently to changing circumstances and make decisions.

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This kind of school culture creates shared, inclusive values that are shared and accepted by all new staff, students, staff and parents / carers.

In an inclusive culture, these principles and values influence both decisions about all school policies and the day-to-day practice of every class. At the same time, the development of the school becomes a constant and continuous process, especially in inclusive conditions, which became a world tendency nowadays.

To solve the problem of inclusive culture requires the introduction of a technological chain: the acquisition of knowledge about inclusive culture – the formation of values – the acquisition of experience of joint activities – a positive attitude to the existing reality.

The development of an educational institution’s inclusive culture depends on the school principal, teaching staff and staff in general.

In our opinion, managing the teacher’s inclusive culture development should be carried out on the basis of diagnostic and technological approach.

Diagnosis allows to identify problems and complications and to work out the technology to overcome them. At the same time, the analysis of scientific research shows that, unfortunately, there is no tool for assessing and measuring the level of teacher’s inclusive culture development.

In our opinion, one of these diagnostic tools can be a factor-criterion model for assessing the level of teacher’s inclusive culture development. This fact emphasizes the international significance and importance of our research.

This study aims to work out a tool (factorcriterion model for assessing the level of teacher’s inclusive culture development), which

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will diagnose the level of teacher’s inclusive culture development, will help the educational institution principal to identify problems and work out technology of managing teachers’ inclusive teacher culture development.

In accordance with the goal we have identified the following objectives of the study: 1) Based on the relation with the scientific literature in the field of the paper to analyze the phenomenon of inclusive culture and teacher’s inclusive culture; 2) To identify the algorithm of managing teacher’s inclusive culture development; 3) To work out the factor-criterion model for assessing managing teacher’s inclusive culture development.

The investigation of the attitudes of teachers upon the integration process of students with special educational needs by Mâţă (Mâţă, 2020) helps identify the best means of influencing, with the purpose to form relations based on mutual evaluation and to promote equity of participation chances.

A theoretical analysis of philosophical, psychological and pedagogical literature allowed us to highlight several authors’ approaches to the definition of the teacher’s inclusive culture phenomenon.

Polyansky et al. (Polyansky, 2018) consider the inclusive culture within the education system as a special philosophy, when the values of inclusion are accepted and shared by all participants in the educational space.

Methodology The following theoretical methods were used in the study: 1) retrospective analysis of the literature on the teacher’s inclusive culture development; 2) methods of systematization, analysis, synthesis, generalization at the stage of identifying problems of teacher’s inclusive culture development – to justify the need to implement teacher’s inclusive culture development in education, clarify its essence, content, identify its components necessary for the development and managing these phenomena, detection grounds that could help in the stated process, explanation, classification; 3) methods of ranking, scaling – to construct a factor-criterion model for assessing managing teacher’s inclusive culture development.

According to Baglama et al. (Baglama, 2019), teacher training programs should focus more on teaching individuals with special needs in order to promote knowledge, skills and attitudes of teachers. Elective courses may include courses to enable increased awareness on individuals with special needs. Within the scope of teaching practice course, preservice teachers may be asked to participate in observing and implementing practices of inclusive education.

Khitryuk (Khitryuk, 2011).considers inclusive readiness as the first stage in the formation of teacher’s inclusive culture and defines the latter as a complex personal feature that contributes to the formation and design of values and technologies of inclusive education, consolidates and combines the knowledge system of skills, social, personal and professional competencies which let the teacher to work effectively in inclusive conditions, to determine the optimal conditions for every learner’s development.

Theoretical background Managing teacher’s inclusive development in educational practice

culture

Today, the problem of developing teacher’s inclusive culture is very relevant and, due to its importance and complexity, requires deep scientific study. The psychological climate in the children’s team, the ability to work with each child and to build relationships in a team correctly depends on the teacher’s competence and the level of inclusive thinking development.

It is very important if we are talking about inclusive education so that the teacher could psychologically accept and objectively assess the development potential of any student.

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The scientist identifies a set of pedagogical conditions that contribute to forming teachers’ inclusive culture: 1) the organization of educational process, during which the inclusive culture of the teacher is formed, based on a competency-based approach; 2) the construction of a didactic model for teacher’s inclusive culture forming; 3) the creation and implementation of a program for forming teachers’ inclusive culture.

The essence of «teacher’s inclusive culture» definition Janusova (Janusova, 2018) explains through the characterization of a number of structurally-meaningful components: axiological (value system, guided by which the teacher seeks to implement inclusive education), personality-

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210 communicative (the level of inclusive education teacher’s personality development, it is manifested in his conscious acceptance ideas of inclusive education, in formation of his professionally significant qualities (love of children, tolerance, empathy), communicative and organizational abilities), cognitive (the presence of deep, comprehensive knowledge and skills that form the basis of the teacher’s professional activity and ensure the successful implementation of inclusive education practices).

We determine the structure of the teacher’s inclusive culture through the interconnectedness and interdependence of its following components: personality-communicative, axiological and cognitive ones.

We characterize the personal-communicative component of the teacher’s inclusive culture by a certain level of personality development of inclusive education teacher, manifested in his conscious acceptance of the idea of inclusive education, in the formation of professionally significant qualities (tolerance, empathy).

The axiological component, in our opinion, is a key component of the teacher’s inclusive culture and reflects the value system, guided by which the teacher seeks to implement inclusive education.

The cognitive component is a system of knowledge and skills of inclusive education teacher, which form the basis of his professional activity, as well as certain properties of cognitive activity that affect its effectiveness.

Boghian (Boghian, 2019) presents an educational intervention program focused on empowering teachers to deal with classroom diversity and results obtained following its implementation at undergraduate students preparing for a teaching career. The findings show that the educational intervention program enhanced the trainees’ knowledge, skills and attitudes in terms of their ability to approach classroom diversity and risks of conflicts based on discrimination and differences in the class of students successfully.

What requirements can be presented to the teacher of inclusive education? The list may be long enough, but the main criteria will be (Poleshchuk, 2016): 1. Willingness to interact with other specialists in the framework of psychological, medical and pedagogical consultation. Ability to read documentation of specialists (psychologists, defectologists, speech

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therapists, etc.). The ability to make up a program of the child’s individual development together with other specialists. 2. Possession of special techniques that allow for corrective development work. Ability to track the dynamics of the child’s development. 3. The ability to protect those who are not accepted in the children’s team. 4. The ability (together with a psychologist and other specialists) to carry out the psychological and pedagogical support of educational programs. 5.

Possession of simple psychodiagnostics methods of personality and age characteristics of students, implementation, together with a psychologist, of monitoring the child’s personality characteristics. The ability (together with a psychologist and other specialists) to draw up a psychological and pedagogical description (portrait) of a student’s personality.

Kozma et al. (Kozma, 2002) point out other characteristics out to develop successful «inclusive practices»: involve learners in collaborative activities, project-based learning, and real-life problem solving; cultivate technological skills that allow children find, plan, and analyze information, communicate and express their thoughts in a great number of media forms; ensure learners with individualized instruction, modified to see the needs of students with different preparation, or conceptual difficulties; turn propositions and challenges for equity with students of different genders or social or ethnic groups and/or evaluate specification or information for learners who would not have access differently because of different reasons; «remove the barriers» of the classroom, for example, by broadening the school day, transforming and modifying the organization of the class, or involving other people (such as parents, scientists, or business professionals) in the educational process.

Thus, in our article we consider the teacher’s inclusive culture as part of a general educational culture and characterize a broad understanding of the philosophical and methodological foundations of inclusion, a deep acceptance and desire of a teacher at a personal level to implement inclusive values, a creative approach to professional activity and professional selfimprovement.

We agree with the position that the teachers have many challenges when teaching children with special educational needs in their classrooms. It is assumed that school teachers are the decisive agents in this process of inclusion. Their attitudes toward the inclusion of children with disabilities in regular classrooms are especially important for

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the inclusionary efforts’ success. Teacher selfefficacy has also a significant role when addressing various learners. In the study, Frumos (Frumos, 2018) considers the relationship between teacher’s self-efficacy and his attitudes toward the inclusive education.

Besides, during the process of inclusive culture development some serious problems can appear.

They can be the following (Poleshchuk, 2016): 





Children with disabilities, especially students at school, get used to attention, therefore, they can begin to abuse their special status and allow lower requirements for themselves.

Many parents may find themselves with a high level of claims – demanding the best teachers, speech therapists, corrective teachers, and other specialists for their «special» child.

Children with disabilities and their parents are very vulnerable; many do not want to talk about their problems and difficulties.

Most parents themselves suffer from severe mental and somatic disorders. It will be difficult to build good trusting relationships with many of them, both for representatives of the school staff and school teachers, class teachers, and specialists.

To sum up, we can say that developing an inclusive culture includes the following aspects: 1) School culture, which means: forming the approach to inclusion through a special view in schools that honours diversity in all school life sides; involving and supporting children with special needs into the school life; educating learners in the classrooms about disability and the rights of disabled children in an informed and sensitive teaching style; making school environment that supports the safeness, inclusion and well-being of children with SEN both in the classroom and out-of-class; supporting positive peer relationships and make learners familiar with being inclusive.

2) Relationships with families, which includes: getting and analyzing the information about strengths, weaknesses, abilities and wishes of children with SEN and help them in making solutions about their learning in particular and their education in general; working in collaboration with disabled children and their families to create positive educational environment and to make their learning goals accessible; cooperating with learners and their family members using Individual Learning Plans

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to adapt and to modify their educational trajectory.

3) Staff training and support: training all staff members about their responsibilities and duties mentioned in the Inclusion Standards for Education to provide equal rights to education for children with SEN; allocation a highly qualified Leading teacher (or coordinator, tutor) to the complete inclusion of children with disabilities and the teachers’ ongoing professional training; taking into consideration fact-based strategies in the process of educating learners with SEN; providing strength- and evidence-based techniques, instruments, recourses, methods and principles used in pedagogy and special pedagogy to make the curriculum individualized and differentiated for teaching children with SEN; providing peer support and collaboration among the staff to further teacher competence to educate students with disabilities; cooperation with other schools to develop professional knowledge, abilities and skills based on inclusion; taking into consideration and manage risks connected with mental health in the workplace, and create a take-charge work environment that supports positive wellbeing in staff and learners.

4) Access specialized support services (Student support services), which means: involving support services who can ensure different kinds of health specialists like psychologists and speech therapists to support student teaching and learning; involving the visiting teacher service through guiding students who would make specialist support useful in the classroom.

5) Student support and engagement, which includes: providing a learner responsibility policy that actively works to support children through learning basic abilities and skills to potentate appropriate behaviour, and through addressing structures promoting to the behaviour around the child; appreciating child well-being and self-regulation (Busher, 2005).

Algorithm of managing teacher’s inclusive culture development in institutions of secondary general education Implementation of management teacher’s inclusive culture development at the school level requires «transparency». We believe that the classic structure of the management model for the teachers’ inclusive culture development should consist of:  

situation analysis («What do we have?»); determining the image of the desired result («What do we want?»);

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212  



determining the tactics of achieving the goal («What needs to be done?»); step-by-step tracking of the process of teacher’s inclusive culture development, obtaining feedback information, its analysis («What do we do?»); correction of activity.

Management activities for managing teacher’s inclusive culture development can be represented by us according to the following algorithm (cycle): 





in-depth study of the theory and technology of inclusive education by the school administration. After all, the school administration directs the activities of the whole team, takes responsibility for the process and result of the introduction of new technology, covering all parts of the school.

From the detailed development of the theory and technology of the new system depends on the management decision, and control over its implementation, and providing conditions for the implementation of this system, etc.; in-depth analysis of the system of teaching and education, the system of methodical work and other systems of teaching that exist in the school (diagnosis). The system of education and upbringing that existed before the introduction of the new system (development of inclusive culture) is the «foundation» on which the new system (technology) should be based. This «foundation» may be more or less suitable for the new system (technology). Thanks to the analysis, it is possible to select the positive that was inherent in the previous system, to transfer it to the new system, as well as to eliminate the negative; making a management decision to implement the teacher’s inclusive culture development.

This means making a balanced, reasonable, final decision on the introduction of new technology by the school administration: after all, the administration is responsible for both the implementation of the decision and for the consequences of implementing a certain system (technology);  

creation of an algorithm for the teachers’ inclusive culture development in a particular school; acquaintance of school teachers with the purpose, essence, tasks of inclusive education. To fulfil this point, it is necessary

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





 

to set out the main ideas and provisions of the theory of inclusive education, to highlight the prospects of this system of education, i.e. it is necessary to create advertising for it; making a collective decision on the introduction of inclusive education. It is a decision to implement a new system at a meeting of the Pedagogical Council (School Board, which includes teachers, parents and students); planning of school work on introduction of new system (technology), planning of work on each separate subsystem of school: planning of methodical, educational work, etc. As well as drawing up a separate implementation plan, which covers the activities of the entire school staff and individual employees at each stage of implementation (from preparatory to generalizing); actions of the school administration to implement the teachers’ inclusive culture development are reflected in orders, instructions, etc.; acquaintance of teachers with scientific and methodical literature and materials of the pedagogical press on this issue; organization of methodical work of the school, which provides:

a)

creation of a creative group on the problem of studying and introduction of inclusive education; b) organization of a psychological and pedagogical seminar, at the meetings of which theoretical, methodological and technological issues of this system of education will be considered: the use of psychodiagnostics in the system of school differentiation; taking into account the results of psychodiagnostics for the further development of mental abilities of students, in particular with special educational needs, psychocorrection and psychorehabilitation; observation of the dynamics of development, socialization of students, whose education is carried out in accordance with the conceptual provisions and values of inclusive education; c) mastering the conceptual apparatus of inclusive education theory; d) organization of activities of dynamic groups that will work on adaptation of problembased programs, subject courses, elective classes to the new technology, will prepare conferences, pedagogical councils, round tables, etc.; e) organization of current methodical

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meetings, workshops, etc.; organization of mentoring work with young teachers; g) organization of thematic retraining of personnel at special courses at the institutions of postgraduate education; h) participation of the administration and individual teachers in the workshops; i) exchange of experience between the teams of a particular school and schools that use system of inclusive education; f)

 

implementation of organizational work; organization of the psychological service of the school.

Results and discussion The correlation between quality and the complex and simple properties that define it can be represented in the form of a hierarchical structure, at the lowest level of which are simple properties. Parameters, factors, criteria were determined for qualimetric assessment of the level of teachers’ inclusive culture development.

Components of teachers’ inclusive culture (personal-communicative; axiological; cognitive ones) were identified as parameters.

Each parameter was characterized by certain factors as components of the selected parameter.

The factor is revealed through criteria (indicators).

This made it possible to combine these parameters, factors, criteria into a qualimetric model. For example, we consider in detail which factors describe the first parameter and what criteria describe each factor (table 4).

For example, the personal-communicative parameter includes the following factors: focus on the child’s personality, didactic-psychological support of the educational process of children with disabilities, organization of communications in the system «teacherstudent», «student-student» of children with special educational needs.

Criteria for the level of personality-oriented approach implementation to children with SEN (factor – focus on the child’s personality) were determined as: didactic design of students taking into account the child’s personality, providing handouts and instructional materials depending on the needs of students with disabilities, implementation of pedagogically appropriate learning tools, taking into account the lesson’s

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purpose and objectives, the content of the topic, the students’ individual characteristics.

Criteria for the implementation of the 2 nd factor (didactic and psychological support of the educational process of children with SEN) were determined as: knowledge of psychological barriers and their consideration in the process of organizing education of children with disabilities, creating conditions for students with disabilities’ socialization and integration into the life of society, motivation to learn, stimulating the development of students with disabilities, encouraging student initiative, creating conditions for emotional openness, trust, creating conditions for reflection on the process and result of educational activities, its productivity.

Criteria of the 3rd factor (organization of communications in the system «teacherstudent», «student-student» of children with disabilities) are manifested when the teacher creates an environment for cooperation, responds quickly to emerging barriers and overcoming them through cooperation and equal partnership, develops a system of educational activities with students, uses reactions, students’ questions when teaching the content of the material, etc.

The calculation of the coefficients of the relevant factors’ significance was performed expertly by the mathematical ranking method.

In the qualimetric model, each component has a weight within 1, i.e. in its shares, the average expert assessment of the level of their implementation was also established and calculated in the shares of 1.

Comprehensive quantitative assessment of qualities was presented as a function of relative indicators, weighting factors and levels of implementation.

Practical use of the model involves the calculation of quantitative indicators of certain parameters, factors, criteria.

Individual properties, both complex and simple, can be measured by property-specific units. As a result of measurements values of absolute indicators of properties Рі,, and = 1,2,…, n are defined. In our model, scores from each criterion were used as absolute indicators. Absolute indicators are determined using methods of metrology, methods of experimental psychology, methods for determining efficiency, etc. In our model, we determined the indicators by the method of expert assessments. In addition to the absolute value of Рі,, each simple or complex property can be characterized by the relative value of Кі,

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214 which is determined by comparing the absolute value with the reference (Ріet), its value is chosen not arbitrarily, but taking into account the needs of society. In the presented model, the criteria were obtained by bringing all scores to the standard. Along with the absolute value (Рі,) and the relative value (Кі), each property (factor or criterion) is characterized by a certain weight among other properties – the weighting factor of the property Мі. In the qualimetric model of assessing the level of inclusive teacher culture, each component (factor and criteria) has a weight within the unit, ie in its shares, which was determined using the ranking method. Ranking was performed by the method of scoring, assessing the importance of each factor. Then we calculated the arithmetic mean of the scores.

The evaluation was carried out by an expert group of 9 people, which consisted of school principals and employees of the Department of Education, who have already obtained and are obtaining a master’s degree in school management.

Here is an example of calculating the weight of the parameters (see Table 1) and criteria (see Tables 1-3) of the qualimetric model.

Experts were asked to rate the parameters (from the most significant (3 points) to the least significant (1 point)) that affect the overall assessment of teacher’s inclusive culture.

As can be seen from Table 1, according to the first parameter, 3 points were given by 3 experts, 2 points – by 5 experts, 1 point – by 1 expert.

Table 1.

Calculation of the qualimetric model’s parameters.

№

Parameters

1.

2.

3. ∑

Personality-communicative Axiological Cognitive

Number of experts who gave points 3 2 1 3 5 1 2 4 3 4 0 5

∑P

M

20 17 17 54

0,37 0,315 0,315 1,00

We calculate the amount for each parameter:

parameters:

∑ P1 = 3×3+2×5+1×1=20; ∑ P2 = 3×2+2×4+3×1=17; ∑ P3 = 3×4+2×0+5×1=17;

M1= 20/54=0,37; M2= 17/54=0,315; M3= 17/54=0,315; M∑= M1+ M2+ V3= 0,37+0,315+0,315=1,00 M∑=1,00.

We calculate the amount of all parameters: ∑і = 20+17+17=54.

We calculate the weight of factors for each parameter separately.

We determine the weight of each of the Table 2.

Parameter 1. Personality-communicative component. №

Factors

1.

Focus on the child’s personality Didactic and psychological support of the educational process of children with SEN Organization of communications in the system «teacherstudent», «student-student» of children with SEN

2.

3.

Points 3 5

2 1

1 3

3

3

1

5

∑ We calculate the amount for each factor:

∑ F2 = 3×3+2×3+1×3=18; ∑ F3 = 3×1×2×5+1×3=16;

∑ F1 =3×5+2×1+1×3=20

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∑P

m

20

0,37

3

18

0,33

3

16

0,30

54

1,00

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We calculate the amount of all factors: ∑ =54.

For the second and third parameters, the weight of the factors is calculated in the same way.

We determine the weight of each of the factor: The calculation of the coefficient of weight of the criteria is given on the example of the factor «Didactic and psychological support of the educational process of children with SEN».

m 1=20/54=0,37; m 2= 18/54=0,33; m 3= 16/54=0,30; m∑= 1.

Table 3.

Factor 2. Didactic and psychological support of the educational process of children with SEN. № 1.

2.

3.

4.

5.

Criteria Study of psychological barriers and their consideration in the process of organizing the education of children with disabilities Creating conditions for socialization and integration of students with disabilities into the normal life of society Motivation for learning, stimulating the development of students with disabilities Encouraging students’ initiative, creating conditions for emotional openness, trust Creating conditions for reflection on the process and result of educational activities, its productivity

Points 5 4

3

2

1

2

2

3

1

1

3

2

1

1

1 4

∑P

v

1

30

0,22

2

1

28

0,21

1

3

3

21

0,15

2

2

2

2

25

0,18

1

1

1

2

31

0,23

135

1

∑ Using table 3, we calculate the amount of points for each criterion: ∑ C1 = 5×2+4×2+3×3+2×1+1×1=30; ∑ C2 = 5×1+4×3+3×2+2×2+1×1=28; ∑ C3 = 5×1+4×1+3×1+2×3+1×3=21; ∑ C4 = 5×1+4×2+3×2+2×2+1×2=25; ∑ C5 = 5×4+4×1+3×1+2×1+1×2=31.

We calculate the amount of all criteria: ∑ =135.

We determine the weight of each of the criterion: v C1=30/135=0,22; v C2= 28/135=0,21; v C3= 21/135=0,16; v C4= 25/135=0,18; v C5= 31/135=0,23; v∑= 1.

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Factor-criterion modeling makes it possible to successfully solve both partial and strategic problems of measuring the level of quality compared to the ideal standard. Using this method, we obtained tools for measuring the level of quality. The evaluation will be carried out by experts independently of each other with the help of evaluation sheets using the scoring system in accordance with the following indicators: 1 – the activity is manifested constantly, to the highest degree; 0.75 – activity is manifested constantly; 0.5 – periodic activity; 0.25 – activity is almost not manifested; 0 – activity is not manifested.

Thus, factor-criterion model of assessing the level of teacher’s inclusive culture development is presented in table 4.

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215

216

1. Focus on the child's personality F1=m1(v1k1+v2k 2+v3k3)

1.Perso nalitycommu nicativ e Р1=М1( F1+F2+ F3)

m1 = 0,37

М1=0,3 7

2. Didactic and psychological support of the educational process of children with SEN F2=m2(v4k4+v5k 5+v6k6+v7k7+ +v8k8)

m2 =0,33

Criteria (K) 1. Didactic design of students’ education (optimality of determining the lesson’s aim; specification of learning objectives; specification of educational content; planning of methods, tools, forms of education) taking into account the personality of a child with disabilities 2. Providing handouts and instructional materials depending on the needs of students with disabilities.

3. Implementation of a pedagogically appropriate set of teaching aids, taking into account the purpose and objectives of the lesson, the content of the topic, the individual characteristics of students with disabilities 4. Study of psychological barriers and their consideration in the process of organizing the education of children with disabilities 5. Creating conditions for socialization and integration of students with disabilities in the normal life of society 6. Motivation to study, stimulating the students with disabilities’ development 7. Encouraging students' initiative, creating conditions for emotional openness, trust 8. Creating conditions for reflection on the process and result of educational activities, its productivity

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weight of criteria (v)

Factors (F)

weight of factors (m)

Parame ters (P)

weight of parameters (М)

Table 4.

Factor-criterion model of assessing the level of teacher’s inclusive culture development.

Coefficient of conformity

v1= 0,33

k1

v2=0,3 1

k2

v3=0,3 6

k3

v4=0,2 2

k4

v5=0,2 1

k5

v6=0,1 6

k6

v7=0,1 8

k7

v8=0,2 3

k8

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3. Organization of communication s in the system «teacherstudent», «studentstudent» of children with SEN F3=m3(v9k9+v10 k10+v11k11)

4. Value orientations F4=m4(v12k12+v 13k13)

2.

Axiolo gical Р2=М2( F4+F5+ F6)

M2=0,3 15

5. Value relations F5=m5(v14k14+v 15k15)

6. Valueoriented activity F6=m6(v16k16+v 17k17+v18k18)

3.Cogn itive Р3=М3( F7+F8+ F9)

M3=0,3 15

7.

Methodological knowledge F7=m7(v19k19+v 20k20+v21k21)

8.Pedagogical knowledge F8=m8(v22k22+v

m3 =0,30

m4 =0,32

m5=0,34

m6 =0,34

m7=0,33

m8 =0,33

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9. Creates an environment for cooperation, responds quickly to emerging barriers and overcomes them through cooperation and equal partnership.

10. Works out a system of educational activities between teacher and students 11. Uses reactions, questions from students when teaching the content of the material 12. Defines goals, means, activities and translates them into an ethical plan.

13. Defines spiritual values as the inner potential of the individual in combination with social, cultural, personal values.

14. Forms the emergence of value relations between the subject and the need for it 15. Forms a positive value of the subject for a particular subject in terms of meeting needs.

16. Creates conditions for the establishment of a person with disabilities in society, the immediate social environment 17. Humanistic orientation of activity in the conditions of inclusion 18. Appreciates inclusive values, creates clear hopes and imitates desired behavior 19. Knowledge of the laws of development of the general philosophical plan.

20. Knowledge of methods of transmission of scientific information (language of science, structure of scientific knowledge, form of their fixation).

21. Knowledge of general research methods (experimental and psychological).

22. Knowledge of pedagogical theories of development and

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v9=0,3 4

k9

v10=0, 35

k10

v11=0, 31

k11

v12=0, 5

k12

v13=0, 5

k13

v14=0, 49

k14

v15=0, 51

k15

v16=0, 34

k16

v17=0, 36

k17

v18=0, 30

k18

v19=0, 33

k19

v20 =0,33

k20

v21 =0,34

k21

v22 =0,5

k22

217

218 23k23)

9.Psychological knowledge F9=m9(v24k24+v 25k25+v26k26)

socialization of the person with limited possibilities

m9 =0,34

23. Knowledge of patterns and principles of construction and functioning of the educational process in the conditions of inclusion 24. Knowledge of scientific theories of psychology (theory of personality, theory of motivation, theory of activity).

25. Knowledge of age features of the individual, 26. Knowledge of psychological characteristics of a person with disabilities

0-0,35 – invalid level; 0,35-0,6 – low level; 0,6-0,75 – average level; 0,75-0,9 – sufficient level; 0,9-1– high level.

Within the research, the authors implemented the qualimetric approach and find out a factorcriterion model based on the works of Grigorash (Gryhorash, 2018), Yel’nikova (Yel’nikova, 1999), Khliebnikova (Khliebnikova, 2019) and others. The method of factor-criterion modelling, adapted to our study, combines quantitative methods for assessing product quality, based on the basic principles of qualimetry (Dmitrenko, 1999). It was very effective for the given study.

The authors agree with position of Mokhnach et al. (Mokhnach, 2020) that inclusive culture does not appear spontaneously, but is the result of efforts to introduce certain values into the life of an educational institution. The creation of inclusive culture should contribute to the creation of a safe, tolerant community that shares the ideas of cooperation, equality, ownership, stimulating the development of all its participants; a community in which the value of everybody is the foundation of shared achievement.

The authors find a different correlation of the «inclusive culture» and «inclusive readiness» concepts by Emel’janova et al. (Emel’janova & Sinjavskaja, 2015). The authors consider inclusive culture as «the personal quality of a teacher integrating his own position in relation to inclusive education».

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v23 =0,5

k23

v24 =0,33

k24

v25 =0,33

k25

v26 =0,34

k26

The study during the analysis of the scientific literature explained the essence and content of the definitions «inclusive culture», «teacher’s inclusive culture», «teacher’s inclusive culture development». These phenomena have not been properly studied, so these underdeveloped aspects of the theory of education have been compensated. It was determined that the teacher’s inclusive culture is a part of the general education culture, which is characterized by a broad understanding of the philosophical and methodological foundations of inclusion, deep acceptance and desire of teachers on a personal level to implement inclusive values, creative approach to professional activity.

Managing teachers’ inclusive culture development should be seen as a process of creating conditions for the formation of competencies for interaction with children with special educational needs and with children of typical development, relevant to the teacher as a participant in the pedagogical process.

Conclusions Managing teachers’ inclusive culture development in a modern school is a purposeful preparatory work, which is the result of in-depth study and analysis of this technology by the administration and the teaching staff, constant monitoring of the teaching staff in general.

The international significance and importance of our research for management and educational practice is that we have worked out a tool for measuring and assessing the level of teachers’

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inclusive culture development in general secondary education. We offer a factor-criterion model to assess the level of level of teachers’ inclusive culture development based on a combination of parameters, factors and criteria.

Components of teacher’s inclusive culture were identified as parameters: personalcommunicative; axiological; cognitive ones. In the qualimetric model of assessing the level of level of teachers’ inclusive culture development, each component (factor and criteria) has a weight within 1, i.e. in its shares, which was determined using the ranking method.

The results of the study do not cover all aspects of the problem. Areas of further research are the issue of resource approach in managing the teachers’ inclusive culture development.

Bibliographic references Baglama, B., Yucesoy, Y., & Beyazit, F. (2019).

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DOI: https://doi.org/10.34069/AI/2021.44.08.21 How to Cite: Marycheva, O., Kucher, V., Kurylo, T., Demkiv, R., & Grabar, N. (2021). Peculiarities of using information technologies through the prism of the principles of civil proceedings. Amazonia Investiga, 10(44), 220-229. https://doi.org/10.34069/AI/2021.44.08.20

Peculiarities of using information technologies through the prism of the principles of civil proceedings Особливості використання інформаційних технологій через призму принципів цивільного судочинства Received: July 20, 2021

Accepted: September 10, 2021

Written by: Olena Marycheva82 https://orcid.org/0000-0002-7204-9925 Vitalii Kucher83 https://orcid.org/0000-0003-0877-5735 Tetyana Kurylo84 https://orcid.org/0000-0003-0039-5121 Roman Demkiv85 https://orcid.org/0000-0003-3867-7968 Nataliia Grabar86 https://orcid.org/0000-0001-5533-6765 Abstract

Анотація

The aim of the study is to reveal the features of the use of information technology in civil proceedings in terms of compliance with its basic principles, because the digitalization of judiciary through the implementation of modern IT technologies in Ukraine is one of the most effective ways to improve the level and quality of administration, of justice, fulfillment of its tasks. Fair, impartial and timely consideration and resolution of civil cases is impossible without adherence to its principles, which are key guidelines in the formation of procedural law.

The study was conducted using general and special methods of scientific knowledge: comparative, historical and legal, formal-logical, dialectical, system-structural.

After analyzing current and future legislation, doctrinal approaches, best practices of foreign countries, the authors revealed the benefits of implementing information technology in civil proceedings and their impact on the realization of such principles as: rule of law, equality of all

Метою дослідження є розкриття особливостей використання інформаційних технологій у цивільному судочинстві в розрізі дотримання основних його засад, адже цифровізація судової системи шляхом впровадження сучасних IT-технологій в Україні є одним з найбільш ефективних способів підвищення рівня та якості здійснення правосуддя, виконання його завдань. Справедливий, неупереджений та своєчасний розгляд і вирішення цивільних справ є неможливим без дотримання його принципів, які є ключовими орієнтирами у формуванні процесуального права. Дослідження проведено із використанням загальнонаукових та спеціальних методів наукового пізнання: порівняльного, історикоправового, формально-логічного, діалектичного, системно-структурного. Проаналізувавши чинне та перспективне законодавство, доктринальні підходи, передовий досвід зарубіжних країн, автори

82

Postgraduate student of the Civil Law Disciplines Department, Institute of Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

83 Candidate of Law, Associate Professor, Head of the Theory of Law, Constitutional and Private Law Department, Institute of Specialist Training for National Police Units, Lviv State University of Internal Affairs, Lviv, Ukraine.

84 Candidate of Law, Associate Professor, Professor of the Theory of Law, Constitutional and Private Law Department, Institute of Specialist Training for National Police Units, Lviv State University of Internal Affairs, Lviv, Ukraine.

85 Candidate of Law, Associate Professor, Associate Professor of the Theory of Law, Constitutional and Private Law Department, Institute of Specialist Training for National Police Units, Lviv State University of Internal Affairs, Lviv, Ukraine.

86 Candidate of Law, Associate Professor, Associate Professor of the Civil Law Disciplines Department, Institute of Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

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participants before the law and court, publicity and openness of the trial, reasonable time for consideration of the case by court, adversarial parties.

On the basis of the conducted research generalizations and conclusions regarding the state and prospects of application of information technologies in civil proceedings through a prism of its principles are made.

Keywords: electronic proceedings, civil proceedings, «Electronic court», information technologies, principles of civil proceedings.

розкрили переваги впровадження інформаційних технологій в цивільне судочинство та їх вплив на реалізацію таких принципів як: верховенство права, рівність усіх учасників судового процесу перед законом та судом, гласність і відкритість судового процесу, розумність строків розгляду справи судом, змагальність сторін. На основі проведеного дослідження зроблені узагальнення та висновки щодо стану та перспектив застосування інформаційних технологій у цивільному судочинстві через призму його принципів. Ключові слова: електронне судочинство, цивільний процес, «Електронний суд», інформаційні технології, принципи цивільного судочинства.

Introduction The current stage of human development is characterized by the rapid development of global information infrastructure. The development of information technology is one of the aspects of global transformation, including public authorities. The purpose of such transformations is to create a sole information space, which will be a set of databases and data banks, technologies for their maintenance and use, information and telecommunications systems and networks that will operate on the basis of common principles and general rules to ensure information interaction of organizations and individuals, as well as satisfaction of their information needs.

Taking into account the current information needs of society, it becomes clear that without the implementation of information technology and automation of certain processes in court, further development of the justice system is impossible.

«Electronic justice» provides the use of information and communication technologies in the process of realization of procedural law.

Novelties of the judiciary should be aimed at expanding the availability of justice, speeding up and optimizing the litigation, improving its quality and efficiency, achieving transparency and openness of the judicial system.

The obvious advantages of digitalization of justice are reduction of court costs of the parties to the case, avoidance of possible omissions of procedural deadlines, increase of convenience and speed of processing of submitted procedural documents, their registration, etc.

The implementation of information technology in the judiciary, in particular civil proceedings,

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will improve the quality of court work, speed up and facilitate the work of its employees, better ensure proper access to justice, help fulfill the tasks of civil proceedings, and adhere to its basic principles: equality of all participants in the trial before the law and the court, publicity and openness of the trial, its complete fixation by technical means, reasonable timeliness of court proceedings, adversarial proceedings, dispositiveness, etc.

Literature review The issue of implementation of information technologies in the proceedings, compliance with the basic principles of civil procedural law was paid attention by such scholars as Khanyk-Pospolitak R. (2017), Komarov V.V. (2012), Sakara N.Y. (2006), Samborska O. (2013), Uhrynovska О. (2017) Hyliaka O.S. (2020) and others. The study of the use of the latest advances in electronic technology in the context of electronic proceedings is devoted mainly to certain aspects of this issue.

Thus, R. Khanyk-Pospolitak (2017) argues that modern information technologies are rapidly penetrating various spheres of public relations.

Legal relations in the field of justice are no exception. Justice is the tool through which ensures the realization of one of the fundamental human rights - the right to a fair trial, which is enshrined in Art. 6 of the European Convention on Human Rights.

Quite the right approach has chosen Komarov V. V. (2012) which sets out the principles as basic provisions enshrined in

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222 international law and current legislation, on which procedural law and the practice of its application should be based. According to O. Samborska (2013), the main task of the «electronic court» is to improve the working conditions of court employees, as well as to ensure fast and convenient access to justice. An e-court is a court whose doors are open 24/7 and where there are no queues. This statement confirms the priority of the direction of improvement and widespread use of information technology, which will help in fulfilling the tasks assigned to civil proceedings.

Scientists V.V. Komarov and N.Y. Sakara (2007) identifies the following main components of the right to a fair trial: 1) unencumbered by legal and economic barriers access to justice; 2) due court procedure; 3) public trial; 4) consideration of the case by an independent and impartial court established by law; 5) a reasonable time for trial.

O. Uhrynovska (2017) argues that the advantages of electronic exchange of documents between the court and the participants in the trial is saving of cost and time. In addition to significantly reducing the time required to deliver a court summons, the implementation of electronic document management will save time spent by court employees on filling out summonses, packing letters, printing and sending procedural documents. The advantage of electronic exchange of documents is also the proper confirmation of the fact of receipt of a court summons or procedural document by a participant in the trial.

Also, we cannot disagree with some statements of O. S. Hyliaka (2020), who considers the transition to full paperless document management impossible, as it will actually deprive almost half of the population of access to justice, as according to various data only about 60% of population of our state have access to the Internet. Scientists are considering the option of imposing all measures to transform paper documents on the case in their electronic form to the court. However, the equipment that courts have today does not allow them to work with a significant amount of electronic cases.

From the above it can be seen that currently there is no comprehensive approach to the implementation of information technology in the court, which leads to incomplete solutions to the problem of such implementation.

Methodology In the process of research general scientific and special methods of scientific cognition will be used, in particular: comparative, historical and legal, formal-logical, dialectical, systemstructural, dogmatic, method of modeling. The historical and legal method will be used in the study of the stages of development of the use of electronic technologies in civil proceedings, as well as in determining the directions of development of legislation that defined the principles of e-justice in the national and international legal system; formal-logical method will contribute to the study of the legal nature of the use and implementation of information technology in civil proceedings; comparative method - in the study of foreign experience of litigation in electronic form. The use of the system-structural method provided an opportunity to unify and systematize empirical materials on the use and implementation of electronic technologies in civil proceedings. The modeling method allowed not only to identify problems in regulating the use of information technology in civil proceedings, but also to suggest optimal ways to solve them and prevent their occurrence in the future.

Results and discussion Consideration of the implementation of information technology in civil proceedings through its principles as a basic principle is essential, as the principles are the starting points enshrined in international law and current legislation, on which should be based procedural law and practice of its application (Komarov & Sakara, 2007).

One of the basic principles of constitutional state and the fundamental foundations of the functioning of modern democracies in the world is «the rule of law» principle, wich is foundation of another legal principle (Maikut, Andrusiv, Yurkevych, Dutko, & Zaiats, 2020).

Today in science there are different views on the provisions in which the content of the rule of law in procedural relations is realized.

The comprehensiveness of the rule of law is enshrined at the international and domestic levels.

The Declaration of the High-Level Meeting of General Assembly on the Rule of Law at the international and national levels states: «We recognize that the rule of law applies equally to

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all States and international organizations, including the United Nations and its main authorities, and that respect and encouragement for the rule of law and justice should guide all activities and ensure predictability and legitimacy of any action. We also recognize that all persons, institutions and authorities (both public and private), including the state itself, have a duty to obey fair, impartial and equality laws and have the right, without distinction, to equal protection of the law.” (United Nations, 2012).

According to the European Court of Human Rights, the rule of law is a concept that is an integral part of all articles of the Convention, and the Court uses not only the term «prééminence du droit» (rule of law) but also the term «etat de droit» (constitutional state in French) (Case of Stafford v. the United Kingdom, 2002)).

In the case law of the European Court of Human Rights, as summarized in a report drawn up during Sweden's chairmanship of the Committee of Ministers (CM (2008) 170), the concept of the rule of law is applied to a number of issues using a fairly formal approach, starting with the principle of legality, in the narrow sense, but with the development of various aspects of due court process (with due regard for procedural law) and legal certainty, as well as the separation of branches of power, including the judiciary, and equality before the law (Council of Europe 2008).

In Golder v. The United Kingdom (1975) ECHR (Reports of the European Court of Human Rights), the Court stated that «the rule of law is unlikely to be imagined in the absence of access to justice».

The International Commission of Jurists has long conducted systematic research on the rule of law and considers the very concept of the rule of law as a fundamental principle for protecting people from the arbitrariness of state power and as a way to protect human dignity. Similarly, the International Bar Association has adopted the rule of law as a key concept for all legal practitioners.

Article 3 of the Constitution of Ukraine states that human rights and freedoms and their guarantees determine the content and direction of state activity (The Constitution of Ukraine No 254k / 96, 1996).

The principle of the rule of law is enshrined not only in the Constitution of Ukraine, but also in

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the Law of Ukraine «On the Judiciary and the Status of Judges» and other acts of procedural legislation.

The principle of the rule of law is the basic provision on the basis of which the constitutional state is built and the judiciary is functioning (Law No 1402-VIII, 2016).

As a member of the Council of Europe, Ukraine has also recognized the principle of the rule of law, committing itself to ensuring the realization of human rights and fundamental freedoms by all persons under its jurisdiction (Statute of the Council of Europe, 1949).

Closely related to the rule of law is the principle of access to justice, which is the basis of a fair trial.

Access to justice for every citizen is a guarantee of citizens' trust in the court and the basis of the concept of a fair trial. The Judgment of the Constitutional Court of Ukraine of 12 April 2012 № 9-rp/2012 states that «No one may be restricted in the right of access to justice, which includes the possibility of a person to initiate a trial and participate directly in the trial, or deprived of such rights» (Decision № 9-рп/2012, 2012).

In addition, as examined above, the rulings of the European Court of Human Rights emphasize that one of the parts of the rule of law is the availability of laws that must be quite simple and clear, understandable and predictable, and that there is access to justice. Thus, the right to a fair trial is ensured by the availability of justice.

Every day, citizens are faced with the issue of filling documents in court, which includes the process of registration, printing of documents, certification of copies of evidence, registration of a cover letter or a proper list of attached documents, sending the letter by mail.

The same applies to acquaintance with the materials of the case, for this person must first write a request for acquaintance with the materials of the case, submit it, agree on a date of possible acquaintance, which may be different from the date of submission of the request. This issue is quite complicated if we assume that the case is pending in another city or region.

In our opinion, the approach to filling paper documents is outdated and requires significant time and resources.

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224 The use of information technologies in the part of filling, exchange of procedural documents, acquaintance with case materials can help to solve this problem.

We stand in solidarity with the approach expressed by O. Uhrynovska that the advantages of electronic exchange of documents between the court and the participants in the process are saving of cost and time. In addition to significantly reducing the time required to deliver a court summons, the implementation of electronic document management will save time spent by court staff on filling out summonses, packing letters, printing and sending procedural documents. The advantage of electronic exchange of documents is also the proper confirmation of the fact of receipt of a court summons or procedural document by a participant in the process (Uhrynovska, 2017).

Thus, the use of information technology in terms of filing, exchanging procedural documents, acquaintance with case materials will significantly reduce the spending of time and resources, while being able to ensure the right to a fair trial, which is ensured by access to justice, which is part of the rule of law.

At the same level as the rule of law and access to justice, the principle of equality before the law and the courts plays an important role.

According to Article 6 of the Civil Procedural Code of Ukraine, the court is obliged to respect the honor and dignity of all participants in the trial and administer justice on the basis of their equality before the law and the court, regardless of race, skin color, political, religious or other beliefs, sex, ethnicity and social origin, property status, place of residence, language and other characteristics (Law No 1618-IV, 2004).

The principle of equality also implies the need for equal access of all persons to the necessary databases and registers, for example legislation and case law. Access to legal information contributes to the implementation of the principle of publicity and openness of the trial, and is an important aspect of ensuring the transparency of justice.

Such legal information can be obtained through the use of search engines. These include: the official portal of the Verkhovna Rada of Ukraine, the League-Law database, the official web portal of the Judiciary of Ukraine, the Unified State Register of Court Decisions, within which the eCourt project operates, etc.

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Importantly, in 2011 the Consultative Council of European Judges (CCJE) was tasked with developing and adopting an Opinion on the dematerialization of court proceedings. In drafting this Opinion, the CCJE took into account relevant acts of the Council of Europe, in particular the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 1981 and the European Judicial System Report (European Edition, 2010) of the European Commission for the Efficiency of Justice (CEPEJ) (namely, Chapter 5.3 on information and communication technologies in courts). Other international documents were also taken into account, in particular the European Union Strategy for Justice and the European Union Data Protection Directive, Directive 95/46/EU of the European Parliament and of the Council on the protection of individuals with regard to the processing of data and the free circulation of such data.

According to the recommendations of the Committee of Experts on the automation of judicial procedures of the member states of the Council of Europe the implementation of information technology should be carried out at all stages of judicial proceedings, including online (Council of Europe, 2011).

In the context of the development of information technologies and their impact, the principle of equality before the law and the court implies the need to ensure equal access to e-justice for all parties, regardless of their location or residence, taking into account both rural and urban areas.

Otherwise, a certain inequality will be created which will only intensify, and from now on from the point of view of access to modern technologies.

It is important to note that the use of information technology in civil proceedings cannot be considered outside the context of justice openness and transparency of the judiciary in general.

Today, openness of justice is achieved through the use of such information technologies as: automated application distribution system, video conferencing system, audio recording system of court hearings, functioning of official court websites (through the website of the Judiciary of Ukraine), etc.

These factors allow to solve the problem of timely provision of a wide range of relevant information to an indefinite circle of persons who are interested in obtaining it.

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Some researchers note that openness almost completely nullifies any opportunities for misuse, because if all court decisions are freely available to the public, it is unlikely that anyone will dare to violate the unity of judicial practice (Chucha, 2014).

The implementation of information technology in the judicial process will more effectively build a system of organizational and legal relations within the system of courts of general jurisdiction, as well as in the relationship between the court and participants in the process, accelerate the circulation of court documents, increase the transparency of the judicial system.

In any case, information technology should be a tool or means to improve the administration of justice, facilitate users' access to the courts and improve the guarantees set out in Art. 6 of the European Convention on Human Rights: access to justice, impartiality, independence of the judge, fairness and reasonable time for consideration of the case (Council of Europe, 1950).

Today, the implementation and proper functioning of the e-justice system is a need of the modern information society, an everyday requirement that is now integral to such concepts as «fair», «effective», «accessible» justice.

However, the implementation of information technology in the courts should not harm the credibility of the judiciary. If the proceedings are perceived by users as a purely technical process without its real and fundamental function, the administration of justice can become fully automated without the involvement of the human factor. Judicial proceedings, first of all, must contain the human factor, because this is about real people and the resolution of their disputes.

The most important value of human factor is in assessing the behavior of the parties and their witnesses in court, which is part of the work of a judge (Council of Europe, 2011).

Thus, in the literal sense of Article 6 § 1 of the European Convention on Human Rights, it may appear that it does not expressly enshrine the right of the interested person to resolve a dispute over civil rights and obligations by a court, outlining only the requirements of fairness of trial.

If a person does not have access to justice, other guarantees of the right to a fair trial become unfeasible.

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In addition, the right of access to justice must not only be formally recognized but also be «effective», which indicates the need to achieve an effective level of judicial protection. In this regard, N.Y. Sakara noted that although the right of access to justice is only one aspect of the right to a court, it is this right that makes it possible to implement other requirements of a fair trial (Sakara, 2006).

V. V. Komarov and N.Iu. Sakara identifies the following main components of the right to a fair trial: 1) unencumbered by legal and economic barriers access to justice; 2) due court procedure; 3) public trial; 4) consideration of the case by an independent and impartial court established by law; 5) a reasonable time for trial. (Komarov and Sakara, 2007).

From the above, it is also seen a significant positive impact of e-litigation on meeting reasonable deadlines, as information technology not only speeds up the trial, but also has a significant resource to ensure that litigation does not turn into a long process.

The implementation of e-litigation will provide an opportunity for a reasonable time trial for all interested parties, which indicates the prospect of full implementation of the Constitution of Ukraine, the Law of Ukraine «On the Judiciary and the Status of Judges» and procedural legislation.

At present, the consideration of court cases in the context of meeting reasonable deadlines is a really serious problem in the judicial system. The European Convention on Human Rights provides a criterion such as a reasonable time, referred to in paragraph 1 of Article 6 of this document. The complexity of the case, the realization of the different approaches of the judicial authorities to the consideration of specific cases, certain aspects of the applicants' conduct that may have affected the extension of the trial, as well as certain circumstances that justify a longer trial are factors for which the European Court of Human Rights draws attention when clarifying the circumstances of the case and examining the question of compliance of the court procedure with a «reasonable time».

The meaning of the criterion of «reasonable time» is a rather broad concept, and therefore over the years of work the European Court of Human Rights has repeatedly pointed to three established criteria, which determine the «reasonableness» of the time of the case: complexity of the case, the applicant's conduct,

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226 the conduct of the authorities. The rationing of the workload per judge also has a significant impact on the observance by courts of reasonable time limits for consideration of cases. This situation negatively affects the perception of the court in society as a whole, resulting in «standard» decisions with a low level of motivation, which ultimately gives the expected result - lower quality of justice and lowering the status of a judge.

Undoubtedly, electronic proceedings will have a positive effect on the speed of court proceedings, which will allow to adhere to the principle of a reasonable time for consideration of the case.

Ukraine is gradually moving away from such approaches and following the trends of world technological development, moving from paper litigation to more efficient litigation through the use of information technology. In our opinion, ejustice can solve the problem of access to justice, which is one of the components of the rule of law and a separate no less important principle.

To implement the above goals, on May 22, 2003, the Law of Ukraine «On Electronic Documents and Electronic Document Management» was adopted, which established the basic organizational and legal principles of electronic document management and use of electronic documents, defined the concept of electronic document and electronic document management, defined rights, obligations and responsibility of electronic document management entities.

Special regulations that currently introduce certain elements of the «e-court» in a broad sense are the Law of Ukraine «On the Judiciary and the Status of Judges», which obliges the State Judicial Administration of Ukraine to: implement an e-court; execution of measures to organize the exchange of electronic documents between courts and other government agencies and institutions.

With the adoption of the procedural reform, according to which the Unified Judicial Information and Telecommunication System (UJITS) is being implemented in Ukraine. In particular, it will ensure the exchange of procedural documents in electronic form between courts, between the court and the participants in the process, between the parties themselves, as well as the recording of the process and participation in the trial by using videoconference.

Among the obvious advantages of the introduction of UJITS can be distinguished: 

 

Along with this Law, the Law of Ukraine «On Electronic Digital Signature» was adopted, which defined the legal status of electronic digital signature and regulated relations arising from the use of electronic digital signature, and 05.10.2017 Law of Ukraine «On electronic trust services» (Law No 2155-VIII, 2017).

An important step towards informatization of the judicial system was the approval on December 21, 2012 by the Council of Judges of Ukraine of the Strategic Plan for the Development of the Judiciary of Ukraine for 2013-2015, which identifies access to justice, innovative use of technology and improvement of judicial increase and maintain a high level of trust in the courts as one of the strategic objectives of the judiciary of Ukraine.

Since 2012, the State Judicial Administration has launched a pilot project for the development of electronic justice.

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

time saving (if a party to the case, a lawyer or another person, who is involved in a case which is decided by a court of another region, it will be more convenient for them to send the necessary documents in electronic form, read the case materials than spend time traveling); mobility of work with procedural documents (quick access to case materials at a convenient time); money saving (the ability to work with procedural documents in cases in a way that a person who wishes to receive or submit a document without the need to go to a particular court and send the letter by mail); implementation of the principles of accessibility and openness of justice (every participant in the process who has passed the registration procedure in the system and has a personal qualified electronic signature will be able to send or view the document), etc.

Undoubtedly, the advantages include the fact that now there is no need to certify copies of documents. This can be done with a qualified electronic signature. After all, when a lawyer certifies any document when submitting it to the court, he takes responsibility for its authenticity.

It is also worth noting that, given all the advantages of e-litigation, there are some problems.

First of all, there is a high risk of losing legally important information, lack of «computer

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literacy» at the level of qualified users among judges and court staff (which is a serious problem for people, especially for the older generation); development and commissioning (which in our conditions is even more difficult) of the relevant software; necessary technical equipment in the courts. Some researchers note the problem of the implementation of electronic justice through a psychological aspect, because most people still prefer traditional «paper» justice.

The passage of time and technological changes are inevitable and many countries have long ago implemented and actively use them. For example, e-court became part of the US judicial system, providing access to a case information and other information related to litigation (US e-court system). Since 1998, the «Case Management / Electronic Case Files» (CM / ECF) system has been adopted for the implementation of electronic storage in all US federal courts to form a common integrated system, which in turn is complemented by the Public Access to Court Electronic Records system (PACER) to provide access to relevant files on the Internet. The system provides the opportunity to receive explanations on the use of the system, registration, search for the necessary case, submission of application, etc.

For example, the «fedcourt» portal in Australia defines certain ethical principles of electronic litigation. First, participants in the trial (judges, lawyers, jurists) must be experienced, professional and impartial. Australia's elitigation system stipulates that a minimum of 2,000 cases can be dealt with simultaneously within six months, which are given for consideration of each case. There are separate subsystems for consideration of court cases and appeals, conducting court procedures in the mode of videoconferences with the help of the program.

Among the countries with a continental legal system, the most exemplary is e-litigation in Germany. In particular, the submission of documents, their processing and even decisionmaking take place in electronic format. In addition, with the help of a paid personal account, it is possible to enter into a discussion with the opponent in writing and challenge the documents provided by him.

Hesse (Germany) opened an electronic legal connection in 2007. On February 23, 2021, «Stuttgarter Nachrichten» announced the current digitization of courts in Baden-Württemberg.

Currently, about 1,200 judges can hold digital

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hearings using the new technology. Even before the coronavirus pandemic, on January 20, 2020, Saxony announced that it would switch to electronic file management and that a pilot project is going to be created.

From January 1, 2026, courts and prosecutors will be obliged to conduct cases electronically. In Bavaria, videoconferences have been used for some time in civil proceedings. This will also apply to other proceedings in the future.

However, Bavarian courts need to become even more digital.

According to the provisions of section 128a of the German Code of Civil Procedure (ZPO), negotiations via video and audio transmission are already permissible. It also states that free access to court hearings should be guaranteed to everyone (Frank, 2021).

Conclusions Summing up, it should be noted that Ukraine, like the whole world, is rapidly moving forward in the direction of building a new information society.

The transition to e-justice will certainly replace the paper routine and facilitate access to justice, as well as make justice more transparent and accessible.

Today, the e-court provides litigants with such opportunities as: 1) payment of court fees online; 2) obtaining information on the stages of court proceedings (there is possibility on the official web portal «Judiciary of Ukraine» for users of the portal to view / search / print information on the stages of court proceedings); 3) obtaining information from the Unified State Register of Court Decisions, which is an automated system for collecting, storing, protecting, accounting, searching and providing electronic copies of court decisions; 4) sending procedural documents to the participants of the trial by email; 5) sending a court summons in the form of SMS-messages; 6) obtaining information about the presence of business entities (counterparties, debtors, guarantors, etc.) in the bankruptcy procedure.

Analyzing the current state of the use of information technology in the Ukrainian judiciary and international experience, we can conclude that the mandatory implementation of electronic litigation is currently impossible due to the unavailability of the Internet, computer literacy of Ukrainian population and other

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228 factors. Such actions can effectively deprive almost half of the population of access to justice, which in turn will have a negative impact on the observance of human rights, the realization of tasks and the basic principles of civil proceedings.

Of course, it is worth emphasizing that, due to the obvious advantages of e-litigation and the coronavirus pandemic, the latter is becoming more popular. This applies mainly to the exchange of electronic documents using QES, court hearings by videoconference. In the conditions of the crisis caused by the pandemic, the introduction of remote proceedings has become especially important - because it is the courts that have felt its importance the most, and technological changes in work, which until recently were unattainable, have become a reality today.

However, in order to develop the use of information technologies in the process of implementing procedural legislation, it is necessary to introduce a single unified information platform for communication between the participants in the process and the court, which for now can be the Unified Judicial Information and Telecommunication System.

International experience shows that the use of electronic technologies in the judiciary promotes more efficient judicial activities, simplifies the exchange of information between courts, participants in the process, as well as other authorities.

Currently, Ukraine is expected to approve the Regulations on the Unified Judicial Information and Telecommunication System, which will be another step towards the introduction of e-justice in all state courts.

The implementation of the Unified Judicial Information and Telecommunication System will allow to fulfill the tasks set before civil proceedings and adhering to its basic principles: equality of all participants in the trial before the law and the court, publicity and openness of the trial, full fixation by technical means, reasonable time of court proceedings, adversarial parties, etc.

Bibliographic references Case of Stafford v. the United Kingdom Application no. 46295/99. Judgment of the European Court of Human Rights Strasbourg, France. May 28, 2002. Recovered from

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https://hudoc.echr.coe.int/eng#{%22dmdocn umber%22:[%22698363%22],%22itemid%2 2:[%22001-60486%22]} Chucha, S.Iu. (2014). Implementation of the principle of openness of justice in the activities of the arbitral tribunal. Bulletin of Omsk University. Law Series, 2 (23), 114117.

Recovered from https://cyberleninka.ru/article/n/realizatsiyaprintsipa-otkrytosti-pravosudiya-vdeyatelnosti-arbitrazhnogo-suda-omskoyoblasti-pravovye-problemy-iperspektivy/viewer Council of Europe (1950). Convention for the Protection of Human Rights and Fundamental Freedoms Recovered from https://www.coe.int/en/web/conventions/full -list?module=treaty-detail&treatynum=005 Council of Europe (2008). Report of the Committee of Ministers CM(2008)170, November 27, 2008. Strasbourg, France.

Recovered from https://www.coe.int/t/dc/files/Ministerial_Co nferences/2009_justice/CM%20170_en.pdf Council of Europe (2011). Conclusion № 14 Conclusion of the Advisory Council of European Judges «Judiciary and Information Technology».. Strasbourg, November 9, 2011.

Recovered from https://rm.coe.int/168074816b Decision № 9-рп/2012, 2012. Constitutional Court of Ukraine. Base of legislation of the Supreme Council of Ukraine, Kyiv, Ukraine, April 12, 2012.

Recovered from https://zakon.rada.gov.ua/laws/show/v009p7 10-12#Text Frank, J. B. (2021). Digitization of litigation in the judiciary. Rödl & Partner. March 24, 2021 Recovered from https://www.roedl.de/themen/rechtsberatung /digitalisierung-prozessfuehrung-gerichtestreitbeilegung-geschwindigkeitvertraulichkeit Hyliaka, O.S. (October, 2020). Some aspects of the functioning of e-justice in Ukraine.

Current challenges and current problems of judicial reform in Ukraine. Kyiv: VAITE Publishing House.

Recovered from https://law.chnu.edu.ua/wpcontent/uploads/2020/12/Zbirnyk16.10.20.pdf Khanyk-Pospolitak, R. (2017). Introduction of ejustice in civil proceedings of Ukraine. Law of Ukraine, 8, 122-129. Recovered from https://rd.ua/storage/lessons/38/75412.%D0 %A5%D0%B0%D0%BD%D0%B8%D0%B A%D0%9F%D0%BE%D1%81%D0%BF%D

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0%BE%D0%BB%D1%96%D1%82%D0% B0%D0%BA%20%D0%A0.-122-129.pdf Komarov, V.V. & Sakara, N.Iu. (2007). The right to a fair trial in civil proceedings. Kharkiv: National Academy of Law of the University of Ukraine.

Recovered from https://dspace.nlu.edu.ua/bitstream/1234567 89/247/1/004.htm Komarov, V.V. (2012). Civil procedural legislation in the dynamics of development and practice of the Supreme Court of Ukraine. Kharkiv: Pravo. Recovered from http://library.nlu.edu.ua/POLN_TEXT/MON OGRAFII_2012/Komarov_Dinamici_2012. pdf Law No 1402-VIII, 2016. Оn the Judiciary and the Status of Judges. Base of legislation of the Supreme Council of Ukraine, Kyiv, Ukraine, June 2, 2016.

Recovered from https://zakon.rada.gov.ua/laws/show/140219#Text Law No 1618-IV, 2004. Civil Procedure Code of Ukraine. Base of legislation of the Supreme Council of Ukraine, Kyiv, Ukraine, March, 18, 2004.

Recovered from https://zakon.rada.gov.ua/laws/show/161815#Text Law No 2155-VIII, 2017. Оn electronic trust services. Base of legislation of the Supreme Council of Ukraine, Kyiv, Ukraine, October 5, 2017.

Recovered from https://zakon.rada.gov.ua/laws/show/215519?lang=en#Text Maikut, Kh., Andrusiv, U., Yurkevych, Y., Dutko, A., & Zaiats, O. (2020). Protection of the right to property in the case law of the European court of human rights. Revista Amazonia Investiga, 9(28), 497-507. DOI: http://dx.doi.org/10.34069/AI/2020.28.04.54 Sakara, N.Iu. (2006). The problem of access to justice in civil cases. (Extended abstract of

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Candidate’s thesis of Law). National University «Yaroslav the Wise Law Academy of Ukraine». Kharkiv. Recovered from http://www.irbis-nbuv.gov.ua/cgibin/irbis_low/cgiirbis_64.exe?C21COM=2& I21DBN=ARD&P21DBN=ARD&Z21ID=& Image_file_name=DOC/2006/06snypcs.zip &IMAGE_FILE_DOWNLOAD=1 Samborska, O. (2013). The service of receiving procedural documents from the court in electronic form, as well as SMS-summonses is gradually gaining popularity among the participants in the process. Law and Business, 35.

Recovered from https://zib.com.ua/ua/print/50012kerivnik_proektu_elektronniy_sud_osambor ska.html Statute of the Council of Europe (1949). Council of Europe. May 05, 1949. London, United Kingdom.

Recovered from https://rm.coe.int/1680935bd0 The Constitution of Ukraine No 254k / 96, 1996.

Base of legislation of the Supreme Council of Ukraine, Kyiv, Ukraine. June 28, 1996.

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Bulletin of Lviv University, 64, 144-150.

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DOI: https://doi.org/10.34069/AI/2021.44.08.22 How to Cite: Pavlyuk, O., Parasiuk, N., Dutko, A., Parasiuk, V., & Stasiv, O. (2021). Protection of patent law objects, created by artificial intelligence (AI) technologies. Amazonia Investiga, 10(44), 230-240. https://doi.org/10.34069/AI/2021.44.08.22

Protection of patent law objects, created by artificial intelligence (AI) technologies Охороноздатність об’єктів патентного права, створених технологіями штучного інтелекту Received: August 1, 2021

Accepted: September 15, 2021

Written by: Olha Pavlyuk87 https://orcid.org/0000-0002-6165-4767 Nataliia Parasiuk88 https://orcid.org/0000-0002-7489-9181 Alona Dutko89 https://orcid.org/0000-0002-5062-6947 Vasyl Parasiuk90 https://orcid.org/0000-0002-8195-7597 Oksana Stasiv91 https://orcid.org/0000-0002-4846-7035 Abstract

Анотація

The aim of the article is to solve the scientific problem of outlining the issue of protection of patent law objects created using artificial intelligence technologies, and to establish whether it is possible to recognize artificial intelligence technologies as inventor at the present stage of development of legal systems.

Philosophical, comparative-legal and systemstructural methods were used in the research process. Based on the analysis of the European Patent Convention, the main generally accepted conditions of patentability of the invention are determined: novelty, inventive step, industrial applicability. It has been established that inventions created by artificial intelligence technologies will meet such criteria provided that certain requirements are met. In the context of the study, the case of the invention of artificial intelligence «DABUS» is analyzed and the results of its consideration in the European Patent Organization, the United Kingdom and the United States are summarized. In particular, it

Метою статті є вирішення наукового завдання щодо окреслення проблематики охороноздатності об’єктів патентного права, створених за допомогою технологій штучного інтелекту, та встановлення можливості визнання технологій штучного інтелекту винахідниками на сучасному етапі розвитку правових систем. В процесі дослідження використано філософський, порівняльноправовий та системно-структурний методи. На основі аналізу Європейської патентної конвенції визначено основні загальновизнані умови патентоздатності винаходу: новизна, винахідницький рівень, промислова придатність. Встановлено, що винаходи, створені технологіями штучного інтелекту, відповідатимуть таким критеріям за умови дотримання певних вимог. В контексті дослідження проаналізовано справу щодо винахідництва штучного інтелекту «DABUS» та підсумовано результати її розгляду у Європейській патентній організації,

87

Postgraduate student of the Civil Law Disciplines Department, Institute of Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

88 Candidate of Law, Associate Professor, Associate Professor of the Criminal Law Department, Institute of Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

89 Candidate of Law, Associate Professor, Associate Professor of the Civil Law Disciplines Department, Institute of Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

90 Candidate of Law, Associate Professor, Associate Professor of the Theory of Law, Constitutional and Private Law Department, Institute of Specialist Training for National Police Units, Lviv State University of Internal Affairs, Lviv, Ukraine.

91 Candidate of Law, Associate Professor, Associate Professor of the Social Law Department, Faculty of Law, Ivan Franko National University of Lviv, Lviv, Ukraine.

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has been established that artificial intelligence technologies are currently not considered as inventors in either the Romano-Germanic or Anglo-Saxon legal systems.

Key words: patent law, invention, patentability, human inventor, artificial intelligence (AI) inventor.

Великобританії та США. Зокрема, встановлено, що технології штучного інтелекту на теперішній час не вважаються винахідниками ні в романо-германській, ні в англо-саксонській системах права. Ключові слова: патентне право, винахід, патентоздатність, винахідник-людина, винахідник-штучний інтелект.

Introduction The rapid development of artificial intelligence (AI) has a significant impact on the economy and society as a whole. Such innovations affect both production and the industrial characteristics of a wide range of goods and services, which is important for productivity, employment and competition. However, it should be understood that artificial intelligence can have consequences that can be equally profound for all institutions of modern society and at the same time have a decisive impact on certain specific institutions, including the legal regulation of objects of patent law created by artificial intelligence technologies.

Patent law has traditionally developed on the basis of the concept of «human inventor». At the same time, the emergence of such a concept as «inventor-artificial intelligence» raises a number of new questions to which the modern patent system may not have simple answers and solutions. For example, it is unclear whether artificial intelligence algorithms (AIs) should be subject to patent protection, or whether the widespread use of AI inventions would require a reassessment of basic patent concepts, such as the inventive step. There is no consensus on whether technology can be considered an inventor. Who would own a patent if AI technology created an invention with little or no human intervention?

Thus, the purpose of this study will be to determine whether it is possible in the current legal field to recognize artificial intelligence as an inventor.

Achieving this goal will help determine whether patent law is consistent with today's realities and the rapid development of technology.

Literature review Given that in Ukrainian science there are almost no publications of domestic authors on the subject of this study, the scientific and theoretical basis was the work of such authors as Abbott R.,

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Blok P., Fraser E., Hattenbach B., Glucof J., Mclaughlin M., Tull S., Vertinsky L., Sánchez E. G., García L. S., Gargallo M. M., Rodríguez E. G., Arias D. D., Manrique R., Giraldo F. and others. The content of the position of these scientists on the issue to be considered in this article will be set out in the main text of the study.

However, we consider it appropriate to mention some of them.

For example, Abbott's position is that computers have been "autonomously" producing patentable results for at least the last two decades and proves that such inventions meet the criteria of patentability. Abbott even argues that computational innovations can gradually lead to the complete replacement of the notion of «expert in the relevant field of technology» by the notion of «skilled computer», resulting in «everything would be obvious» for a superintelligent machine (Abbott, 2016).

In opinion of Sánchez E. G., artificial intelligence is widely used in reports, conferences and other events of an essentially informative nature, but it lacks a minimum of safe contours that need to be limited when it comes to analyzing the legal forms that can be used for their protection. Author mentions that AI and its’ technical nature should be analyzed considering the EPO Board of Appeal Decisions and the EPO Guidelines, which do not maintain the same criteria in all cases. Sánchez E. G. also defends the cumulative nature of this protection system with which it derives from copyright and trade secrets legislation (Gallego Sánchez, 2019).

Vertinsky L. notes that, today, artificial intelligence technologies, such as artificial neural networks, are able to study and find solutions to certain problems with little or no human involvement and there are cases when technologies generate appropriate inventive solutions with a significant degree of autonomy and are no longer just tools that have helped people in this (Vertinsky, 2017).

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232 García L. S. stated that, today, there are already patentable inventions created by a phenomenon known as Artificial Intelligence. In his scientific research he introduced a new notion of «Artificial Intelligent Agent» (AIA), which, on his opinion, allowing to cover all the branches of AI capable of generating inventions autonomously. The AIAs would become true subjects of rights and obligations, an option that, in his opinion, would need to be nuanced, having to submit the exercise of the powers recognized by this "legal personality". He also proposed a specific regime for inventions created by AIAs. In his opinion, and given the character of subordination to a predicable human and, above all, expected from AIAs, one could to draw up a regime of ownership of the inventions generated by these entities establishing a parallel with those achieved in the framework of an employment or service relationship - labor inventions (Sánchez García, 2018).

Fraser E. indicates that the increasing use of AI may require a complete rethinking of the existing standard of inventive step in the long run, given that computers have extensive prior art knowledge - potentially far beyond anyone's knowledge (Fraser, 2016).

Gargallo M. M. notes that the use of artificial intelligence systems to generate inventions determines the need to consider their role in the inventive process. Patent legislation links the condition of inventor to the natural person, starting from the conception of that an invention is the fruit of human ingenuity. Author also emphasizes that, only when the human contribution is accessory, because the artificial system acts in a fully autonomous, the adaptation of the patent system should be considered so that such inventions can also take advantage of the incentives for technical progress that patent law provides (María del Mar Maroño Gargallo, 2020).

According to the Blok P., European Patent Convention does not explicitly exclude the patentability of inventions generated by AI systems, and the way in which the invention was created does not matter (Blok, 2017).

Rodríguez E. G., Arias D. D., Manrique R., Giraldo F. state that, strengthen the capacities of industrial property offices in the field of AI is a fundamental challenge to overcome the difficulties associated with the low number of professionals with the required training and with the volume of records that must be analyze. In this context, both World intellectual property

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organization and competent national offices have understood that the use of artificial intelligence technologies and developments in the management of industrial property is a powerful and useful tool to assist in their functions missionaries. Such AI systems are of course dependent on data (and algorithms) and in the world of IP an access policy is widely accepted open to information related to patent applications, brands and designs (García Rodríguez, Duque Arias, Manrique, Giraldo, 2020).

All the above researchers have tried to solve some problems related to the patentability of inventions that have been created by artificial intelligence technologies. Despite the various subjects of their research, they all, in one way or another, concluded that although at the moment, no legal system has expressly provided for a specific regulation for inventions generated by AI, artificial intelligence is able to create inventions that will meet the criteria of patentability and may, as a consequence, be recognized as an inventor.

Some legal problems of using artificial intelligence technologies are considered in the works of O. A. Baranov, О.Е. Radutny, E.O. Kharitonova, O.I. Kharitonova and others.

At the same time, the research of domestic scientists ignores the problematic for the modern world issues regarding the use of artificial intelligence technologies in the field of patent law, in particular, in the creation of inventions, which determines the need and relevance of this study.

Methodology The methodological basis of the study is a system of philosophical, general and special methods of scientific knowledge, characteristic of legal science – philosophical, comparative law, system-structural methods.

The above methods were used as follows: philosophical method – used in the review of the state and methods of using artificial intelligence technologies in the field of patent law, helped to identify the main generally accepted features of the patentability of the invention; comparative legal method – it was used to determine the features of international legal regulation of the legal status of patent law objects created by artificial intelligence technologies, on the example of European Union, US and UK legislation, in particular, generalize and compare

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the results of DABUS case in these countries; system method – based on the study and the collected data system, it helped to establish the answer to the question of the possibility of recognizing artificial intelligence as an inventor at this stage of development of legal systems.

The application of the system of these methods is conditioned by the specifics of the raised problem and allowed to ensure the reliability of the obtained results, the correctness of the formulated conclusions, the solution of the outlined tasks and the achievement of the set goal.

Results and discussion Machines and computers have been used for a long time as tools to create a variety of patentable inventions in fields such as chemistry and biotechnology (Hattenbach and Glucoft, 2015).

Today, artificial intelligence technologies, such as artificial neural networks, are able to study and find solutions to certain problems with little or no human involvement. So, there are cases when technologies generate appropriate inventive solutions with a significant degree of autonomy and are no longer just tools that have helped people in this (Vertinsky, 2017).

Thus, the participation of the computer in the inventive process can be conceptualized in the process of producing a certain object or creating a certain good. This process is gradually moving from man-made inventions to inventions created using technology, and finally to computer inventions (suggesting that the importance of the human role in this process is gradually diminishing or disappearing altogether) (McLaughlin, 2018).

Not surprisingly, it is the last stage of this process that is particularly controversial in the context of patent law.

Abbott argues that computers have been «autonomously» producing patentable results for at least the last two decades (Abbott, 2016).

Before addressing the invention of AI technology, the interaction between AI inventions, existing patent law rules, and basic patentability requirements for inventions, such as novelty, inventive step, and industrial applicability, should be considered.

It is known that patents are issued as part of a socalled «patent agreement» – a time-limited monopoly granted to individuals in exchange for

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the disclosure of new inventions in the public sphere (and, ultimately, providing them with open access). The rationale for this is that, although the patent owner receives a set of temporary exclusive rights, the technical information disclosed by the patent owner can be used by competitors and the general public after 20 years. Patents are granted exclusively for inventions that have a relevant subject, are new, include the inventive step and can be applied industrially (European Patent Convention, 1973).

The European Patent Convention (hereinafter – EPC) provides the appropriate legal basis for the grant of European patents. With regard to the subject matter, the EPC does not attribute patentability to, inter alia, discoveries, mathematical methods, mental actions and computer programs, but «only to the extent that a european patent application or a european patent relates to an object or activity as such» (European Patent Convention, 1973).

For the purposes of this analysis, a distinction should be made between the patentability of the AI system itself and its works. First, a typical AI algorithm – such as a neural network – is likely to be considered a mere mathematical method or mental act and is therefore not in itself patentable due to its lack of technical effect.

At the same time, the European Patent Organization (hereinafter – EPO) has issued specific guidelines on artificial intelligence and machine learning, recognizing that, for example, the use of a neural network to detect irregular heartbeat would be technically necessary to qualify as a patentable invention (in contrast to the system for classifying text solely in terms of its literal content, which is unlikely to meet this criterion) (EPO Guidelines for Examination, 2021). The specificity of patent applications is likely to be key in these circumstances; nonspecific, vague, or applications with significantly exaggerated content obviously fail (Borella, 2018).

On the other hand, limiting a patent application to a specific technical purpose may be crucial for recognizing the existence of an appropriate technical level recognition according to the invention (Hashiguchi, 2017). Accordingly, inventions that are based on machine learning or AI designed to solve a particular problem, often without limiting the solution to a particular algorithm, may be considered patentable.

Second, the EPC does not explicitly exclude the patentability of inventions generated by AI

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234 systems, and the way in which the invention was created does not matter (Blok, 2017).

Moreover, Article 27 of the Agreement on TradeRelated Aspects of Intellectual Property Rights and Article 52 of the EPC state that patents must be granted without discrimination in the field of technology (EPO Case T-1173/97, 1998). Thus, it can be argued that inventions should be considered patentable even if they are generated autonomously by AI. The next step in the study is to establish the main criteria for granting legal protection to inventions and whether they can be applied to inventions created by artificial intelligence technologies.

It is necessary to begin with novelty.

In order to be patentable, an invention must be «new». The condition of novelty is met when the invention is not part of the «state of the art», a concept that includes all materials available to the public anywhere in the world before the date of priority (European Patent Convention, 1973).

However, the key issue here is the risk that AI technology can make it significantly more difficult for the applicant to establish novelty in general. In fact, AI could dramatically expand the previous level of creativity – which is fundamental to the assessment of novelty: «where thinking machines ... expand what people understand, the concept of the prior art can become much broader ... complicating the establishment of novelty ... The concept accessibility and use may need to be reconsidered, for example, where thinking machines generate vast amounts of discoveries and make those discoveries that are easily accessible to machines but incomprehensible to humans» (Vertinsky, 2017).

Applications created by AI (for example, applications from the French company Cloem, which uses existing language processing technologies to help patent applicants) can also be specifically created to saturate the technical space around already patented inventions to prevent patentee's competitors from obtaining patents for improvements in the same field (Hattenbach, Glucoft, 2015).

However, not all information published on the Internet is able to destroy the novelty of the invention. The physical availability of such information is not critical «if the computergenerated texts were not actually instructive to the educated reader» (Fraser, 2016).

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The next criterion is the inventive step. In order to be patentable, an invention must meet the inventive step requirement (Article 52 (1) EPC).

This condition is met when (given the state of the art) the invention would not be obvious to a «specialist in a particular field» (European Patent Convention, 1973).

A specialist in a particular field is understood as «a qualified specialist in the relevant field of technology who has average knowledge and abilities». Therefore, patents cannot be granted for inventions that are within the knowledge of the average expert in the field, who, according to Blok (2017), is «generally considered» (albeit implicitly) human.

The use of terms such as «person» and «specialist» adds additional importance to this argument.

Given the (potentially) high level of intelligence of 21st century technologies, the result of its activities – the invention – in many cases would correspond to the required inventive step, which is recognized as a threshold. For example, some of Watson's work (an IBM-designed computer capable of answering questions, asked in colloquial language) surprised even its developers – it's «encouraging» in terms of artificial intelligence ingenuity, given that unexpected results are sometimes acceptable when experts assess the non-obviousness of the invention (Abbott, 2016).

Conversely, certain applications that have been mechanically generated by AI can be considered obvious. For example, the aforementioned company Cloem uses software for linguistic manipulation, which simply adds or removes sentences. He relies on a «rough calculation» to compile texts for thousands of statements that may cover new inventions.

However, many of these claims would be «the result of a relatively small adjustment, and these minor modifications that work in predictable ways would be considered obvious» (Hattenbach and Glucoft, 2015).

Most importantly, the increasing use of AI may require a complete rethinking of the existing standard of inventive step in the long run, given that computers have extensive prior art knowledge – potentially far beyond anyone's knowledge.

The spread of AI may necessitate raising the level of patentability and making changes to the

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existing concept of «specialist in a particular field», including a person «equipped with AI», raising the ability of a conventional person to the capabilities of a complex machine (Tull, Miller, 2018).

Abbott even argues that computational innovations can gradually lead to the complete replacement of the notion of «expert in the relevant field of technology» by the notion of «skilled computer», resulting in «everything would be obvious» for a superintelligent machine (Abbott, 2016).

According to Abbott, as machines-inventors continue to improve, this will increasingly raise the bar of patentability, which over time makes innovation obvious. The end of the obvious means the end of patents, at least as we know them now (Abbott, 2019).

Therefore, an overly expansive approach to the obvious would mean that very few things could receive patent protection.

Moreover, while more stringent patent procedures are generally welcomed (especially since patent offices often criticize excessive generosity), a patent system in which the basic level of inventive step includes a «skilled computer» is not without its problems. Inspectors and judges would have to think like a machine and consider a level of technology that may be within the reach of computers, but not people, which is practically impossible.

As for the requirement of industrial applicability of the invention, this requirement is met by providing that the invention can be created or used in any field (European Patent Convention, 1973). Although this is a basic requirement, the inventions created by AI do not raise any new issues in this regard. For example, the bristle design of the Oral-B toothbrush invented by Thaler’s Creativity Machine would probably meet this requirement.

The disclosure requirement stimulates innovation: it prevents unnecessary duplication of research, allows innovation to continue by informing patent owners about the limits of the patented invention, and benefits the general public by ensuring the dissemination of new technology.

From the point of view of the inventions created

by AI, it is often difficult to describe how the algorithm actually works. As Rich explains, «machine learning tends to create such complex

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models that they turn into 'black boxes', where even the original programmers of the algorithm have little idea how and why the created model provides accurate predictions» (Rich, 2016).

Consider an example of an artificial intelligence system that learns from a very specific set of data, as a result of which the configuration is not fully known or cannot be duplicated by others. The key problem is that if the invention cannot be reproduced, it will not be considered sufficiently disclosed.

On this basis, Frueh argues that «the requirement of patent law to disclose information about an invention ... is under attack by AI, and this may adversely affect the patent system as a whole, especially its legitimacy, which is based on a «quid pro quo-bargain» – the so-called «contract theory» (Frueh, 2019).

Having determined the main criteria for the patentability of inventions, and that inventions created by artificial intelligence technologies meet them under certain conditions, it is necessary to investigate the answer to the main problem of this study – whether artificial intelligence is recognized by the inventor in the current legal system.

A review of the well-known DABUS case, the subject of which was the issue of invention in the context of AI, will help to resolve this problem.

In January 2020, the EPO published a document setting out its grounds for refusing two patent applications filed by Stephen Thaler's legal representatives under the Artificial Intelligence Project, calling the machine (DABUS) an inventor. The Artificial Intelligence Project team was led by Ryan Abbott (an academician at the University of Surrey), who has recognized intellectual property rights to autonomously created artificial intelligence objects. The project team acknowledged that although in most cases the AI system acts only as a «tool», there are cases where the act of invention can be functionally automated and performed by a machine. They point out that there is no need to protect the AI's right to own the invention, given that the machine does not have any legal status and cannot be the owner. They argue that it is the AI owner who should have the right to own the results created by the AI. Thaler filed two separate applications with the EPO (in addition to the applications filed with the U.S. Patent and Trademark Office, the UK Intellectual Property Office and the Israeli Patent Office), according to which DABUS was

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236 identified as the inventor. The first application was submitted for a plastic beverage container (EP18275163); another application concerned a flashing beacon intended for use in search and rescue missions (EP18275174).

According to the applicant, the machine «discovered the novelty of its own idea earlier than an individual did» (EPO, 2020). For simplicity of the analysis it is necessary to stop on the first application mentioned above (arguments are identical in both decisions).

When the applications were submitted to the EPO, the applicant left the place where the data on the inventor should have been indicated blank.

Thaler was allowed to rectify this because the application did not comply with Article 81 and Rule 19 (1) of the EPC, which states that a European patent application must identify the inventor. He later identified «DABUS» as an inventor, describing it as «a type of connective artificial intelligence» (EPO, 2020). Thaler further argued that Rule 19 (1) of the EPC did not require the inventor to be a human being and that the actual purpose of the provision was to correctly identify the inventor. He also argued that, given that the AI system had created the invention on its own, calling someone else an inventor (even oneself) would be a violation of important principles of patent law; moreover, he argued that «an inaccurate reference to an individual as an inventor would mislead the public» (EPO, 2020).

Thaler further argued that the designation of DABUS as the inventor was in line with the main objectives of the patent system, namely «to stimulate the disclosure, commercialization and development of inventions» (EPO, 2020).

The need for the inventor's details to include both his name and surname (argued below) will lead to unfair treatment of people of the same name.

Finally, Thaler stated that he had obtained the right to a patent from DABUS as his «successor».

He pointed out that, as the owner of the machine, he has the right to own any intellectual property rights created by the AI. The EPO rejected both applications on the grounds that no one was identified in the application as an inventor, contrary to the provisions of Article 81 and Rule 19 (1) of the EPC. The organization noted that according to Rule 19 (1) of the EPC, the designation must include a surname, name and address; just giving the machine a name (which is the case here) is not enough.

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Moreover, the European Patent Organization noted that 1) the section of the EPC «Travaux Préparatoires» constantly identifies an individual as inventor; 2) the interpretation of the term «inventor» through the concept of an individual is an «international standard»; 3) the concept of «human inventor» is recognized by various national courts, most members of the EPC, major patent offices, including Japan, the United States and China; 4) the patent laws of some Contracting States to the EPC clearly define the «inventor» as the natural person who created the invention; and 5) no national legislation has yet recognized artificial intelligence as an inventor (EPO, 2020).

Finally, the EPO rejected the argument that the applicant was the «employer» of DABUS – and therefore the successor under Article 60 (1) of the EPC. The reason for this was that AI systems and machines, as a rule, could neither be workers nor transfer any rights to a person due to lack of legal personality (EPO, 2020).

The UK Intellectual Property Office (UKIPO) issued a similar decision on DABUS in December 2019, which was later upheld by the High Court of Appeal of England and Wales.

The key issues in the UK Intellectual Property Office were: 1) whether a non-human inventor could be considered an inventor under the UK Patent Act 1977; and 2) whether Mr Thaler (the applicant) was entitled to apply for a patent (in favor of DABUS) only because he was the owner of the AI. The UK Intellectual Property Office, citing §7 (on the right to apply for a patent) and §13 of the Act (which, inter alia, required the applicant to explain how he obtained the patent in cases where he was not an inventor), answered negatively to both questions. In response to the first question, the UK Intellectual Property Office acknowledged that DABUS had created the inventions (the Office's practice is to accept the inventor's designation as such), but stated that the machine could not be called an inventor because it was not an individual.

Moreover, the United Kingdom Intellectual Property Office argued (hereinafter – UKIPO) that, although there is no directly relevant case law on this issue, at the same time there is a «clear expectation that the inventor and the person for the purposes of 7 and 13 respectively – it's one and the same, namely an individual – a person, not a machine endowed with AI» (UK Intellectual Property Office, 2019).

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The Office also noted that such arguments of the applicant essentially led to an interpretation of the law contrary to the purpose for which it was aimed, especially in the absence of any instructions from the legislature and the judiciary that the term «person» could mean anything else than an individual.

increasing number of inventions that lacked a human inventor (Nurton, 2020).

Responding to the second question (could Thaler have applied for a patent in favor of DABUS because he is the owner of AI), UKIPO stated that since DABUS is a machine that cannot own intellectual property due to its lack of legal status, it «has no right to its inventions and cannot enter into any agreement to transfer its right to apply for a patent to another person» (UK Intellectual Property Office, 2019).

Following the decisions of the EPO and UKIPO, the U.S. Patent and Trademark Office came to a similar conclusion regarding a parallel application filed by Thaler in the United States.

Most importantly, while the UKIPO's position on the above issues is not unexpected, the Office acknowledged that as inventions based on artificial intelligence are likely to become much more widespread in the future, further discussions on how the patent system must cope with such challenges should take place.

Recognizing that the existing legal system «does not properly regulate the legal status of such inventions, and it was never foreseen that this would be necessary», the UKIPO concluded that any changes to the law should be seen in the context of this debate, as opposed to arbitrary incorporation into existing legislation (UK Intellectual Property Office, 2019).

The High Court of Appeal of England and Wales upheld the decision of the UKIPO in September 2020.

In its decision, The High Court of Appeal placed considerable emphasis on the wording of the Law and refused to depart from its literal interpretation. The Court has made it clear that the current law does not provide for inventions created by artificial intelligence, and any changes in this position require action at the legislative level. Parliament could theoretically amend sections 7 and 13 of the Act to include AI systems as inventors, and, for example, automatically grant the owner of a machine any patents created

by AI. However, ideally, any such reform should be discussed through a harm-benefit analysis through open consultations to assess the impact in this area.

Following the High Court ruling, Professor Ryan Abbott (who coordinates DABUS applications) stated that such an approach did not protect an

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Moreover, he stressed that it allows people to take credit for work they have not done, thereby devaluing people's invention and misleading the public (Nurton, 2020).

In this case, Thaler is listed as the successor and the applicant in the application. «DABUS» was marked as the name of the inventor, and «Invention created by artificial intelligence» as a surname. The U.S. Patent and Trademark Office has stressed that various U.S. patent regulations consistently refer to «inventors» as individuals; e.g. 35 USC § 101 uses the phrase «[who] creates or discovers», and 35 USC § 115 uses terms such as «self», «self», «individual» and «person».

Based on relevant case law, the U.S. Patent and Trademark Office has also argued that it is clear that the concept of an invention (the «cornerstone of invention») is based on its creation by an individual (USPTO, 2019).

Finally, the Office rejected Thaler's argument that recognizing the machine as an inventor would encourage the creation of artificial intelligence systems-inventor and concluded that «granting a patent ... for an invention covering a machine does not mean that the machine can be included as inventor to another patent application (a camera patent allows the camera to own copyright) ... the machine cannot be an inventor under patent law» (USPTO, 2019).

Following a decision on August 6, 2020, Thaler Law Group filed a lawsuit against the U.S. Patent and Trademark Office in the Eastern District Court of Virginia.

In Thaler v. Iancu, group argues that the Bureau should follow the report of the National Patent Planning Commission of 1943, which states that «patentability is determined objectively by the nature of the contribution to the development of creativity, and not subjectively by the nature of the process by which, perhaps, the invention was created», thus opening the way to the invention of AI. The team explained its reasoning as follows: «We want to innovate. AI has been used to generate innovation for decades, and AI is getting better and better at doing these things, and

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238 people aren’t ... The law doesn’t clearly define whether you can have a patent if AI does that job, but if you can’t protect inventions created by artificial intelligence, you will be deprived of the opportunity to use them» (Thaler v Iancu et al, 2020).

The current case of the invention of artificial intelligence in the case of Thaler v. Iancu received another turn on April 6, when the judge of the US District Court Leonie Brinkem of the Eastern District of Virginia pointed out that artificial intelligence systems can not be listed as inventors in US patent applications.

At a brief hearing in the case, Judge Brinkem stated that Plaintiff Thaler was waging a «difficult battle ... because the legislative language [of the Patent Law] is so crystal clear that «the inventor» must be an «individual» and not a machine. Judge Brinkem further stated that the work of the legislature, not the courts, is to address such issues, given the rapid development of technology; «Courts are not legislatures ... and I think that, after all, what you are asking this court to do is adopt new legislation».

As of May 2021, this case has not yet been considered by the district court.

Conclusions Based on this study, it can be argued that artificial intelligence systems are now able to generate inventive results autonomously. However, because patent law has traditionally been designed with the human inventor in mind, many of its basic principles do not conform to the idea of an invention created by artificial intelligence technology.

It is established that the main internationally recognized criteria of patentability are novelty, inventive step, industrial applicability. It is determined that inventions created by artificial intelligence can meet such criteria under certain conditions, which were discussed above.

Based on the evaluation of the results of the DABUS case in various legal systems, it has been established that AI systems cannot currently be called inventors in either Europe or the United States. Is this approach optimal? There is no scientific consensus.

Instead, there is a situation where patent applicants may now not disclose the role played by the AI in the development of the invention (and instead call themselves inventors) in order

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to avoid problems in the patent offices on the grounds mentioned above. In other words, the existing legal system, in fact, authorizes lies in cases where a person actually had little or no role in the inventive process. Instead of indirectly encouraging dishonesty, patent offices should introduce a requirement for transparency and disclose the role of technology in the process of invention.

Because patent applications where the inventorartificial intelligence is unlikely to succeed, there is a risk that inventors will instead rely on trade secrets, keeping the invention secret and effectively undermining the basic rationale of the «patent agreement» (where both the inventor and society receive benefit from the disclosure and commercialization of the invention).

It is important to emphasize that not everyone agrees that inventions created using artificial intelligence technologies should be subject to patent protection. One possible alternative is an approach in which inventions created by AI automatically enter the public domain and are freely available to the general public. This may be justified on the grounds that, for example, the proliferation of machines-inventors could lead to an excessive number of patents being issued in the future, concentrated in the hands of several large corporations. However, such an approach may encourage the unfairness of patent applications, which will obscure the evidence for the invention of AI. Based on the above, it is possible to draw a conclusion that within the current legal field and taking into account the traditional approach to understanding inventive activity, to resolve issues with legal protection of potentially patentable results autonomously created by artificial intelligence technologies as inventions is currently not possible. This situation is typical not only for Ukraine but also for many other countries, and requires further study and appropriate solutions, including by changing the legal structures established by law, which is increasingly being talked about by experts.

It is obvious that the current legal mechanisms in most countries do not take into account the current level of development of artificial intelligence technologies and do not allow to protect potentially protective solutions in the scientific and technical field created by artificial intelligence systems. Of course, this state of affairs cannot meet the main goal of the patent system – to ensure the creation of new products and the development of advanced technologies in

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any field in the interests of society as a whole.

The optimal solution in this regard is the development of legislation.

Intellectual property law needs to undergo significant changes with the development of new technologies, but there is no urgent need to radically change the entire system and principles of this branch of law in order to ensure the recognition of the legal personality of artificial intelligence. In addition, given the current level of software and mathematical support for the development of artificial intelligence, there is also no urgent need (at least now and in the foreseeable future) to recognize artificial intelligence as a full-fledged (full-fledged, legal entity) subject of copyright and patent rights, intellectual property rights in general.

Bibliographic references Abbott, R. (2016). I Think, Therefore I Invent: Creative Computers and the Future of Patent Law. Boston College Law Review, 57(4), 1079-1126.

Abbott, R. (2019, May 28). Everything is obvious. Intellectual Property Watch.

Recovered from https://www.ipwatch.org/2019/03/25/everything-isobvious/.

Blok, P. (2017). The inventor’s new tool: artificial intelligence – how does it fit in the European patent system? European intellectual property review, 39(2). 69-73.

Borella, M. (2018, November 25). How to draft patent claims for machine learning inventions. Patentdocs. Recovered from https://www.patentdocs.org/2018/11/how-todraft-patent-claims-for-machine-learninginventions.html.

García Rodríguez, E., Duque Arias, D., Manrique, R,. & Giraldo, F. (2020). El Uso de Sistemas Inteligentes (IA) en el Registro de Propiedad Industrial. Revista La Propiedad Inmaterial, 30, 295-326. Retrieved from 10.18601/16571959.n30.11 EPO. (1998). Case T-1173/97 Computer Program Product/IBM, Technical Board of Appeal.

Recovered from https://www.epo.org/law-practice/case-lawappeals/pdf/t971173ex1.pdf.

EPO. (2020). Grounds for the EPO decision of 27 January 2020 on EP 18 275 163. Recovered from https://register.epo.org/application?documen tId=E4B63SD62191498&number=EP18275 163&lng=en&npl=false.

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EPO. (2021). Guidelines for Examination in the European Patent Office. Recovered from https://documents.epo.org/projects/babylon/e ponet.nsf/0/C4B20952A0A7EF6BC125868 B002A5C61/$File/epo_guidelines_for_exam ination_2021_hyperlinked_en.pdf.

Fraser, E. (2016). Computers as Inventors – Legal and Policy Implications of Artificial Intelligence on Patent Law. SCRIPTed, 13(3), 305-333.

Frueh, A. (2019). Transparency in the Patent System – Artificial Intelligence and the Disclosure Requirement. Žaneta Pacud and Rafał Sikorski, (3), 1-15.

García, L. S (2018). Invenciones generadas por inteligencia artificial y sus implicaciones para el derecho de patentes. Informática y Derecho: Revista Iberoamericana de Derecho Informático (segunda época), (5), 49-84.

Gargallo, M. D. M. M. (2020). El concepto de inventor en el derecho de patentes y los sistemas de inteligencia artificial. Cuadernos de derecho transnacional, 12(2), 510-526.

Hashiguchi, M. (2017). The Global Artificial Intelligence Revolution Challenges Patent Eligibility Laws. Journal of Business & Technology Law, 13(1), 1-36.

Hattenbach, B., & Glucof, J. (2015). Patents in an Era of Infinite Monkeys and Artificial Intelligence. Stanford Technology Law Review, 32, 33-51.

Mclaughlin, M. (2018). Computer-Generated Inventions. American University Washington College of Law, 39, 1-32.

Nurton, J. (2020, September 24). UK judge upholds refusal of DABUS patents.

Ipwatchdog.

Recovered from https://www.ipwatchdog.com/2020/09/24/uk -judge-upholds-refusal-dabus patents/id=125584/.

Rich, M. (2016). Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment. University of Pennsylvania Law Review, (164), 871-930.

Sánchez, E. G. (2019). La Patentabilidad de la Inteligencia Artificial. Compatibilidad con otros sistemas de protección. La Ley mercantil, (59), 4.

Thaler, v Iancu et al (1:20-cv-00903). Court Listener. In the United States District Court for the Eastern District of Virginia, 2020.

Recovered from https://storage.courtlistener.com/recap/gov.u scourts.vaed.483404/gov.uscourts.vaed.4834 04.1.0.pdf.

The European Patent Convention. (1973).

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240 0058BCAD/$File/EPC_17th_edition_2020_ en.pdf.

Tull, S., & Miller, P. (2018). Patenting Artificial Intelligence: Issues of Obviousness, Inventorship, and Patent Eligibility. The Journal of Robotics, Artificial Intelligence & Law, 1(5), 313-325.

UK Intellectual Property Office. (2019). Patent Decision BL O/741/19 of 4 December 2019.

Recovered from https://www.ipo.gov.uk/pchallenge-decision-results/o74119.pdf.

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United States Patent and Trademark Office.

USPTO. (2019).

«Petition decision: Inventorship limited to natural persons».

Recovered from https://www.uspto.gov/sites/default/files/doc uments/16524350_22apr2020.pdf?utm_cam paign=subscriptioncenter&utm_content=&ut m_medium=email&utm_name=&utm_sourc e=govdelivery&utm_term=.

Vertinsky, L. (2017). Thinking Machines and Patent Law. Emory Legal Studies Research Paper, (1), 1-23.

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DOI: https://doi.org/10.34069/AI/2021.44.08.23 How to Cite: Navrotska, V., Bronevytska, O., Yaremko, G., Maksymovych, R., & Matolych, V. (2021). The criminal responsibility for defamation of knowingly innocent. Amazonia Investiga, 10(44), 241-251. https://doi.org/10.34069/AI/2021.44.08.23

The criminal responsibility for defamation of knowingly innocent КРИМІНАЛЬНА ВІДПОВІДАЛЬНІСТЬ ЗА ОБМОВУ ЗАВІДОМО НЕВИНУВАТОГО Received: July 13, 2021

Accepted: September 10, 2021

Written by: Vira Navrotska92 https://orcid.org/0000-0002-3407-7984 Oksana Bronevytska93 https://orcid.org/0000-0002-0913-7033 Galyna Yaremko94 https://orcid.org/0000-0003-4333-0424 Roman Maksymovych95 https://orcid.org/0000-0002-9796-998X Vita Matolych96 https://orcid.org/0000-0002-6512-3189 Abstract

Анотація

The scientific article analyzes the acute discussion in law enforcement practice and procedural science of the problem of the possibility of criminal prosecution of a suspect, accused of defaming a knowingly innocent person in the commission of a crime. The theoretical basis of the article are scientific works on criminal law and criminal procedural law (both domestic researchers and foreign experts).

A set of general scientific, special scientific and philosophical methods of scientific knowledge has been used while preparing the scientific article, in particular dialectical, historical, comparative, dogmatic (formal-logical), systemstructural analysis, modeling. It is substantiated in the article that the behavior of the suspect, accused, which is manifested in slandering of a knowingly innocent person, does not constitute the right to freedom from self-disclosure. It is also proved that both freedom from selfdisclosure and the right to defense in criminal proceedings must have certain limits, in particular, it is rights and interests of other subjects protected by criminal law. We stated

У науковій статті аналізується гостра дискусія у правоохоронній практиці та процесуальній науці щодо проблеми можливості кримінального переслідування підозрюваного, обвинуваченого за наклеп на завідомо невинну особу у вчиненні злочину. Теоретичною основою статті є наукові праці з кримінального права та кримінального процесуального права (як вітчизняних дослідників, так і зарубіжних експертів). При підготовці наукової статті був використаний комплекс загальнонаукових, спеціальних наукових та філософських методів наукового пізнання, зокрема діалектичний, історичний, порівняльний, догматичний (формальнологічний), системно-структурний аналізу, моделювання. У статті обґрунтовано, що поведінка підозрюваного, обвинуваченого, що виявляється в наклепі на завідомо невинну особу, не становить права на свободу від самовикриття. Також доведено, що як свобода від саморозкриття, так і право на захист у кримінальному провадженні мають мати певні

92

Ph.D in Law, Associate Professor of the Department of criminal-law disciplines Lviv State University of Internal Affairs, Ukraine.

93 Ph.D in Law, Associate Professor of the Department of criminal-law disciplines Lviv State University of Internal Affairs, Ukraine.

94 Ph.D in Law, Associate Professor of the Department of criminal-law disciplines Lviv State University of Internal Affairs, Ukraine.

95 Ph.D in Law, Associate Professor of the Department of criminal-law disciplines Lviv State University of Internal Affairs, Ukraine.

96 Postgraduate Student of the Department of criminal-law disciplines Lviv State University of Internal Affairs, Lviv, Ukraine.

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Lviv, Lviv, Lviv, Lviv,

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that the suspect or accused should be liable for misleading the court and pre-trial investigation bodies even if such deception was used to protect against the suspicion (or accusation), to avoid criminal liability.

Key words: accused, defamation, false accusation, knowingly innocent, perjury of the suspect / accused, right to protection, suspect.

межі, зокрема це права та інтереси інших суб’єктів, що охороняються кримінальним законодавством. Ми визначили, що підозрюваний або обвинувачений повинен нести відповідальність за введення в оману суду та органів досудового розслідування, навіть якщо такий обман був використаний для захисту від підозри (або обвинувачення), щоб уникнути кримінальної відповідальності. Ключові слова: підозрюваний, обвинувачений, завідомо невинуватий, наклеп, неправдиве обвинувачення, право на захист, завідомо неправдиві показання підозрюваного/обвинуваченого.

Introduction The practice of applying the norms of criminal and criminal procedural legislation (well, and, of course, the level of development of these norms) must exclude any illegal criminal prosecution and unlawful conviction of the innocent, unreasonable application to those not involved in the commission of an act prohibited by criminal law, any other measures of criminal law influence (Smith, Morgan & Lagnardo, 2018, p. 135).

Also, there is a negative trend: by deliberately false reports of criminal offences and deceivement a court or other authorized body, using the capabilities of criminal justice authorities, individuals seek: a) concealment of the criminal offence committed by them, b) unjustified release of relatives or acquaintances from criminal responsibility, c) concealment of one's own immoral behavior, d) elimination of competitors, e) illegal release from the obligation to compensate the damage, f) unreasonable receipt of insurance payments, etc.

As a result, law enforcement agencies are distracted, wasting time and effort, incurring material costs, verifying false information, and in fact distracting themselves from investigating and combating real criminal offences.

Criminal proceedings are often instituted for deliberately false reports of criminal offences and for deliberately perjuries, investigatory actions are carried out (often not cheap), measures of procedural coercion may be unreasonably applied to persons completely not involved in the commission of such acts.

The following illegal actions cause significant damage: 1) the interests of individuals (as a result

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of possible unreasonable notification of suspicion, indictment, choice of precautionary measures, other significant violations of the rights and freedoms of the innocent); 2) normal activities of law enforcement agencies and their authority.

The above indicates the high public danger of deliberately false reports of criminal offences and deliberately perjuries (deceivement the court or other authorized body).

The qualification of these acts in practice, often involves errors, there is no unity of position and the judicial interpretation of these features. This is largely due to the imperfection of the norms of the Criminal Code of Ukraine, which provides responsibility for these actions, (deliberately false report of a crimes and deceivement the court or other authorized body), because the problems of qualification of these types of crimes are insufficiently developed in the theory of criminal law. A lot of issues are controversial: in particular, staging of a crime, defamation and self-defamation.

Scientists have already investigated the issue of criminal responsibility for deliberately perjuries of suspects / accused persons in relation to persons conducting criminal proceedings, as well as the admissibility of using deliberately perjuries of these participants in the process as a way to protect their own interests. At the same time, all problematic issues related to criminal responsibility for deliberately perjuries (including suspects, accused) have not been resolved. Many issues of this problem are debatable and need further scientific development. That is why, there is a need for an in-depth analysis of law enforcement practices related to this problem, appropriate doctrinal

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approaches and the development of scientifically sound proposals for improving criminal responsibility for deceivement the court or other authorized body.

Literature review The privilege of not giving explanations, testimony about oneself is an important attribute of a fair legal proceedings. Therefore, its correct understanding is a guarantee that the fundamental rights of the participants in the process (first of all, the suspect or accused) will be respected. However, it should be noted that the content of the privilege against selfdisclosure (as well as the exposure of close relatives, family members) is far from unambiguous. In particular, the question of the scope and boundaries of its actions are controversial, namely: whether the suspect or accused has the right to give perjuries (including in relation to another specific deliberately innocent person), protecting his self from suspicion or accusation? This issue is not clearly foreseen in the legislation, and there is no unity of opinion among researchers on it. In particular, Smith et al. (2018), Kornukov (2018), Dikarov (2010), Zheleva (2019) propose to establish criminal responsibility of the suspect, accused for giving perjuries to a certain participant in the legal proceedings. Smolkova (2016), Kashapov (2015), Adamenko (2004) are convinced that such behavior can not be considered an acceptable way of protection. But Smolyn (2012) as well as Kalinichenko (2015) directly say that such behavior is not due to his legitimate interests, contrary to the public interest.

Bahautdinov (2004), on the other hand, points out to the legitimacy of such conduct, noting that the accused does not violate any legal prohibitions, and, at the same time, draws attention to the fact that it is indirect evidence of the guilt of the suspect, accused. Another group of scholars, Kuchynska and Yavorskyi (2011), believe that the right of suspects or accused to give perjuries is linked to the need of effective secure the right to defense, the latter is incompatible with the obligation to give truthful testimony, giving deliberately perjuries does not contradict any principle of criminal procedure, from a moral point of view, any untruth must be condemned, but from a legal point of view, the accused must defend his innocence.

This scientific article is devoted to finding out which of the following approaches is the most reasonable, and justified.

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Methodology The theoretical basis of the article are scientific works on criminal law and criminal procedural law (both domestic researchers and foreign experts). The normative and legal basis of this scientific work is the Model Criminal Code for the member states of the Commonwealth of Independent States (hereinafter - the CIS), the Criminal code of Ukraine and other post-Soviet states (namely, Republic of Azerbaijan, Republic of Belarus, Republic of Armenia, Georgia, Republic of Estonia, Republic of Moldova, Russian Federation, Republic of Kazakhstan, the Kyrgyz Republic, Republic of Latvia, Republic of Tajikistan), criminal codes and other normative acts of the Anglo-Saxon and RomanoGermanic systems of law, in particular: United States of America, Republic of Slovenia, Slovak Republic, Kingdom of Sweden, Swiss Confederation, Principality of Liechtenstein, Hungary, Kingdom of Denmark, Kingdom of Spain, Republic of Poland, Republic of Croatia, Republic of Korea, Criminal Procedural Code of Ukraine, Constitution of Ukraine. In addition, the relevant case law of the European Court of Human Rights (ECR), and decisions of the Supreme Courts of individual countries on the analyzed issue has been analyzed. A set of general scientific, special scientific and philosophical methods of scientific knowledge has been used while preparing the scientific article, in particular dialectical - to understand the problem of research, its structuring and stepby-step cognition, historical - to study the development of legislation on criminal responsibility for certain crimes against justice, comparative - to clarify the approaches to the criminalization of these acts in the laws of different countries, dogmatic (formal-logical) for the analysis of legal constructions of separate bodies of the crimes provided by section XVIII of the Special part of Criminal Code of Ukraine for the purpose of revealing of existing lacks and formation of the offers directed on their overcoming, system-structural analysis - to study the relationship of the analyzed criminal law provisions with other norms and institutions of substantive and procedural criminal law, modeling - to construct models of criminal law prohibitions that can be used to improve criminal and criminal procedural law. At the same time, all methods of scientific research has been used in conjunction, which contributed to the objectivity, comprehensiveness and completeness of this scientific research.

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244 Discussion and results In practice, there are many situations in which the suspect or accused, denying his own guilt in committing the crime charged against him, defames other specific persons. The reasons for this behavior can be different: 1) the desire to avoid criminal responsibility, 2) to ensure that the sentence imposed on him is milder, 3) to take revenge on others, etc.

The consequence of such actions may be: further unreasonable suspicion (accusation), and, possibly, even the conviction of not guilty person of a criminal offence.

Two radically opposite positions were expressed among scientists regarding the possibility of bringing a suspect, accused to criminal responsibility for these actions.

Proponents of the first position Kuchynska and Yavorskyi (2011) are convinced that the suspect or accused is not liable for deceivement of a court or body conducting the pre-trial investigation, because defame of the innocent belongs to the method of protection not prohibited by criminal legislation (p. 22-23), this is one of the manifestations of freedom from self-disclosure.

(Law No. 4651-VI, 2013, art. 7, 18) The main argument of Kuchynska and Yavorskyi (2011) consists in that suspect or accused are not mentioned as a subjects of a crime which is foreseen in the art. 384 of the Criminal code of Ukraine, “deceivement a court or other authorized body”. A witness and victim are among the special subjects of this crime (which consists in giving deliberately false testimony). (p. 23) It should be noted that a similar approach to solving this issue is demonstrated by the developers of the Draft of the new Criminal Code of Ukraine (n.d., art. 7.5.10.) and legislators of almost all countries of the CIS (in particular it is foreseen in the art. 297 of the Law No. 787-IQ (1999), art. 401 of the Law of the Republic of Belarus No. 285-3 (1999), art. 338 of the Law of the Republic of Armenia No. 3P-528 (2003), art. 307 of the Law No. 63-F3 (1996), art. 420 of the Law of the Republic of Kazakhstan No. 226V (2014), art. 345 of the Criminal code of the Law of the Kyrgyz Republic No. 19 (2017), art.

312 of the Law of the Republic of Moldova No. 985 (2002), art. 351 of the Law of the Republic of Tajikistan No. 684 (1998), art. 175 of the Law of Estonia No. L-60500 (2001), art. 238 of the Law of the Republic of Uzbekistan No. 2012-XII (1994). Apparently, they adopted the provisions

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of the Law No. 7-5 (1996), in which suspect, accused is not foreseen as s subject of the crime, deceivement a court or other authorized body (art. 329).

According to Bahautdinov (2004), the law does not explicitly prohibit the accused from defending himself by accusing other people of committing a crime incriminated against him.

The scholar argues that only when the law prohibits these actions it can be alleged that this participant is illegally protected (p. 127).

These considerations have been reasonably criticized. After all, the testimony of the accused, which contains a knowingly false denunciation, is such a piece of evidence that under the unfavorable outcome of various circumstances can play a decisive role in sentencing a person not involved in the crime (Smolkova, 2016, p. 6), (Kashapov, 2015, pp. 54-58), (Smolyn, 2012, pp.

27-28), (Kalinichenko, 2015, pp. 77-78), (Zheleva, 2019, pp. 70-74), (Kornukov, 2018, pp.

172-173).

The Supreme Court of the RSFSR states that if the accused reports knowingly false testimony against others, claiming, for example, that he did not commit the crime, pointing to another specific person as a criminal or underestimating his own role in committing a crime by slandering the accomplices, his actions should be considered as a perfectly acceptable way of protection. If the accused gives knowingly false testimony, going beyond the charges against him, he is liable for knowingly false reporting of a crime. (Simonov case, 1991) The Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation was guided by the same considerations in Neznamov case (1997).

Thus, the logic of the supporters of the first of these positions is as follows: since the law does not prohibit defamation of a knowingly innocent suspect (accused), this participant in the process may resort to defaming a particular person for personal protection. The authors of the article strongly disagree with this approach; on the contrary, they completely share the opposite point of view.

And this other position comes down to the fact that the suspect / accused should be responsible for misleading the court and pre-trial investigation bodies (of course, de lege ferenda in the case of appropriate changes to Article 384 of the Criminal Code of Ukraine) - even if the purpose of such deception was protection against

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suspicion (or accusation), avoidance of criminal liability.

There are plenty of followers of this second approach. For example, some researchers are convinced (and the authors of the article completely agree with) that slandering another person is a manifestation of an illegal need of the suspect / accused to avoid responsibility; they consider it illegal for the accused to seek to use justice for slander, to convict a knowingly innocent person in retaliation for lawful acts (Adamenko, 2004, p. 32); and propose to deprive the suspect / accused of the rights he normally uses to satisfy his interests contrary to the law, indicating, inter alia, the right of the accused to defame the innocent. Proponents of this position point out that in the case of unlawful remedies involving knowingly false accusations of another person, the accused should be prosecuted because: a) the right to defense is neither absolute nor unlimited; b) its implementation should not restrict the rights of the other people (Dikarov, 2010, p. 59).

The authors of the article agree with the above position and believe that the unlimited possibility of protecting one's own interests by slandering others is unacceptable; the suspect / accused does not and cannot in principle have the right to defame the innocent; slandering the innocent is a manifestation of an illegal method of defense.

At the same time, the authors of the article defend the position according to which the composition of the misleading court or other authorized body should not be extended to any attempts of the perpetrator to avoid criminal liability. What is decisive here is the absence of slander of a particular person in the commission of the criminal offense that was incriminated to the suspect /accused.

Switzerland No. RS 311.0 (1937), §112 of the Law of the Principality of Liechtenstein No. 1988-037 (2011), Article 268 of the Law of Hungary No. Act C (2012), §281 of the Law of the Kingdom of Denmark No. 909 (2005), Article 304 of the Law of the Republic of Croatia No. 71-05-03/1-11-2 (2011), Article 164 of the Law of Germany No. L-51220 (1998), Article 456 of the Law of the Kingdom of Spain No. 10-1995 (1995), Article 234 of the Law of the Republic of Poland No. 88.553 (1997) etc.

As it was already mentioned, some supporters of the approach according to which the suspect / accused has the right to lie about another person with impunity refer to the implementation of this participant's process of freedom from selfdisclosure as an argument in favor of such a position. In this regard, it should be noted that the Law No. 4651-VI (2013) among the principles of criminal proceedings determines, in particular, freedom from self-disclosure and the right not to testify against close relatives and family members (paragraph 1, part 1 of Article 7).

The content of a certain procedural freedom is determined, in particular, by the following procedural guarantees: 



 By the way, this is the approach advocated by the authors of a number of states, believing that there is no reason to give the suspect, the accused an unjustified opportunity to lie with impunity about a knowingly innocent person (even if such behavior is a way to avert suspicion / accusation).

Relevant acts are recognized as criminally punishable acts, for example, in Article 370 of the Law of Georgia No. 2287 (1999), Article 300 of the Law of Latvia No. L-56383 (1998), Article 156 of the Law of Korea No. 293 (1953), Article 283 of the Law of the Republic of Slovenia No. KZ-1 (2008), Art. 345 of the Law of the Slovak Republic No. 300-2005 (2005), Article 5, Section 15 of the Law of Sweden No. SFS1962:700 (1962), Article 303 of the Law of

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no person can be forced to admit his guilt in committing a criminal offense or forced to give explanations, testimonies that may be grounds for suspicion, accusation of committing a criminal offense by him or his close relatives or family members (Law No. 4651-VI, 2013, s. 1, 3 Art.18); each person has the right not to say anything about the suspicion or accusation against him, at any time to refuse to answer questions, as well as to be immediately notified of these rights (Law No. 4651-VI, 2013, p. 2 Art. 18. s. 4, 5 p.3 Art.42); the absence of criminal liability of the suspect, accused of knowingly false testimony, in contrast to the victim and the witness (Law No. 4651-VI, 2013, p. 9 Art. 224).

However, the question then arises as to whether there is unlimited freedom from self-disclosure and exposure of close relatives and family members. Namely: is it always lawful to give knowingly false testimony by suspects, accused.

This issue seems to require a more careful approach.

At first glance, as already noted, the argument in favor of the right of the suspect, accused of "lawful lying" is Article 384 of the Law No.

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246 2341-III (2001), which establishes liability for misleading the court or other authorized body.

Thus, Part 1 of this article, in particular, points to the knowingly false testimony of only the witness and the victim. That is, the subject of a criminal offense in this form (knowingly false testimony) is a special, exclusively a witness or a victim.

Thus, based on the principle "everything that is not forbidden is allowed", the "lie" of the suspect, the accused is allowed. Finally, the right to false testimony of a suspect or accused actually derives from the provisions of the Law No. 4651VI (2013), which provides only the obligation of a witness and a victim to give true testimony.

the Law No. 2341-III (2001) alternatively, along with the knowingly false testimony of a witness, a victim, explicitly states about the submission of knowingly unreliable or forged evidence. This form of misleading court or other authorized body is relatively new. At the same time, the legislator does not restrict the subjects of committing such a socially dangerous act within the criminal offense by indicating a special subject, such as a witness or a victim. That is, the suspect, the accused are also the subjects of a criminal offense in the form of submission of knowingly unreliable or forged evidence (material evidence and / or documents).

However, considering Art. 384 of the Law No. 2341-III (2001), which establishes liability for knowingly false testimony of only a witness and a victim as an expression of absolute freedom of a suspect, accused of self-disclosure or exposure of close relatives and family members, seems too hasty and unsystematic conclusion.

As for the knowingly false testimony of the suspect, the accused, despite the fact that such participants in the process are not the subjects of a criminal offense under Art. 384 of the Law No. 2341-III (2001), but they may be the subjects of other criminal offenses, the objective side of which is the submission of knowingly false information or concealment of relevant information provided by the criminal law of Ukraine as independent components, such as:

First of all, it is worth paying attention to the terminology used in the criminal procedure legislation of Ukraine, namely: it indicates freedom from self-disclosure and the right not to testify against close relatives and family members (Law No. 4651-VI, 2013, s. 1 part 1 of Art. 18).

Thus, in fact, freedom from self-disclosure and exposure of close relatives and family members (Law No. 4651-VI, 2013, art. 18) means the right not to testify against oneself or such persons, even if the person gives false testimony.

However, this does not mean that a person has the right to testify falsely against others or to provide false information, the responsibility for which is determined by special norms of the criminal law of Ukraine, as a way to protect oneself or close relatives and family members from exposure.





That is, the "procedural lie" of the suspect or accused is in fact "permissible" in relation to himself or the relevant close relatives and family members, but may not violate other relations protected by law.

At the same time, the criminal law of Ukraine has a whole “bunch” of norms that can be applied in case a person submits false evidence (testimony, material, written) in order to protect himself from self-disclosure or exposure of close relatives and family members.

With regard to the submission of false material and /or written evidence, Part 1 of Article 384 of

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



knowingly false report of a criminal offense (Law No. 2341-III (2001) during the testimony of suspects, accused - when such information does not relate to the investigated criminal proceedings and persons who may be involved in it. After all, freedom from self-disclosure or exposure of close relatives and family members does not mean the possibility of false exposure of others. failure to provide help to a person, who is in a condition dangerous to life, where such help could have been provided, or failure to inform appropriate institutions or persons of this person's condition, where this has caused grievous bodily injuries (Law No. 2341-III (2001), art. 136). For example, when such non-disclosure during interrogation is a form of protection against exposure (for example, a suspect /accused is aware that such a person in a life-threatening condition may provide information that would harm the suspect, accused or his close relatives, family members). concealment of data on a person's fate or whereabouts in case of enforced disappearance (Law No. 2341-III (2001), art. 146-1). For example, for the same reasons as in the above case. concealment or intentional distortion of information about the ecological condition or morbidity of the population (Law No. 2341-III (2001), art. 238) during

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

interrogation with the parallel disclosure of such information to the population by the person concerned. knowingly false information about the threat to public safety, destruction or damage to property (Law No. 2341-III (2001), art. 259) in order to delay the pre-trial investigation, "delay" the interrogation to have time to hide the traces of the crime, etc.

Even such a cursory review of procedural and substantive criminal law shows that the freedom of self-incrimination or exposure of close relatives and family members in criminal proceedings has certain limits. They are the rights and interests of other subjects protected by criminal law. And the absence of responsibility for the knowingly false testimony of a suspect / accused in Article 384 of the Law No. 2341-III (2001) "Misleading a court or other authorized body" does not mean impunity for such acts.

Liability should follow other special rules, which provide for liability for so-called verbal criminal offenses, which consist in the reporting of false information, its distortion.

It is worth noting, that under the current legal regulation in the relevant field of law, when the lie of the suspect, accused in the testimony is, in fact, unpunished (of course, except the above mentioned rare simulated cases), unpunished are also actions of unfair lawyers who persuade suspects, accused - their clients, to refute the suspicions brought against them / or the accusations by slandering a knowingly innocent person. After all, the incitement to a certain act is recognized as a crime, when the act to which they are incited is a crime as well. Therefore, the responsibility for the lawyer’s actions aimed at assisting a suspect / accused in slandering a knowingly innocent person in committing an offense in criminal proceedings against his client, is worth establishing at the legislative level, as well as providing an effective mechanism for bringing the guilty person to justice.

In the United States, giving false testimony before a court or grand jury is considered a crime punishable by a fine or imprisonment for a term not exceeding 5 years or both, as well as the subordination of another person of perjury.

Thus, under § 1623 of Section 18 of the U.S. Code of Laws a defendant who knowingly gave false testimony or used any document, knowing the same to contain any false material declaration, before the court or grand jury, is liable under this paragraph. In addition, under § 1622 of this section the inciting of another

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person to give false testimony is criminalized as well. (Law No. 772, 1948).

Under the Model Rules of Professional Conduct (ABA, 1983), “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law” (rule 1.2.d).

Besides, Rule 4.1. reads “in the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client”, unless such disclosure is prohibited by the confidentiality rule.

So, if the lawyer knows that the client is going to give false testimony under oath before the court in order to avoid criminal liability, he shall explain to the client all legal consequences of his actions, so that he “weighed” everything and chose a way of law-abiding behavior. When the client's position has not changed, and he still decides to give false testimony, the lawyer shall not take part in the interrogation of the defendant under oath, unless he will be accused of subordination of perjury.

In particular, the lawyer's conduct was found to be ethical by decision of the Supreme Court of the United States. Mr. Whiteside was charged with murder. During the discussion of the defense strategy with the lawyer, the accused stated that he may have seen a metal object (most likely a gun) in the hands of the victim, although this statement contradicted the testimony he had given earlier. The lawyer before the court explicitly stated that he had an ethical obligation to report about false testimony to the court. After all, Mr. Whiteside was found guilty of the crime he was charged with. Mr. Whiteside subsequently instituted proceedings for a violation of his right under the Sixth Amendment to the US Constitution as regards the right to effective defense. But, the US Supreme Court found the lawfulness of the lawyer's conduct and noted that the right to defense does not include the right to have a lawyer who will facilitate the giving of false testimony; on the contrary, a lawyer representing a client in criminal proceedings should act in compliance with the law, and such lawful conduct have to conform the goal of the trial - the search for truth. (Nix v.

Whiteside, 1986).

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248 Item 4.4 of the General Code of Rules for Lawyers of the European Community defines as well that a lawyer must in no case provide the court with manifestly inaccurate or false information. (Law No. 994_343, 1988).

This approach to determine the ethical component of a lawyer's professional activity seems very appropriate. Due to the fact that the lawyer's relationship with the client guarantees the principle of confidentiality, it is impossible to verify whether the lawyer adheres to the principle of the rule of law and legality in exercising of professional obligations, while there is no effective mechanism of checks and balances.

That is why Rule 1.6. The Model Rules of Professional Conduct (ABA, 1983), defines not only the need to follow the confidentiality rule, but the exceptions under which a lawyer may disclose information constituting a lawyer's secret to the extent necessary to prevent adverse consequences as well.

The Rules of Lawyer’s Ethics (Legal act No. n0001891-17, 2017), determines that it is strictly forbidden for a lawyer to use illegal and unethical means in fulfilling a client's orders, in particular, to incite witnesses to give knowingly false testimony, to use illegal methods of pressure on the opposite party or witnesses (threats, blackmail, etc.), to use their personal links (or in some cases - its special status) to influence directly or indirectly on the court or other body before which it represents or defend the clients interests, use information obtained from a former client, whose confidentiality is protected by law, use other means contrary to a current law or these Rules (art. 25).

A lawyer may be subject to disciplinary proceedings in case of violation of the prohibitions set forth in this article. However, the harm done to a knowingly innocent person (especially if he is knowingly falsely accused of committing a serious or especially serious crime) as a result of promoting unfair defense tactics is disproportionately huge and does not correspond to the punishment a lawyer is subject to if his guilt is proven.

In addition, it is almost impossible to establish a violation of Article 25 of these rules by a lawyer, since all documents that are necessary to prove the violation have the status of lawyer’s secret.

Article 10 of the Rules of Lawyer’s Ethics (Legal act No. n0001891-17, 2017) provides that documents and information may lose the status of lawyer’s secret with the written consent of the client. However, even with the written consent of

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the client to disclose information constituting a lawyer's secret, a lawyer, in order to protect his professional rights and guarantees, has the right to continue to keep information and documents in the status of a lawyer's secret. In this case, the lawyer is not responsible for the refusal of any persons, bodies and institutions to disclose legal secrecy and provide access to it. It means that, the lawyer may, but is not obliged to, disclose the lawyer's secret.

In view of the above, it is expedient to introduce exceptions to the rule of confidentiality concerning cases of disclosure of lawyer’s secret, as well as to exclude the rule establishing a lawyer’s right to refuse to disclose information constituting lawyer’s secret with the written consent of such person.

Analyzing of the relevant problem, it should be noted that both the Law No. 254k/96-VR (1996), p.6 art.55) and the domestic CPC (2012, p.1 art. 22) do not foresee any means of protection.

The freedom of a suspect / accused to give any evidence in criminal proceedings without the risk of being prosecuted for misleading a court or other authorized body should be subject to statutory restrictions on cases of knowingly giving false testimony against other specific persons on crimes (or other socially dangerous acts) and misdemeanors that they did not actually commit.

In the judgment of the European Court of Human Rights (the case law of which is a source of law in Ukraine as well), the Strasbourg Court stated that "the possibility for the accused to be further prosecuted for the statement on his defense should not be considered a violation of his rights under paragraph 3 "c" of Article 6 of the European Convention on Protection of Human Rights and Fundamental Freedoms. It would be an exaggeration to believe that the basic ground for the right of persons accused of a criminal offense to defend themselves is the idea that they should not be prosecuted if defending, they deliberately arouse false suspicions of conduct to be punished, concerning a witness or any other person involved in criminal proceedings”.

(Brandstetter v. Austria, 1991, p. 32).

Thus, the European Court of Human Rights also states (as well as the authors of this article) that the use of suspects / accused slanders of knowingly innocent persons (even for their own defense) does not exclude the prosecution of such a suspect, accused for these actions - of course, if such liability is provided at the legislative level.

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Conclusions The above mentioned gives grounds for the following conclusions: 1) it is substantiated that the behavior of the suspect, accused, which is manifested in slandering of a knowingly innocent person, does not constitute the right to freedom from self-disclosure; 2) it is proved that both freedom from selfdisclosure and the right to defense in criminal proceedings must have certain limits, in particular, it is rights and interests of other subjects protected by criminal law; 3) it is stated that the suspect or accused should be liable for misleading the court and pretrial investigation bodies even if such deception was used to protect against the suspicion (or accusation), to avoid criminal liability; it is considered expedient to borrow the experience of those states whose legislation provides for the criminal liability of a suspect, accused for slandering a knowingly innocent person; 4) it is noted that there is no responsibility for knowingly false testimony of the suspect, accused in Article 384 of the Law No. 2341III (2001) "Misleading of a court or other authorized body". That does not mean absolute impunity for such acts. The responsibility for these actions should come under other special rules, which provide liability for so-called verbal criminal offenses, which are manifested in giving of false information or its distortion, if there are appropriate grounds.

5) the importance of establishing the responsibility of a lawyer for assisting his client - a suspect / accused in slandering of a specific knowingly innocent person in criminal proceedings, at the legislative level, as well as providing an effective mechanism for bringing such a lawyer to justice, is proved; 6) it is suggested to introduce exceptions to the rule of lawyer’s confidentiality, concerning cases of disclosure of lawyer’s secret, as well as to exclude from the law rules that allow a lawyer to refuse to disclose information constituting lawyer’s secret despite the client’s written consent.

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Verkhovna Rada of the Republic of Uzbekistan, 1994, № 1. Retrieved from https://lex.uz/ru/m/acts/111457 Law No. 63-F3. Criminal Code. June 13, 1996.

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y1wcmVsaW0tdGl0bGUxOC1zZWN0aW9 uMjA3MQ%3D%3D%7C%7C%7C0%7Cfa lse%7Cprelim&edition=prelim Neznamov case, No. 1-Д97-16 Supreme Court of the Russian Federation (1997). Retrieved from http://www.supcourt.ru/files/11571/ Nix v. Whiteside, 84-1321, Alderson Reporting Company, Inc, Washington, D. C., U.S. 59, 1986.

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Retrieved from https://www.sciencedirect.com/science/articl e/pii/S1355030617301144 Smolkova, I. V. (2016). Whether the accused is criminally liable for defamation of a knowingly innocent person? Bulletin of the East Siberian Institute of the Ministry of Internal Affairs of Russia, 3. Retrieved from https://cyberleninka.ru/article/n/dolzhen-liobvinyaemyy-nesti-ugolovnuyuotvetstvennost-za-ogovor-zavedomonevinovnogo-litsa Smolyn, S. V. (2012). Liability for knowingly false denunciation (dissertation for a scientific degree legal science candidate), Institute of the Ministry of the Interior of the Russian Federation, Moskov, Russia: Retrieved from https://static.freereferats.ru/_avtoreferats/010 05434636.pdf Zheleva, O. V. (2019). Conviction of a knowingly innocent person by the accused as a way to abuse the subjective right. Russian Journal of Criminal Law, 13, 70-74.

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DOI: https://doi.org/10.34069/AI/2021.44.08.24 How to Cite: Hobela, V., Blikhar, M., Syrovackyi, V., Maraieva, U., & Dudiuk, V. (2021). Economic and legal measures for ensuring the economy greening in post-pandemic period. Amazonia Investiga, 10(44), 252-260. https://doi.org/10.34069/AI/2021.44.08.24

Economic and legal measures for ensuring the economy greening in post-pandemic period ЕКОНОМІКО-ПРАВОВІ ЗАХОДИ ЗАБЕЗПЕЧЕННЯ ЕКОЛОГІЗАЦІЇ ЕКОНОМІКИ У ПОСТ ПАНДЕМІЧНИЙ ПЕРІОД Received: July 13, 2021

Accepted: September 15, 2021

Written by: Hobela Volodymyr97 https://orcid.org/0000-0001-7438-2329 Blikhar Mariia98 https://orcid.org/0000-0003-2974-0419 Syrovackyi Valerij99 https://orcid.org/0000-0001-8465-9942 Maraieva Uliana100 https://orcid.org/0000-0002-2600-8532 Dudiuk Volodymyr101 https://orcid.org/0000-0003-4649-4280 Abstract

Анотація

The purpose of the study was to develop economic and legal measures to create a green economy model by assessing the effectiveness of greening tools. To achieve the goal it was necessary to solve several problems. Firstly, to evaluate the effectiveness of greening tools using expert analysis techniques. Secondly, to develop measures to ensure the economy greening through the use of the most effective greening tools. Theoretical basis. The economy greening is extremely important, especially in the postpandemic period - a period of intensive economic recovery, which might contribute to the strengthening of environmental problems.

Accordingly, the study aims to identify the most effective tools for greening to develop measures for the ecologigaly healthy economic recovery in the post-pandemic period. Scientific novelty.

The effectiveness of greening tools was evaluated and several economic and legal measures were developed, which will contribute to the economy greening intensification.

Метою дослідження є розробка економікоправових заходів для створення моделі зеленої економіки за допомогою оцінки ефективності інструментів екологізації. Для досягнення мети дослідження необхідно вирішити кілька завдань. По-перше, оцінити ефективність інструментів екологізації за допомогою методики експертного аналізу. По-друге, розробити заходи щодо забезпечення екологізації економіки шляхом використання найефективніших інструментів екологізації. Теоретичний базис. Екологізація економіки для формування моделі зеленої економіки є вкрай важливою, особливо у пост пандемічний період – період інтенсивного відновлення економіки, що може сприяти посиленню екологічних проблем. Відповідно, дослідження спрямоване на визначення найефективніших інструментів екологізації для розробки ефективних заходів екологізації економіки у пост пандемічний період. Наукова новизна. У дослідженні здійснено оцінку ефективності інструментів

97

Candidate of Economic Sciences, Associate Professor of the Department of Management, of Institute of Management, Psychology and Security of Lviv State University of Internal Affairs, Ukraine.

98 Doctor of Juridical Sciences, Candidate of Economic Sciences, Docent, Professor at the Department of Administrative and Informational Law, of Institute of Jurisprudence, Psychology and Innovative Education, Lviv National University Lviv Polytechnic, Ukraine.

99 Doctor of Juridical Sciences, Advocate of Kyiv, Ukraine.

100 Candidate of Philosophy Sciences, Associate Professor of the Department of Philosophy, of Uzhhorod National University, Ukraine.

101 Candidate of Economic Sciences, Docent, Associate Professor of the Organization Management and administration Department, Institute of Ecological Economics and Management, National Forestry University of Ukraine, Ukraine.

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Conclusions. The study proposed to intensify the economy greening by using the most effective greening tools whose effectiveness was assessed by using expert analysis. The most effective greening tools were identified: environmental taxes, quotas, environmental funds, environmental audit, and environmental certification. Based on the results of the study, several economic and legal measures for economy greening in the post-pandemic period were developed.

Key words: greening, green economy, environmental issues, post-pandemic period, greening tools, Kendall methodology.

екологізації та запропоновано економікоправові звходи, що сприятимуть інтенсифікації екологізації. Висновки. У дослідженні запропоновано інтенсифікувати процеси екологізації економіки шляхом використання найбільш ефективних інструментів екологізації, що встановлені в результаті експертного опитування. Здійснено оцінку ефективності інструментів екологізації за допомогою експертного аналізу та встановлено найбільш ефективні інструменти екологізації: екологічні податки, квоти, екологічні фонди, екологічний аудит та екологічна сертифікація. На основі результатів дослідження розроблено низку економіко-правових заходів щодо екологізації економіки у пост пандемічний період. Ключові слова: екологізація, зелена економіка, екологічні проблеми, постпандемічний період, інструменти екологізації, методика Кендалла.

Introduction The modern economy is marked by intensive use of natural resources, significant reduction of them, irrational natural resource management, which, in turn, causes a crisis in the environment and a notable number of environmental disasters.

Furthermore, globalization also contributes to global environmental problems. At the same time, a significant part of the world's population is below the poverty line, experiencing shortages in food and drinking water. There is a significant level of population stratification. The evergrowing population and consumerism are the driving forces that stimulate the growth of production and consumption of various goods.

However, such activities cause several environmental problems. The current state of the environment requires an immediate reduction in the number of harmful substances that enter ecosystems. As a result, a situation is formed from which it is difficult to find a way out. All this makes the economy greening relevant.

Several researchers have proposed a new model of the economy, the focus of which is on the environment, and the economic system is dependent on it. That is, the economic system is part of the natural environment and objectively exists in it. In this case, the question of preserving the environment and the normal conditions for the functioning of future generations determines the future conditions of existence of the actual economic system as its component. Thus, the marginal deviations of the state of the natural system directly affect the state of the economic

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system in the short or long term. Excessive use of natural resources will cause systemic changes in the world economy and will have tangible negative consequences for future generations.

The spread of such ideas in scientific circles is called the concept of "green economy". It can be argued that there is an urgent need to form a modern concept of social development, which will provide not only economic development but a safe environment. That is, it will be aimed at ensuring a balance between economic and environmental systems. Achieving this effect is possible through the maximum convergence and interpenetration of economic and environmental policies. As a result, the economic system will safely coexist with the ecological system. The most effective way to achieve this state is the greening of all economic processes.

This suggests that, to ensure the greening of the economy and transition to the "green economy" it is necessary to identify the most effective tools for greening the economy and develop ways to implement them in practice.

Also, the purpose of the study is to develop measures for establishing the green economy model based on the results of the greening tools efficiency estimation. To fulfill the purpose of the study several issues have to be solved. Firstly, to estimate the greening tool's efficiency by experts analysis. To do this we require to generate an expert group, find out the level of experts consensus by using the Kendall

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254 methodology and conduct the expert analysis.

Secondly, to develop measures to ensure a green economy through the use of the most effective greening tools.

Methodology The paper uses several general scientific research methods to develop economic and legal measures to green the economy in the post-pandemic period. In particular, the method of system analysis and synthesis to confirm the hypothesis of environmental degradation after crises caused by the rapid economic recovery expected after the COVID-19 pandemic. Thus, this area of research is updated. Using the method of analytical forecasting and induction, three probable scenarios of economic recovery and the corresponding state of the environment are identified. Using the method of expert survey, the analysis of the effectiveness of greening tools.

Using the method of Kendall, the level of experts agreement was established. Based on the results of an expert survey and using a comparative analytical method, the reason for the inefficiency of environmental taxation was identified - too low tax rates. Based on the results of the survey, several economic and legal measures have been developed to green the economy by using the most effective greening tools.

Theoretical framework or Literature Review A characteristic feature of the modern economy is several crises and a significant number of global environmental issues. The need for economy greening and the transition to the green economy has become an urgent area of research.

Representatives of the scientific community studied the problems of forming a model of the green economy (Pearce, 1990; Affolderbach, 2020) and building an environmentally healthy model of world economic development (Daly, & Farley, 2004) studied the problems of the ecological economy and ways of economic transformation. There are some researches (Chmyr & Zakharkevych, 2013), and (Drebot, 2001) devoted to the green economy and ecologically safe sustainable development. A relevant area of research for several scientists was considering ways to implement the principles of green economy as a tool for sustainable learning (Schulz & Affolderbach, 2015), and the role of sustainable learning in ensuring the economy greening (Tarnawska, 2013; Kumar, 2017; Gormally, 2019) and studied innovations and environmental innovations as tools for shaping the green economy. Also, the ways and means of greening cities and

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agglomerations were studied (Juhola, 2018). The studies are devoted to the general problems of sustainable development and the formation of a green economy (Dymitrow & Halfacree, 2018).

The scholars examined the nexus between globalization, energy consumption, and economic growth to promote the green economy and environment. Their study has identified the link between GDP growth and carbon emission and found bidirectional causality between economic growth and energy use (Ascensao et al., 2018). Other scholars analyzed greening lending as a tool for green economy and sustainable development promotion (Yuan & Gallagher, 2018). Moreover, the analysis of innovation stages, knowledge spillover, and green economy development was conducted.

This study proposed a model to investigate the effects between the different innovation stages and the green economy (Zhao, Jiang, & Wang, (2019)). The scholars analyzed the impact of financial development and globalization on the environment and determined the indicators for assessing this impact (Saud, Chen, Haseeb, & Sumayya 2020). The research of globalization affects the green economy and environment and was conducted. It determined the nexus between energy consumption, carbon dioxide emissions, and economic growth (Khalid et al., 2021).

Furthermore, the impact of foreign direct investment on CO2 emissions in emerging countries was examined (Xie, Wang & Cong, 2020). The scientists also studied the implications of financial regulations on a sustainable green economy. They concluded that financial regulations are significant for achieving a sustainable green economy (Odugbesan et al., (2021). The pros and cons, and main bottlenecks of green growth were determined by using a multidimensional approach (Demiral & Demiral, 2021). The scholars used the difference in differences (DID) method to evaluate the mean causal effects of a treatment on an outcome of the determinants of scaling up green financing and climate change mitigation in different countries (Nawaz et al, 2021).

However, despite the significant number of scientific papers remained insufficiently studied.

Accordingly, this study was aimed at determining the effectiveness of economy greening tools, and based on this proposals for intensifying economy greening to transit to a green economy were developed.

The object is to develop measures for establishing the green economy model based on the results of the greening tools efficiency estimation.

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Results and discussions

3.

Despite the predicted severe consequences of the COVID-19 pandemic for the world economy, we should remark that quarantine restrictions have to lead to improved environmental health.

However, the improvement of environmental health is occurring while the crisis in the world economy and the general recession. Accordingly, the downward trend in pollution will not last long, as the gradual end of quarantine restrictions will lead to increased economic activity and lead to the opposite consequences - increased emissions and environmental pollution due to increased industrial production.

We should work on creating a strategy for economic recovery in an environmentally healthy way. This is the way of economy greening and transition to a green economy. That is why there is a need to study the effectiveness of greening tools, which should be used to achieve a positive economic and environmental effect. In the process of research, the effectiveness of the greening tools was evaluated.

It is necessary to decide which way to restore the economy to preserve the environment. It is essential to take into account the previous experience of post-crisis economic recovery in 2008-2009 when the level of pollution exceeded the pre-crisis level. The reason for this was a significant increase in carbon consumption for economic recovery and, as a result, a significant increase in environmental pollution and greenhouse gas emissions. Accordingly, to determine the ways of economic recovery, this experience should be taken into account and efforts should be directed to economic recovery and economy greening. In other words to reorient production and consumption to low-carbon technologies, intensify the use of renewable resources and energy, introduce the ideas of recycling and a Circular economy, promote the development of Bionics, Industrial Ecology, and environmental design.

The predicted consequences of the COVID-19 pandemic for the economic system and environment are as follows (Hobela, 2021 a): 1.

2.

Economic and environmental crisis.

Economic recovery may exacerbate the crisis. We can also assume that after the end of the pandemic, people will realize that solving climate problems and global environmental problems are too "expensive" pleasure, as it requires sacrificing a habitual and comfortable lifestyle. The consequence of this may be a total disregard for the ideas of the ecological economy and the final industrialization, which will accelerate the ecological catastrophe on a global scale.

Economic recovery and environmental crisis. Active stimulation of industrial recovery will lead to an increase in anthropogenic impact on nature. In this course of events, the onset of new cataclysms is only a matter of time.

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Economic recovery and improvement of environmental health. To accomplish this it is vital to invest in the economy on the principles of environmentally healthy development and economy greening.

To implement this approach, the following algorithm was used: 1.

2.

3.

4.

5.

Formation of the expert group. Leading specialists in the field of ecological economics, natural resources management, public authorities, and practical specialists were selected to the group.

Determining the degree of agreement of experts' opinions by calculating the concordance coefficient and assessing the validity of the survey results.

Drawing up control questions and formation of expert letters of estimation.

Conducting an expert survey and processing the survey results.

Development of relevant conclusions and generalization of results.

To determine the compatibility of the members of the expert group opinion Kendall's method was used, which provides for the calculation of the overall rank correlation coefficient – the concordance coefficient. This methodology involves determining the degree of consistency of expert opinion in all areas, factors, and parameters, as well as the formation of conclusions about the level of consistency of expert opinions. Bringing this rate up to 1.0 means a greater degree of agreement between experts, and vice versa. The limit value of the concordance coefficient is 0.5. That is, the value of the indicator is more than 0.5 – opinions are agreed, less than 0.5 – opinions are not agreed.

The concordance coefficient is calculated by the formula: W=

12×∑d2 m2 (n3 −n)

,

were: W – concordance coefficient; ISSN 2322 - 6307

(1)

255

256 S – the sum of the squares of the deviations; m – number of experts; n – number of parameters. 𝑑 2 = ∑14(𝑆 − 𝑆𝐴𝑉𝐸𝑅 )2 ,

Generally, to calculate the coefficient the following indicators were calculated: S – the total rank of the parameter; d – deviation the sum of ranks from the average sum of ranks; d2 – square deviation; ∑d2 – the sum of the squares deviations.

(2)

were: d2 – square deviation; S – the total rank of the object; S aver – the average rank of the parameter; Table 1.

Estimated data for the Concordance coefficient.

Expert Parameter 1 Parameter 2 Parameter 3 Parameter 4 ∑ d2 Source: Own authorship.

1

2

3

4

5

6

7

8

9

10

S

4 2 1 3

3 4 2 1

4 2 3 1

4 3 1 2

4 3 2 1

3 4 2 1

4 3 1 2

3 4 2 1

4 3 1 2

3 2 4 1

36 30 19 15

𝑑 -11 -5 6 10

𝑑2 121 25 36 100 282

Substituting the obtained results into the formula, the concordance coefficient was calculated, it gives – 0.564. The obtained value exceeds the limit value of the concordance coefficient and certifies the validity of expert opinions. Thus, the effectiveness of greening tools was established. The results of the calculations are presented in Table 2.

Table 2.

The results of expert’s analysis. № Greening tools 1 Environmental taxes 2 Quotas 3 Environmental funds 4 Environmental audit 5 Ecological certification 6 Fines for excessive use of resources 7 Mandatory environmental information disclosure 8 Environmental monitoring 9 Accelerated amortization of environmental protection's funds 10 Environmental insurance 11 Licensing 12 Green Bonds 13 Ecological analysis of the product life cycle 14 Subsidies 15 State support of ecological production 16 Eco-pledge 17 Custom duty 18 Grants 19 Environmental indicators 20 Soft loans Source: Own authorship.

The most effective greening tools contain environmental taxes, quotas, environmental

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funds, environmental certification.

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Rating 50 46 46 43 42 40 39 36 33 32 32 30 30 30 29 29 27 26 26 25

audits,

ecological

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Based on the study of the effectiveness of greening tools, we propose to develop measures to intensify greening and transition to a green economy.

Among the principal offers we propose to consider the following:    

increase of ecological taxes; creation of the Environmental Protection Fund; introduction and use of Green Bonds; improvement of the citizen's ecological rights realization mechanism.

Firstly, the study found that environmental taxes will have a profound effect on the environment.

In addition, to transform the negative external effects into internal ones, several environmental taxes have been introduced within the framework of the Pareto compensation principle, in particular on CO2 emissions. However, these types of taxes are not as effective. We believe that the reason for this is too low a tax rate ($ 0.36 per 1 ton of CO2) compared to other industrialized countries (from $ 20 to $ 150 per 1 ton of CO2) (Hobela, 2021 a).

A study of the share of environmental taxes in the structure of tax payments of Ukraine and other developed countries, confirms our statement that environmental tax rates are unreasonable.

Accordingly, there is a need to set the environmental tax at a level that will compensate for environmental damage and encourage a reduction in the energy intensity of production.

This approach will allow balancing environmental and economic interests during the formation of the environmental tax. In particular, the increase in the size of the environmental tax in Ukraine from $ 0.02 to $ 0.36 caused a decrease in CO2 volumes and total pollution.

Thus, environmental taxes are the most effective tool for greening, and their impact on the environment remains quite significant. The analysis data show that since 2017 there has been a reduction in CO2 emissions and total pollution,

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which is certainly the reason for the increase in environmental taxes in Ukraine (Hobela, 2021 a).

Also, comparing the amount of pollution and the amount of carbon dioxide emissions, we can declare that they are reduced and increased in the number of tax revenues from environmental taxes. Note that the increase in the tax rate has led to a decrease in pollution, which is certainly a very positive aspect.

Secondly, having analyzed the current legislation and revenues to the state budget (Hobela, 2021 b), we conclude that for the most part environmental taxes do not come to this fund in full. There are also many examples of irrationality and misuse of the fund. We consider the creation of the Environmental Protection Fund as a separate legal entity that will accumulate all environmental payments to be the best solution to this problem. As mentioned above, an important aspect of ensuring greening is the obligation to inform the population about the state of the environment and the main measures taken to improve the environmental situation. This approach will contribute to the formation of the environmental behavior of consumers. With this in mind, it is recommended to create an online platform to inform the public about the use of the Environmental Protection Fund to monitor the implementation of greening measures and their financing.

Thirdly, the economy greening and the transition to renewable energy use is a widely recognized strategic direction for the development of the world community and Ukraine. However, this process is not as active as we would like. The main reason for this is the lack of funds, because greening measures, for the most part, require significant investment.

Let's analyze the share of renewable energy in Ukraine and other countries in 2014-2019 Fig. 1.

As we see, Ukraine's indicators are extremely low. That is why the use of one of the most effective tools of greening – green bonds has become relevant.

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258

Figure 1. The share of renewable energy of studied countries in 2014-2019.

Source: Own authorship.

Fourthly, an important area of intensification of greening is the improvement of some norms of domestic environmental law. At the same time, it can be concluded that the world community is deeply concerned about environmental health, which is manifested in the relevant processes of the greening of international law, EU law, and national law. In general, the priority of development is the ecological balance of forms, methods, and ways of interaction between society and nature. So, let's pay attention to certain shortcomings of domestic environmental law. Many norms are generalized and not specified (Shevchuk, Blikhar, Zabzaliuk, & Tataryn, 2020). First of all, it is necessary to improve the regulatory and legal support for greening and the formation of economic tools, which provides for improvements to the legislation. 



identify promising activities that require state support in the form of soft loans and provide a mechanism for the legal regulation of such activities; expand and detail the list of measures and activities for which it is advisable to apply economic incentives, in particular, to determine preferential tax rates, rates of accelerated depreciation of environmental funds, etc.

An important aspect of improving environmental legislation is to improve the system of implementation of legal norms relating to the protection of environmental rights of citizens. It is about removing barriers for citizens to protect their environmental rights in the judiciary and

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law enforcement agencies, to obtain timely access to information on the state and extent of environmental pollution, and so on. To do this, we recommend: 



expand the powers of the environmental auditor and the level of his responsibility for conducting a biased environmental impact assessment; establish responsibility for violating the planned indicators of environmental impact assessment depending on the level of their deviation from the actual values.

Scientific novelty The study substantiates the need to intensify the economy greening to form a model of a green economy in the post-pandemic period. The effectiveness of greening tools has been evaluated and several economic and legal measures have been developed, which will contribute to the intensification of greening through the use of the most effective greening tools in the post-pandemic period.

Conclusions The study backs up the importance of the economy greening to transit for a green economy model in the post-pandemic period. The effective use of greening tools is supposed to be the best prospect for the economy greening ensuring. The method of greening tools effectiveness assessment was proposed to determine the most effective of them. To do this an algorithm was formed, which consists of the following stages:

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formation of the expert group; determining the degree of agreement of experts' opinions by calculating the concordance coefficient and assessing the validity of the survey results; drawing up control questions and forming expert evaluation sheets; conducting an expert survey and processing the survey results; development of appropriate conclusions and summarizing the results.

Due to this method, the most effective tools for Ukraine's economy greening in the postpandemic period were identified: environmental taxes, quotas, environmental funds, environmental audit, and ecological certification.

Based on the results of the study, the main economic and legal measures for establishing the green economy model were proposed.

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from http://eco.com.ua/sites/eco.com.ua/files /lib1/konf/3vze/zb_m/t2/tom_2_s07_p_677_ 680.pdf Dymitrow, M., & Halfacree, K. (2018).

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Bulletin of Geography. Socioeconomic Series, 40(40), 7–16. doi.org/10.2478/bog-2018-0011 Gormally, A. (2019). The role of sustainability in HE and the GEES disciplines; recommendations for future practice. Journal of Geography in Higher Education, 43(4), 599–608. doi.org/10.1080/03098265.2019.1660627 Hobela, V. (2021 a). Economic and security greening: theory and practice. Lviv: LvDUVS. Recovered from http://dspace.lvduvs.edu.ua/handle/1234567 890/3757 Hobela, V. (2021 b). Improving the system of legal support for greening as a security activity.

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Odugbesan, J.A., Rjoub, H., Ifediora, C.U. et al. (2021). Do financial regulations matters for sustainable green economy: evidence from Turkey. Environmental Science and Pollution Research. doi.org/10.1007/s11356021-14645-4.

Pearce, D. (1990). Blueprint 2: Greening the world economy.

London: Earthscan Publications ltd.

Saud, S., Chen, S., Haseeb, A., & Sumayya (2020). The role of financial development and globalization in the environment: Accounting ecological footprint indicators for selected one-belt-one-road initiative countries. Journal of Cleaner Production. doi.org/10.1016/j.jclepro.2019.119518.

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260 https://www.westermann.de/anlage/4567354 /GruenesWachstum-und-alternativeWirtschaftsformen Shevchuk, V., Blikhar, V., Zabzaliuk, D., & Tataryn, N. (2020). The rule of law and inflation in the middle-income countries.

Financial and credit activities: problems of theory and practice, 2 (33), 386–399. doi.org/10.18371/fcaptp.v3i38.237453 Tarnawska, K. (2013). Eco-innovations – tools for the transition to green economy.

Economics and Management, 18, 735-743. doi.org/10.5755/j01.em.18.4.4485.

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findings from a nonlinear panel analysis.

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DOI: https://doi.org/10.34069/AI/2021.44.08.25 How to Cite: Shapoval, R.V., Orlovskyi, R., Sykal, M., & Zlyvko, S. (2021). Counteraction to offenses committed with the use of electronic payment systems: new challenges and problems. Amazonia Investiga, 10(44), 261-269. https://doi.org/10.34069/AI/2021.44.08.25

Counteraction to offenses committed with the use of electronic payment systems: new challenges and problems Протидія правопорушенням, учинених із застосуванням електронних платіжних систем: нові виклики та проблеми Received: July 30, 2021

Accepted: September 10, 2021

Written by: Roman Volodymyrovych Shapoval102 https://orcid.org/0000-0002-5716-9291 Ruslan Orlovskyi103 https://orcid.org/0000-0002-3283-3643 Maksym Sykal104 https://orcid.org/0000-0003-0334-4047 Stanislav Zlyvko105 https://orcid.org/0000-0003-2732-3144 Abstract

Анотація

Legal, organizational and technical issues of the current state of crime prevention in the field of electronic payment systems in different countries and in Ukraine are considered. The following methods were used in the article: dialectical, documentary analysis, analytical analysis of documents and observations. Identified and analyzed current trends and risks associated with the use of electronic payment systems by legal entities. Electronic payments have been found to be a progressive and convenient innovation on the one hand, which has greatly accelerated the ability of individuals to engage in day-to-day market relations, and on the other, to be unlawfully encroached upon and systematically improved by criminals. Based on this, emphasis is placed on the urgent need for proper protection of payment systems. It is noted that examples of global counteraction to crimes and various offenses committed in the field of electronic payments are developed countries such as the United States, Great Britain, Canada, Singapore, as well as the European Union, especially France and Germany. As a result of the study, it has been noted that the above countries have all the opportunities to provide Ukraine and its citizens, as well as government officials with the

Метою статті є розгляд правових, організаційних і технічних питань сучасного стану протидії правопорушенням у сфері використання електронних платіжних систем у різних країнах світу та в Україні. У статті були використані наступні методи: діалектичний, документального аналізу, аналітичний, аналіз документів та спостережень. Виявлені та проаналізовані сучасні тенденції та ризики, пов’язані із застосуванням суб’єктами правовідносин електронних платіжних систем. Електронні платежі, з одного боку, є прогресивною та зручною новацією, яка у значній мірі прискорила можливість осіб здійснювати повсякденну участь у ринкових взаємовідносинах, з іншого – є об’єктом протиправних посягань, які видозмінюються та систематично удосконалюються злочинцями. Відтак, на сьогодні є гостра необхідність у належному захисті платіжних систем. Взірцями світової протидії злочинам і різноманітним правопорушенням, вчинюваним у сфері здійснення електронних платежів, є такі розвинуті країни як Сполучені Штати Америки, Велика Британія, Канада, Сінгапур, а також країни Європейського Союзу, перш за все Франція та Німеччина. В результаті

102

Doctor of Law (2JD), Professor, Professor at the Department of Administrative Law and Administrative Activities of Yaroslav Mudryi National Law University, Ukraine.

103 Doctor of Jurisprudence, Associate professor, Professor at the Department of Criminal Law № 1 Yaroslav Mudryi National Law University, Ukraine.

104 PhD in Law, Associate Professor, Academy of the State Penitentiary Service, Ukraine.

105 Doctor of Sciences (Law), Professor, Academy of the State Penitentiary Service, Ukraine.

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necessary guidelines, technical and legal assistance to create an effective mechanism to combat offenses in the use of electronic payment systems.

Keywords: cybercrime, payment.

electronic payment system, crime prevention, electronic

дослідження було відзначено, що саме зазначені вище країни мають усі можливості для надання Україні та її громадянам, а також представникам державної влади необхідних методичних рекомендацій, технічної та правової допомоги щодо створення дієвого механізму протидії правопорушенням у сфері використання електронних платіжних систем. Ключові слова: електронна платіжна система, кіберзлочинність, протидія правопорушенням, електронний платіж.

Introduction Perceiving cybersecurity as one of the priority areas of national security is common among both developed and transitional states in today’s globalized and digitized world. This is particularly relevant for the relatively young Independent state of Ukraine, which has during the last years repetitively fallen victim to many instances of high-profile malicious activity in cyberspace, the so-called “cyberattacks” (Streltsov, 2017).

Extremely dynamic changes currently continue to undergo in Ukraine like in most foreign countries in the field of payment settlements between the subjects of such public legal relations. The relevant state of affairs in this area is at the same pace with the development of dissemination and exchange of information on the Internet and high information technologies in all countries. Current tendencies indicate that the peculiarity of the development and variability of electronic payment systems is the fact that they, unlike many other areas of society’s life, tend to quickly reorient to the latest solutions coming from the leading countries in this area. On the one hand, it gives payment systems more chances to create sufficient security for their own structures and property, especially in the developed world.

On the other hand, this situation allows fraudsters, cybercriminals, hackers to attack those subjects of payment relationships who have not had time to adapt in time to the new standards of activity in this area for objective reasons yet.

Modern period of banking technologies development is characterized with modifications of crime, complication of logical connections, new and renovated old ways of abuse, the distinctive difference of which lies in more complex algorithms of perpetrators’ actions.

According to Klochko (2020, p. 5-7) among the determinants that stipulate the commission of crime in the field of banking in Ukraine, there are:

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1) gaps in activities of units and individual law enforcement officers related to immediate counteraction to crime in the field of banking (poor and unprofessional support of objects, untimely and ineffective response to information about crime in the field of banking, etc.); 2) lack of a well-established mechanism of interaction between law enforcement agencies with control bodies and banking institutions; 3) growing number of online banking transactions; new types of online channels, such as online casinos and virtual auctions, the emergence of virtual money; 4) imperfection of regulations governing the operation of banking institutions, as well as the activities of law enforcement and control agencies related to inspections, documentation of criminal activities and criminal proceedings on the grounds of acts that encroach on public relations in the field of banking in Ukraine; 5) political determinants related to gaps in operation of the political subsystem of society, which encompasses a range of tools and forms of interaction of political institutions at different levels, etc.

Thus, these factors clearly indicate the need to strengthen the fight against offenses that are aimed at capturing personal payment data of the subjects of public legal relations or their monetary assets, property, etc.

Literature Review It can be argued that the topic of this article is extremely relevant due to the urgency of the problems associated with the functioning of payment systems around the world, as well as the level of their security and protection. From the recent business world and transaction aspect of business relationship becomes more effective

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when dealing with the internet and electronic means. Ensuring it's effective implementation it's of utmost importance and desirability as parties becomes satisfactory and confident in such transaction. It there becomes frustrating when such transaction is affected by the so called cybercrimes frustrating the rationale of the electronic transaction. The question one need in posing here is in determine who becomes liable of such forms of crime committed, and what is the situation and position of the law in punishing those who commits such crimes. Moreover, it is not coincident that today in the scientific and specialized literature more and more attention is paid to conducting scientific and expert research on the issues of combating offenses in the field of electronic payment systems.

Trubin (2013) in his monograph “Legal Principles of electronic money functioning of in the field of electronic commerce” has studied the origin and functioning of electronic money, the essence and features of electronic commerce.

Based on the study of a new form of payment instrument, the authors have studied electronic money as the main element of the electronic payment system, as the current state and legal regulation of relations in this area. Based on scientific knowledge about the institutions of the information society, the features of information security have been studied and the main directions of improving the legal regulation of public relations related to the functioning of electronic money in Ukraine have been formulated. The problem here is not only the concept or establishing that there is electronic money which parties considers it as effective.

The question is asking in knowing what becomes in situation where one of the party violates this contractually obligation and exercising the necessary punishment. We have to bear in mind that, the aspect of electronic payment has suffered lots of handicap and challenges when dealing with it's implementation and enforcement. Most of the transaction are affected by internet crimes.

Herasymov (2018, p. 60-61) has made an attempt to improve the notion of crimes in the sphere of banking activity, has determined them as “the socially dangerous guilty acts under the Criminal Code of Ukraine, encroaching on funds or other property, commercial or banking secrecy of banks and/or their clients, on the procedure of credit and financial transactions in banking institutions, or illegal actions with transfer documents, payment cards and other means of access to bank accounts, electronic money,

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equipment for their manufacture, committed with the use of banking operations”.

Klochko (2019) comprehensively investigated theoretical problems and practical grounds of counteracting crime in the field of banking in Ukraine. The phenomenon of crime in the field of banking, its current state, trends and patterns of development are studied. The factors of social conditionality of criminal-legal protection of the sphere of banking activity in Ukraine are determined, the state of protection of the sphere of banking activity of foreign countries at the criminal-legal level is investigated.

While supporting this statement, it is worth noting that investigating and determining that there is internet crime is laudable initiative adumbrated by the government of Ukraine in combatting electronic crimes, but there is still increase in the rate of violation of electronic payment making it questionable. One thing is in putting in place great and wonderful mechanisms in combatting these crimes, the other is at the level of proof or evidence that there has been violations of electronic payment. It becomes extremely difficult task in establishing that the crimes committed were as a result of electronic payment.

The problems of Ukrainian banks work innovation are investigated in the article Bondarenko and Politylo ("Banking innovations as effective functioning of the bank market need", 2018). The main attention is paid to the issue of the importance and necessity of banks innovative activity for providing their effective development in the market. Moreover, the foreign experience of innovative banking products and technologies has been worked out and major global banking innovations directions are highlighted.

The article Nikiforchuk's (2018a) "Features of the qualification of crimes committed in the field of bank electronic payments, that counteract them" is devoted to the analysis of crimes committed in the field of bank electronic payments and such an element of criminal law characteristics as a qualification of a crime of this category. The main factors considered the concept of countering crimes committed in the field of electronic banking payments.

Another scientific article ("Electronic Money in the Sphere of Financial and Banking Crimes: Problems and Definition") Nikiforchuk (2018b) analyzed the existing definitions of electronic money, which are used in the financial and

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264 banking sector and the development on their basis of their own position towards disclosing crimes committed in the field of electronic banking and payments. This is due to the fact that the world banking system actively uses new elements for settlements and payments. Given the worldwide trend in the financial and banking sector to use new types of payments and their implementation between banks in the form of electronic means of payment and electronic money as its means of payment, Ukraine has also connected to these innovations. Legislative acts introduced the terms «electronic money» and «electronic means of payment».

As Chaplian (2020) notes in his study: «Despite the large number of studies on the issuance and circulation of these objects, almost all of them study either cryptocurrencies or electronic money, without paying attention to a comprehensive approach to electronic means of payment. As a result, scientific sources do not provide a holistic view of electronic means of payment as a set of specific objects that exist in electronic form and, along with money, are used to make payments. In addition, scientists do not understand which objects belong to this set».

The information and analytical basis of the scientific research was the regulatory base regulating relations in the field of combating offenses in the field of using electronic payment systems, as well as scientific achievements and applied developments of scholars and practitioners of Ukraine and abroad. What a wonderful euphoria of establishing and accepting great policies, and methodology in proving or providing that truly they exists offences as a result of electronic payment contract. With all its beautiful mirror of establishing that offences are experienced in electronic payment is interesting, but proving it or establishing that one of the parties violated this area of the law becomes an oblivious nightmare and myth in the country.

Data collection was carried out through two techniques: document analysis and observations, followed by data reduction, data display, and conclusion. Mixed methods of data collection were utilized which enabled the researchers to collect both primary and secondary data. For a secondary source of data literature was consulted for the study.

All stated methods were used with regard to interdependence and interconnection.

Меthodology Results and Discussion Nowadays, any research should be based on the use of appropriate scientific methods that allows to achieve the purpose of the work, to make scientifically substantiated conclusions and to suggest appropriate ways to solve this problem.

The methodological basis of the work is an interdisciplinary approach, which is based on the modern paradigm of general theoretical and special knowledge of legal science. An objective analysis of studying the problems of combating offenses of using electronic payment systems has become possible due to the use of a set of methods of general and special scientific knowledge.

With the help of the dialectical method of cognition, it was possible to clarify such concepts as “payment system”, “electronic payment” and “combating cybercrime”.

The method of documentary analysis and analytical method have been used in the scientific substantiation of theoretical conclusions. In particular, the authors have concluded that the solution of the existing problems in the field of combating offenses related to the use of electronic payment systems is possible only through comprehensive and multilateral research.

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The need for electronic payment systems has grown dramatically after the inception of online shopping and eCommerce websites. The Epayment system made it convenient for the customer to pay for anything at any time. The COVID-19 pandemic has increased the need for electronic payment systems as it has forced people to stay at home. However, businesses need to work on their electronic payment systems if they want to provide better service (Digipay, 2021).

That the operation of electronic means of payment is based on different technologies (blockchain or other), the issue is governed by different approaches (prepaid or non-prepaid means of payment), they have different legal nature (obligations or general status of an individual object civil rights, as in traditional cryptocurrencies). But at the same time, despite such obvious differences, by their civil law regime and the peculiarities of turnover and virtual currencies, and electronic money, and stablecoins are ideal disembodied things, and from the standpoint of the ratio of money, these objects have reason to be recognized monetary substitutes in their doctrinal definition (which, incidentally, should encourage the legislator to

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clarify the legislative definition of the concept of monetary surrogate and the possible introduction of the term “electronic monetary substitute”).

These objects, the internal legal nature of which is leveled and replaced by the status of homogeneous units of account, perform exactly the same functions: act as a means of exchange and payment, and have every reason to use as a means of accumulation (Chaplian, 2020, p. 256).

The formation of the payment system as a component of the electronic payment system is carried out depending on the type of electronic money. The content of the work of payment systems based on smart cards is that users download payment instruments, in the process of their use, from bank accounts to smart cards or PC-files. While making a purchase with the help of such tools, first the availability of the required amount is checked, then this amount is deducted from the current balance of the buyer and is added to the deposited amount of the “supplier” (Trubin, 2013, p. 64).

The electronic money system is a model with a set of subsystems that allow electronic value to move under the control of the system administrator, who controls the security for the creation and circulation within the system (Ivasiv, 2011). Payment transactions are carried out through the banking network, using different payment systems that is quite convenient for customers. The high popularity of the banking network is evidenced by the data from the Bank for International Settlements (for example, the volume of electronic money transactions in 2005 amounted to $ 41 million, in 2010 – $ 25 billion, in 2015 – $ 400 billion. This figure is annually growing (Riadinska et al., 2018, p. 88; Nikiforchuk, 2018b, p. 159).

As a result of the massive banking crisis, which Ukraine also faced after the beginning of the reform of the banking sector, the Government of the country was faced with the issue of creating effective mechanisms for detecting and neutralizing offenses in this area. In particular, one of the components of this reform was the audit, which proved that most banks and other financial institutions registered in Ukraine violate or have repeatedly violated the legislation in the banking sector, as well as financial regulation.

Due to the detection of mass violations and frauds by the state agencies of Ukraine, which took place in the activities of most banking institutions, a great part of the latter began to go into liquidation by relevant court decisions. The

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consequence of such a large-scale and almost simultaneous liquidation of banking and other financial institutions was a kind of “panic” in the financial and securities markets of Ukraine, and the Ukrainian national currency (hryvnia) began to depreciate against economically developed countries. However, due to the professional and timely activities of the leadership of the National Bank of Ukraine and the Cabinet of Ministers of that time, it was possible to stabilize the national currency, to introduce the supervision mechanism over the financial institutions and banks (National Bank of Ukraine, 2021).

The Government of the country has taken examples of successful settlement of interfinancial and interbank relations as a kind of pattern, which are implemented in developed countries of Western Europe and the United States of America. For example, one of such effective tools can be considered the specification of the subjects of crimes’ corpus delicti committed with the use of electronic payment systems. Besides, in contrast to the legislation of Ukraine, there is criminal liability for fraud of using electronic means of payment or payment devices in some developed countries.

This indicates that it is necessary to make qualitative amendments to the national legislation of the country in order to properly ensure the use of payment systems in Ukraine.

Among other things, the newly created norms of laws and other regulatory acts should clearly and unambiguously prescribe mechanisms that should allow government agencies and independent regulatory agencies to audit the activities of banks and financial institutions (National Bank of Ukraine, 2021).

Specification of the list of permitted activities of banking and other financial institutions, creation of a public step-by-step procedure for the registration and verification of their daily activities is also important. We can say in the context of this issue that the most attractive and illustrative example of the successful experience of such a settlement of this area are the continental countries of Western and Central Europe. The list of such states should include Switzerland, Austria, Germany, France, etc., since those countries have a long tradition of codification, unification and systematization of legislative acts in various fields of law. In addition, those countries consistently have a fairly high level of reliability of banking institutions and the operation of payment systems of various kinds, including electronic ones. It is surely guaranteed by an extremely strong level of

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266 security of financial and other institutions and organizations.

It is clear that the crucial factor in counteracting the numerous cases of crimes and offenses that occur in the field of electronic payment systems is the introduction of criminal liability for persons who are the subjects of such crimes. In this context, we have the opportunity to assess the extremely successful experience of a number of developed countries in continental Europe, whose legal system is most similar to the Ukrainian one. In particular, those are such countries as the Republic of Poland, Switzerland, the Republic of Finland and other countries.

According to their example we find that a clear and unambiguous criminal sanction for a specific crime is a significant factor in influencing potential offenders by convincing them that the potential “benefit” of such a crime will be less than the risk of punishment.

According to some authoritative studies conducted by experts in banking, finance and legal spheres, the introduction of such penalties, namely the creation of clear criminal liability for various types of abuse in the field of using electronic payment systems is a really effective way to positively solve this problem. However, researchers emphasize that this method of combating financial crimes will be most effective only if it is combined with the establishment of order and clarity in the functioning of institutions and agencies that are subjects of financial and banking activities. It is also necessary to ensure advanced progress in the field of high technologies and their timely implementation into daily activities in this area (National Bank of Ukraine, 2015).

Recently, several “dangerous actions” have been also criminalized and more clearly defined in national legislation of Ukraine. For example, the Law of Ukraine “On Amending Certain Legislative Acts of Ukraine on Liability of Persons Related to the Bank” dated from March 2, 2015 No. 218-VIII” (Law of Ukraine, 2015) supplemented the Criminal Code with the Articles 218-1 “Bringing the Bank to Insolvency” and 220-1 “Violation of the Procedure for Maintaining the Database of Depositors or Procedure for Reporting”.

Another very important component of combating criminal offenses arising from the use of electronic payment systems is the development and support of the introduction of modern achievements in the field of high technologies.

This thesis is supported by the fact that the

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introduction of advanced information technologies by financial institutions assists to the increase of productivity and the quality of their services. It should be noted that technologies allowing more efficient and secure operation of electronic payment systems, services and applications in the country have recently gained rapid spread in Ukraine. This fact was mainly due to the situation when Ukrainian electronic payments market was strongly influenced by tendencies of the developed world (USA, UK, Belgium, Germany, the Netherlands, etc.). The list of the latter includes China, Japan and South Korea as three leading countries in the field of high technologies development among Eastern countries. The only difference between those three economic giants is that, unlike the People’s Republic of China, Japan and South Korea are legal and democratic countries with full transparency of state authorities’ activities and a very strong level of privacy and protection of technologies. The fact that those two countries have a high culture of law, transparency and democracy has led to the development of high technology sphere (including electronic payments and systems) in full compliance with the principles of unconditional protection of intellectual property rights. Moreover, it is applied to the intellectual property rights of persons-developers of electronic payment systems, as well as the intellectual property rights of persons who are customers using these electronic payment systems.

Thus, in contrast to those democratic Asian states with real rule of law and a high rating of individual freedom and respect for private and intellectual property, the situation in China is different. Given that this country is under the authoritarian rule of the Communist Party, it is important that it does not respect the fundamental rights and freedoms of individuals as much as it is in legal countries. Therefore, the specifics of the development of electronic payment systems in this country is the frequent failure of developers to respect human rights and freedoms (for example, the right to privacy, the confidentiality of correspondence, the right to private property, etc.). Besides, the state authorities of this country have been repeatedly noticed in the theft of technologies and plans for potential developments of other states, mostly Western. Thus, an example of the development of Chinese electronic systems is not desirable for Ukraine. After all, Ukraine, being a European country, tends to share cultural values, to ensure rights and freedoms.

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To conclude the review of the peculiarities of the functioning of electronic payment systems in developed Asian countries, we can point out that there are several other countries in this region, which, although not on such a large scale, but demonstrate advanced elements of electronic payment systems. We can confidently add Singapore to such countries, which, despite the existence of a ruling authoritarian regime, provides real protection and inviolability of intellectual property rights. All subjects of public relations are also protected by the laws of the state from unlawful encroachment on their private property and other property interests.

Another country that is able to effectively ensure and maintain the functioning of modern electronic payment systems at a high global level is Taiwan. There is an effectively functioning legal system in this country, which, incidentally, remains unrecognized by some other countries and has significant contradictions with mainland China. Such legal system promotes comfortable and unhindered business on the territory of Taiwan. Therefore, Taiwan is known for the fact that, despite its small size, it has “forced” the surrounding states to recognize it as equal subject through the creation and development of its own economic power. Of course, this economic greatness would not be fully significant if it were not based on Taiwan’s high-tech leadership, in particular in the financial and banking sectors.

Undoubtedly, Ukraine should follow the example of advanced Western countries, such as the United States, Canada and EU member states.

The United States is unequivocally considered a world leader in the protection of payment systems, protection and enforcement of banking and financial institutions. A high level of electronic payment protection standards is a hallmark of the American system.

Taking into account this fact, representatives of the Ukrainian authorities who came to power after the Revolution of Dignity were able to establish some productive contacts with the structural departments of the US State Department, which made it possible to implement joint assistance programs for Ukraine.

We can single out the National Program for Promoting the Security of Electronic Payments and Card Payments among such programs, the essence of which is to increase the efficiency of both individual elements of the financial and banking system of Ukraine and its competitiveness in general. This project was mostly created with the financial support of agencies and institutions run by the US

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government, and its coordination is carried out by the Ukrainian Interbank Association of EMA Payment System Members. Having been started in 2016, this project has already achieved some pre-planned results. In particular, the operational interaction between financial institutions (including banks) with units of the National Police (especially cyberpolice units), as well as other law enforcement agencies was increased during the processes related to the investigation of any offense in the financial and banking sector (Bondarenko & Politylo, 2018).

It is worth noting that crimes related to the illegal use of electronic payments are among those most often encountered by law enforcement officers in their daily work. Due to such processes, there is the progress in the investigation of the specified crimes.

According to the results of the research, crimes related to the use of bank settlements and payments in most cases are committed by individuals, in some cases – by organized criminal groups, and have a high level of latency and, according to practice, are most often detected as a result of operative and. search activities. The complexity of this crime, in contrast to other criminal encroachments, is that crimes in the field of bank electronic payments are one of the new types of criminal offenses, since the terms of “electronic money” and “electronic means of payment” were introduced into the Criminal Code of Ukraine only in 2012 (Nikiforchuk, 2018a, p. 279). In addition, the complexity of counteraction to offenses committed with the use of electronic payment systems is manifested in the ramifications of the ways of committing such offenses. In particular, those are crimes related to: 1) encroachments on property; 2) management; 3) official activities and professional activities related to the provision of public services; 4) the use of electronic technologies, etc.

That is, one of the features of crimes committed with the use of electronic payment systems is that they are qualified not only under a special Article of the Criminal Code of Ukraine, but also under other related Articles of the Criminal Code of Ukraine, since such crimes are committed with the use of information and telecommunication technologies and tools.

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268 Conclusions When preparing conclusions and recommendations based on the results of the study, the method of generalization was used.

Thus, summarizing the research, we can state that counteraction to offenses committed with the use of electronic payment systems is extremely urgent. This statement is based on the fact that more and more money is transferred and distributed through electronic means of payment.

Such processes are greatly facilitated by the latest advances in high technology area, such as the blockchain system.

The distance and depersonalization of the owner of e-money increasingly makes it a powerful tool and a means of committing crimes. The complexity of the trace examination for electronic trace tracking, as well as the extreme remoteness from the place of commission or preparation of crime in case of the use of emoney makes it a powerful and extremely dangerous means of committing a crime.

Therefore, in order to find out the criminal nature of the use of e-money and payments as means of committing crimes, it is necessary to study: a) the nature, meaning and legal regime of e-money and electronic payments; b) the mechanism of using e-money as a means of committing criminal offenses; c) legal features of regulating the circulation of e-money and the relations built around these payment instruments as separate subjects of relations (Vozniuk et al., 2020, p. 150).

Huge amounts of money currently appear in the so-called “black markets” or, to put it more modernly, in the “darknet”. Therefore, a rather significant part of the current electronic payment systems derive from the activities of unregulated national legislation or underground market relationships. That is why it is important to combat offenses committed with the use of electronic payment systems. Counteraction to such crimes can be defined as a comprehensive system of measures aimed at preventing, detecting and investigating crimes in the field of using electronic payment systems, as well as preventing the occurrence of a criminal nature and preventing the recidivism of these crimes in the future. In this case, the main condition for the application of the specified measures is the legitimacy of their implementation, i.e. they must be carried out only by authorized entities of such activities. Subjects of counteraction in the field of using electronic payment systems must be authorized persons, the list of which is provided

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by the Criminal Procedural Code of Ukraine and the Law of Ukraine “On Operative and Search Activity”.

Bibliographic references Bondarenko, L., & Politylo, M. (2018). Banking innovations as effective functioning of the bank market need. Investytsiyi: This practice dosvid, 3, 5–8. https://ur.snau.edu.ua/?p=2640https://www.r esearchgate.net/publication/346952893_BA NKING_INNOVATIONS_AS_EFFECTIV E_FUNCTIONING_OF_THE_BANK_MA RKET_NEED Chaplian, S. (2020). Common and distinctive signs of electronic means of payment.

Knowledge, Education, Law, Management, vol. 2, 3(31), 250-258. Retrieved from http://kelmczasopisma.com/ua/viewpdf/1293 Digipay. (January 4, 2021). What do you need to know about Electronic Payment Systems?

Retrieved from https://www.digipay.guru/blog/electronicpayment-systems/ Herasymov, V. O. (2018). Structural analysis of crimes within the banking sector. Law and Safety, 66(3), 57-62. Retrieved from http://pb.univd.edu.ua/index.php/PB/article/ view/65.

Ivasiv, B. (2011). Electronic Money: Opportunities, Tendencies for Development and Consequences of the Dissemination.

Financial Market of Ukraine, 5, 8–9.

Klochko, A. M. (2019). Theoretical and Applied Principles of Counteracting Crimes in the Banking Business Sector in Ukraine: monograph. Sumy: FOP Shcherbina IV, 476 p. https://ur.snau.edu.ua/?p=2640 Klochko, А. М. (2020). Theoretical and practical grounds of counteracting crime in the field of banking in Ukraine (Master’s thesis for the academic degree of the Doctor of Law).

Sumy National Agrarian University of Ministry of Education and Science of Ukraine Institute of State and Law, V. M. Koretsky of the National Academy of Sciences of Ukraine, Kyiv. http://idpnan.org.ua/files/2020/klochko-a.m.teoretiko-prikladni-zasadi-protidiyizlochinam-u-sferi-bankivskoyi-diyalnosti-vkrayini_d_.pdf Law of Ukraine No. 2346-III. Bulletin of the Verkhovna Rada of Ukraine. 2001. No. 29.

Art. 137.

Law of Ukraine No. 218-VIII. Verkhovna Rada of Ukraine, March 2, 2015. Retrieved from https://zakon.rada.gov.ua/laws/show/2189#n17.

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National Bank of Ukraine (2015). Banking System of 2015: Challenges and Perspectives.

Kyiv.

Retrieved from https://old.bank.gov.ua/doccatalog/document ?id=14741673 National Bank of Ukraine (2021). General Indicators for the Development of Electronic Cards Market in Ukraine. Retrieved from https://bank.gov.ua/en/ Nikiforchuk, V. (2018b). Electronic Money in the Sphere of Financial and Banking Crimes: Problems and Definition. Scientific Herald of National Academy of Internal Affairs, 2(107), 158-171.

Nikiforchuk, V. D. (2018a). Features of the qualification of crimes committed in the field of bank electronic payments, that counteract them. International law herald: actual problems of the present (theory and practice), 3–4(12–13), 278-285. Retrieved from http://ojs.nusta.edu.ua/index.php/ojs4/article/ download/251/339/.

Riadinska, V., Dei, M., & Rudenko, O. (2018).

European standards of the circulation of

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electronic money and the prospects of its implementation into the law of Ukraine.

Association agreement: from partnership to cooperation (collective monograph).

Hamilton, Ontario: Accent Graphics Communications & Publishing.

Streltsov, L. (2017). The System of Cybersecurity in Ukraine: Principles, Actors, Challenges, Accomplishments. Eur J Secur Res, 2, 147–184. doi: https://doi.org/10.1007/s41125-017-0020-x Trubin, I. O. (2013). Legal Principles of Electronic Money Functioning in the Sphere of Electronic Commerce: monograph. K.: Alerta.

Vozniuk, A. A., Savchenko, A. V., Tarasevych, T. Y., Dudorov, O. O., & Klymenko, O. A. (2020). Electronic Money and Payments as Means of Committing Crimes.

Academic Journal of Interdisciplinary Studies, 9(4), 150. DOI: https://doi.org/10.36941/ajis-2020-0069.

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Khromov, A.V., Gadzalo, I., Abroskin, V.V., Zavalnyi, M.V. / Volume 10 - Issue 44: 270-277 / August, 2021

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DOI: https://doi.org/10.34069/AI/2021.44.08.26 How to Cite: Khromov, A.V., Gadzalo, I., Abroskin, V.V., & Zavalnyi, M.V. (2021). Perspectives of public administration’s development: International experience. Amazonia Investiga, 10(44), 270-277. https://doi.org/10.34069/AI/2021.44.08.26

Perspectives of public administration’s development: International experience Перспективи розвитку публічного адміністрування: міжнародний досвід Received: July 19, 2021

Accepted: September 20, 2021

Written by: Anatoliі Volodymyrovych Khromov106 https://orcid.org/0000-0002-9546-7089 Iaroslav Gadzalo107 https://orcid.org/0000-0002-5028-2048 Viacheslav Vasiliievich Abroskin 108 https://orcid.org/0000-0002-4062-8105 Mykhailo Volodymyrovych Zavalnyi 109 https://orcid.org/0000-0003-4191-061X Abstract

Анотація

The purpose of this article is to reveal the urgent state of affairs in the sphere of public administration in Ukraine and the world. The most relevant problematic issues in regard to the functioning of public administration area have been also studied. The current prospects for the development of public administration are characterized. In particular, successful examples of international experience in this field are analyzed. Methods of public administration in a number of developed countries are also compared. The meaning of the terms "public administration", "implementation of public administration" and "development of public administration" is revealed. It is noted that the importance of understanding exactly how to carry out public administration within a particular state or a particular region or municipality is a key factor in the success and effectiveness of a political program of any political force. The importance of active cooperation of state authorities of Ukraine, as well as the public, with Ukraine's international allies and partners is emphasized. After all, it is fruitful interaction with such states that will help Ukraine to develop faster and acquire the useful qualities and properties that it must possess in

Метою статті є розкриття актуального стану справ у сфері публічного адміністрування в Україні й у світі. Також розглядаються найбільш гострі проблемні питання відносно функціонування галузі публічного адміністрування. Характеризуються наявні на сьогоднішній день перспективи розвитку публічного адміністрування, зокрема, аналізуються успішні приклади міжнародного досвіду у цій сфері та порівнюються методики здійснення публічного адміністрування у низці розвинутих країн світу. Розкривається зміст понять «публічне адміністрування», «здійснення публічного адміністрування» і «розвиток публічного адміністрування». Аналізується специфіка здійснення публічного адміністрування у країнах, на які Україна прагне бути схожою. Зазначається, що важливість розуміння того, як саме здійснювати публічне адміністрування у межах конкретної держави або конкретного регіону чи муніципалітету, є ключовим фактором успішності та ефективності реалізації тієї чи іншої політичної програми будь-якої політичної сили. Окремо підкреслюється важливість активної співпраці органів державної влади України, а також громадськості, із міжнародними союзниками та

106

Candidate of Historical Sciences, Head of the State Archival Service of Ukraine, Ukraine.

Doctor of Agricultural Sciences, Professor, Academician of the National Academy of Agrarian Sciences of Ukraine, President of NAAS of Ukraine, Ukraine.

108 PhD in Law, Rector of Odessa State University of Internal Affairs, Ukraine.

109 Doctor of Jurisprudence, Senior Researcher, Associate Professor of the Department of Administrative Law and Process of the Faculty No. 1 of Kharkiv National University, of Internal Affairs, Ukraine.

107

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order to effectively administration.

carry

out

public

Key words: public administration, correct policy, legal support, public services.

партнерами України. Адже саме плідна взаємодія з такими державами допоможе Україні розвиватися більш швидко і набути ті корисні якості і властивості, якими вона повинна володіти задля ефективного здійснення публічного адміністрування. Ключові слова: публічне адміністрування, коректна політика, правове забезпечення, публічні послуги.

Introduction The issue of the development of electronic space in the conditions of the modern globalization and information world acquires special urgency at present time. This indisputable fact actualizes the study of a set of problems that have a direct impact on the development of society. First of all, it concerns the issues of improving the efficiency of public institutions’ activities, including executive agencies and local self-government, through the introduction of information and communication technologies based on egovernment (Tsybulnyk et al., 2020). The vast majority of countries seek to achieve greater efficiency in the field of public administration in accordance with the current world tendencies.

The quality and efficiency of the implementation of direct public and administrative functions by state agencies and institutions, as well as local self-government agencies, directly depends on a number of equally important factors. Such factors are the political regime in the country, the level of its economic development and the level of transparency of the state system. In addition, issues related to the legal regulation of public administration area by the state are influential.

According to a number of scientific studies, the current system of public administration in Ukraine remains inefficient, corrupt and internally contradictory, which is a significant obstacle to positive changes in society and the state. Insufficient level of transparency and openness in public administration area, unclear distinction between political and administrative spheres, insufficient professional level of state officials, lack of a unified system for assessing their competence, low level of disciplinary liability, imperfect mechanism of political and administrative control within public administration system – all these factors are destructive elements in the organization of an effective system of public administration. Thus, according to the Global Competitiveness Index 2017-2018 published by the World Economic Forum, Ukraine ranked 81st among 137 countries in 2018, improving its position by only

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four points. According to the study data, Ukraine has worsened its position in 4 out of 12 key indicators. Mostly it has lost (minus 13 points) on the component of “Labor market efficiency”. The tendency to worsen this indicator has been observed in the studies of the last year (Bobko, 2018).

Thus, those factors play a significant role both in improving the quality of public administration, if they are in a well-developed state, and hinder the implementation of effective public administration in case of their underdevelopment. Taking into account this fact the authors have paid considerable attention to the above and other components of the processes related to the implementation of public administration in Ukraine and other countries of the world.

Methodology The article was written based on the bibliographic method, the use of which made it possible to study the literature behind the topic of the article and draw appropriate conclusions.

Data collection was carried out through two techniques: document analysis and observations, followed by data reduction, data display, and conclusion. Mixed methods of data collection were utilized which enabled the researchers to collect both primary and secondary data. For a secondary source of data literature was consulted for the study.

The bibliographic method includes a qualitative selection of documents, assuming the formulation of appropriate criteria, focus on requests and interests. Any scientific research (both collective and individual) begins with an analysis of the flow of documents on the topic under study and ends with the compilation of a bibliographic list. Methods of grouping bibliographic information, building it in a different sequence (systematic, thematic, logical, chronological, alphabetical, linguistic, etc.),

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272 make it possible to characterize the problem under study in different ways.

The comparative analysis provided an opportunity to identify different approaches to the perspectives of public administration development. This fact is fully explainable since many scholars were interested in the perspectives for the development of electronic litigation.

Some of them have paid serious attention to that matter, having accomplished in-depth research on that topic, as evidenced by the authors’ own approaches to the innovative development of public administration, which is essential for further successful improvement of public administration and public activities. A significant contribution to the development of those issues has been made by well-known experts, who consider public administration as the priority key issue. They combine, in their research, world experience, knowledge of political realities and modern practice – approaches, principles and values, as well as the formation and development of public administration in Ukraine.

Literature Review N. Nyzhnyk (2008) defined the system of public administration as a set of specialized subjects and procedures of managerial influence, which ensures the existence of society within a certain area and is organized around an institutionalized center and performs most of the coordination activities, distributes management functions and guarantees their implementation. The scholar emphasizes that public administration should be considered through the principles, where special attention is paid to the role and importance of personnel in the system of public authority and public administration.

O. Obolenskyi (2009) considers theoretical approaches and the sphere of public administration through the foundations of democratic principles. Public administration according to this author should be understood as managerial influence – a tangible interaction of the state apparatus and society in making important decisions, actions for the country (society, population), as an open public sphere of public interest, where all public institutions, citizens can be both the objects of management and can act as subjects, autonomous units in relations with authorities and management.

O. Zimina (2011) notes that taking into account the experience of developed countries of Western democracies, we should focus on elaborating a strategy of development for Ukraine for the next

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ten years, making it impossible to revise it under the pressure of political conditions. The concept of public administration and the law on public service should become the key component of Ukraine’s development strategy. This will facilitate the improvement of state institutions’ activities and will enable civil society to participate in management decisions, taking into account the experience of developed countries.

All the above measures will contribute to the efficiency and effectiveness of the reproduction of the democratic essence of the young independent state of Ukraine.

It is worth noting the monographic study on “Public management and administration in terms of information society: domestic and international experience”, authored by S. Chernov, V. Voronkova, V. Banakh, (2016).

That paper provides a conceptual analysis of public management and administration, the subject matter of which is the analysis of economic, social and political processes occurring in the public sphere, and the object is theoretical, methodological and methodical foundations of management in the public sphere.

The authors presented domestic and international experience of public management and administration, presented by the experience of Europeanization of public management and administration of post-communist countries of Central and Eastern Europe, as well as the impact of this process on public management and administration in Ukraine. The authors also presented the experience of Lithuania, which demonstrates the European level of public management and administration based on the practical implementation of the “good governance” principles, which is an effective experience of public management and administration.

The textbook, edited by O. V. Skydan (2017), determines methodological approaches to administration in public management, establishes the role and importance of administration in the systems of legislative, executive and judicial power. The authors focused their attention on the economic and administrative role of state executive agencies in ensuring social development in terms of existing threats to national security. According to the researchers, the management of territorial development and the formation of local identity is of particular importance in the context of decentralization, and it is necessary to focus on the application of world practices, especially communications in the public sphere and specifics of psychology during the reform of

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public administration. Scholars have defined public administration as a holistic structured process that is part of public (state) governance (management), which is carried out by a set of state authorities and local self-government agencies in order to ensure sustainable and comprehensive development of the state in the whole and its certain regions on the basis of effective use of modern management methods and mechanisms based on the principles of democracy, legality and the rule of law, the priority of human rights, as well as the effective use and distribution of available state resources, which allows to ensure social equality and a high level of public needs.

K. L. Bugaychuk (2018) studied theoretical approaches to the definition of the essence and characteristics of public administration, its relationship with state and public administration, and the management process. In our opinion public administration is regulated by laws and other system organizing normative legal acts, power and regulatory activities of state authorities and local self-government, which is aimed at streamlining their organizational structure, planning, preparation, development and implementation of managerial decisions, organization of the management apparatus, the implementation of documentary, information, personnel, and psychological support of their daily activities in order to achieve socially useful goals and the creation and operation of the relevant entity of administration.

Result and Discussion It should be recognized that the main reason for the constant desire of citizens of different countries to constantly improve management in both public and private sectors has its roots from the ancient times. According to scholars, it is completely natural that individuals want management processes related to the organization of certain works or the provision of certain services to become more efficient over time and require minimum expenditures.

Thus, society’s need to increase the efficiency of public administration processes is based on the natural and historical necessity of people to receive services of better quality and the need for effective leadership. In other words, it is based on the constant need of individuals for progress and development (Mosher et al., 2020).

If we study the functioning of public administration more thoroughly, we can note that one of the key elements for the effective public

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administration (for example, the provision of public services) is the fact what is the political regime in the country, which public administration is studied.

In fact, we should state that the development of public management and administration depending on the peculiarities of the existence of a particular political regime in a particular country under specific conditions can be both rapidly accelerated and become a major factor in the decline of this area for a long period of time (OECD, 2008).

International experts state that the quality of the functioning of the processes related to the implementation of public administration by state authorities is generally much better in states whose political regime is generally called democratic and legal. Herewith, all actions of government agencies and institutions in such a regime will be taken in the interests of the entire society, all citizens of the state, thereby increasing their well-being and resolutely protecting their rights and interests.

On the contrary, the authoritarian regime is interested only in those actions that will strengthen its further power. Therefore, the actions of state authorities under the authoritarian regime do not demonstrate a real interest in the development of service function of the state in relation to all its citizens (European Union, 2017).

According to an authoritative British resource, the well-known English-language encyclopedia Britannica, which has been continuously existed, updated and published since 1768 and to the present time, public administration generally consists of the activities of various agencies and institutions of a state and local self-government, which consists in providing citizens with justice, financial institutions and security.

British and American scholars also add that the processes related to the provision of public services to the country’s citizens are extremely important and one of the main elements of public administration. It has been stated that such public services are extremely diverse and must meet the basic, if not all, needs of individuals for the realization of their rights and legitimate interests.

It should be noted that the prototypes of such a “service” policy towards citizens were elements of the activities of state authorities of the countries of the Ancient World.

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274 It is especially true of the Ancient Rome, where such a policy received its greatest development and practical implementation. Numerous magistrates, which were responsible for one or another direction for the organization of the state and society’s functioning, had to perform their direct work well and qualitatively, providing the population with the necessary conditions to realize their rights and meet their daily needs in many spheres of public life.

Subsequently, theoretical justification and practical implementation of the above processes have been developed to a higher level. Actions on improving the existing state system were taken with the development of democratic and liberal movements and processes in different countries of the world, as well as with a marked increase in the level of well-being of some states (United Nations, 2019).

In particular, many attempts have been made, including successful ones, to standardize the sphere of public administration, to overcome the negative factors of bureaucracy, as well as to increase the efficiency of government agencies and institutions. It is also applied to those agencies whose direct functional task was to provide public services to representatives of various segments of the population.

Regarding the development of public management and administration, it can be argued that large empires played a significant role in the development efforts of that sphere, especially at the initial stage. We talk about such states as the British Empire, which had more than a quarter of the world’s land area and more than a quarter of the world’s population under its control at the height of its power.

Given such a large territorial size, which, incidentally, was not limited to one particular continent, but located in different parts of the world, as well as a huge subjugated population, the British leadership urgently needed to implement reliable mechanisms for exercising public administration in regard to each integral part of the Empire of that time (McDonald III, 2020).

It was Britain that became one of the first countries in Europe to introduce the certification of state officials for their qualifications for the position they hold. A system of decision-making autonomy was also introduced in that country.

According to that system, a competent official had the right in some situations to take

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responsibility for making independently (O'Flynn, 2021).

decisions

Fundamentally different was the development of public administration in the XX century. The United States of America took the leading position in the effectiveness of the practical implementation of public administration, as well as in theoretical validity of this field. A strong economy, the financial well-being of the vast majority of the population, the real rule of law, an independent judicial system, a stable political system – all those factors have become a reliable way to increase the efficiency of public administration in the United States (Torneo, 2020).

It should be also added that public administration since the XX century has become increasingly associated with the economic condition of the state and the level of material well-being of its representatives. Besides, the effectiveness of the public administration system has been directly linked by Western scholars to the economic growth of a particular country.

We should note that the latest ideas expressed and later formulated by American and Western European experts and researchers in the XXI century, especially in recent years, outlined several proven principles.

First of all, it was argued that a significant part of the negative and inefficient processes in the field of public administration could be successfully eliminated through the proper organization or reorganization of a particular government agency or the entire system.

It has been pointed out that many useful elements of modern public administration in the developed world countries were borrowed from the business environment and from the military organization of some Western countries, primarily from the United States. Most of those elements have indeed proven their high effectiveness in their practical application in various areas of civil service (McDonald III & Hatcher, 2019).

International scholars and researchers of the processes associated with the implementation of public administration tend to identify several of the above organizational elements. Thus, they include, for example: the creation and organization of ministries, departments and agencies based on related or similar activities; merging units that carry out similar activities into a single structural unit; the combination of authoritative powers with responsibility, the

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introduction of the principle of “undivided authority”, when the responsibility to make key decisions has one person – the head even if there is independent control in accordance with the functioning of the unit.

Scholars also note other characteristic borrowed elements of the state systems of developed countries. Namely: making clear restrictions and definitions in regard to the matter of subordination, in particular, to whom of the middle and senior managers employees should report on their own direct activities; the division of employees into “operational line” employees who perform the direct functions of the unit or department and employees who perform advisory or support functions, mostly not related to the direct activities of the unit or department (European Union, 2018). It has been also emphasized that the functioning of modern state structural units engaged in public administration should be based on modern effective management methods. Among other things, it concerns to the application of the principle of “exception management” in government agencies, which is often used in Western private companies. The essence of this principle is that only an unusual problem or case acquires special significance and becomes a priority of the department. All other tasks must be solved in a standard mode with a clear and effective division of working time, number of employees and the amount of logistical support. Besides, it has been stated that a clear scheme of command and responsibility should be applied to the activities of units. In particular, management should be defined, hierarchical and free of redundant positions or duplication of powers. An important component of this should be the acquisition of greater autonomy in decision-making by lower and middle managers within their competence, in regard to the activities of the department or unit (Abony & Slyke, 2020).

Instead, it is important to provide a reliable accountability mechanism that would ensure that individuals are more accountable for their careers. It is clear that the main responsibility for the activities of a state agency should be borne by the head of that state agency (Osborne, 2010).

The modern civil service should definitely consist of the best components of successful experience and successful practical examples that have proved themselves in the past. Of course, obsolete components must either be updated to meet modern requirements or, if it is not possible, be disposed of as redundant and unnecessary. It should be noted that an extremely

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important part of that is the transparent inspection and independent control over the activities of state officials as persons carrying out public administration, as well as the competitive selection of persons for positions in government departments and institutions.

It should be emphasized that modern mechanisms of competitive selection of persons for public positions, in particular in those public agencies that directly perform the functions of public management and administration, are logical results of the development of former systems of certification of state officials.

If we take into account the Western countries, such certification systems appeared there in the XIX century. And if we consider the whole world, we can say that, for example, the systems for verifying the level of knowledge, skills and abilities of state officials in China and some other Asian countries existed several centuries before.

We agree that the practice of competitive selection of persons for positions in the field of public administration is and should remain one of the most important components. The high standards set in the best international practices should be definitely put forward before the competitive selection (Wal, 2013). In particular, it is applied to the transparency and publicity of such selection, the requirements for independence and impartiality of the members of the relevant commissions conducting such selections and the obligation for heads of public institutions to hire persons who have passed such a competitive selection.

An integral part of the functioning of the public administration area is the independent control over the distribution of the budget, i.e. the funds allocated for the implementation of specific programs in this area. For example, funds aimed at improving the efficiency of the process of providing citizens with certain public services (Roll, 2014). This state of affairs has long been common in developed Western countries and stably exists there. With regard to Ukraine, it should be noted that useful and effective practices of Western countries are gradually being implemented in the domestic society due to the movement towards European integration and due to the active support of Ukraine by foreign allies and partners.

It is clear that the Ukrainian state, in order to achieve the high level of quality of developed countries in the field of public administration, needs to make many more organizational and structural changes within the state system.

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276 Perspectives for further development of the domestic branch of public management and administration are the gradual adoption of modern international standards for the functioning of this area, along with the introduction of modern effective methods of implementation of tasks that are currently recognized as relevant (Ingrams et al., 2020; Lapuente & Walle, 2020).

Conclusions In the study scientists used methods of theoretical analysis and systematization to identify and specify the author's position within the studied issues. When preparing conclusions and recommendations based on the results of the study, the method of generalization was used.

Thus, the field of public administration is quite dynamic and depends on the state system, form of government and the level of democracy of public relations. The level of efficiency for the organization of the processes of public administration, in particular in the field of public administration services, will determine the further success of the entire public and administration system.

The history of the origin, formation and development of public administration is quite old, having some practices of public administration in the ancient times as their prototypes.

The economic condition of a particular state surely has a significant impact on the level of efficiency of public administration within the state. Besides, the impact of such important factors as the stability of the political system, the level of independence of the judicial system and the level of material well-being of the majority of citizens has been characterized.

Economic developed countries, and especially those with real rule of law and a high level of personal freedoms of citizens, are currently the undisputed leaders in the field of public administration. Countries such as the United States, Canada, Switzerland, Germany, Sweden, the Netherlands and others demonstrate vivid examples of their own success to all other states and are a good example for other states.

We believe that Ukraine definitely needs to make a considerable amount of organizational and structural changes and reforms in order to achieve the high global standards of public administration quality that currently exist.

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education. Teaching Public Administration, 39(1), 3-8. https://journals.sagepub.com/doi/full/10.117 7/0144739420963154.

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Chernivtsi: Tekhnodruk, http://www.irbisnbuv.gov.ua/cgibin/irbis_nbuv/cgiirbis_64.exe?Z21ID=&I21 DBN=REF&P21DBN=REF&S21STN=1&S 21REF=10&S21FMT=fullwebr&C21COM= S&S21CNR=20&S21P01=0&S21P02=0&S 21P03=A=&S21COLORTERMS=1&S21ST R=%D0%9D%D0%B8%D0%B6%D0%BD %D0%B8%D0%BA%20%D0%9D$ Obolenskyi, O. (2009, May 15-16). Predictors of a New Public Administration. Development of Public Administration on the Principles of Management: European Context: materials of scientific and practical conference.

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https://www.routledge.com/The-NewPublic-Governance-Emerging-Perspectiveson-the-Theory-andPractice/Osborne/p/book/9780415494632 Roll, M. (Ed.) (2014). The Politics of Public Sector Performance: Pockets of Effectiveness in Developing Countries.

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Zhytomyr: ZhNAEU. http://ir.znau.edu.ua/bitstream/123456789/8 495/1/Publichne_upravlinnia_2017.pdf Torneo, A.R. (2020). Public administration education in the Philippines 1951–2020: History, challenges, and prospects. Journal of Public Affairs Education, 26(2), 127–149. https://www.tandfonline.com/doi/abs/10.108 0/15236803.2020.1744066.

Tsybulnyk, N. Yu., Zadoia, I. I., Kurbatova, I. S., & Mekh, Yu. V. (2020). E-government within Public Administration. Jurnal Cita Hukum (Indonesian Law Journal), 8(3), 471478. doi: 10.15408/jch.v8i3.18300.

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New York. https://publicadministration.un.org/publicati ons/content/PDFs/World%20Public%20Sect or%20Report2019.pdf Wal, Z. (2013).

Mandarins Versus Machiavellians? On Differences Between Work Motivations of Administrative and Political Elites. Public Administration Review, 73(5), 749–759. https://onlinelibrary.wiley.com/doi/abs/10.1 111/puar.12089 Zimina, O. (2011). Formation and Development of Public Management and Possibilities of Its Application in Ukraine. Collection of scientific works of the National Academy for Public Administration under the President of Ukraine, 1, 37-46. http://www.irbisnbuv.gov.ua/cgibin/irbis_nbuv/cgiirbis_64.exe?I21DBN=LI NK&P21DBN=UJRN&Z21ID=&S21REF= 10&S21CNR=20&S21STN=1&S21FMT=A SP_meta&C21COM=S&2_S21P03=FILA= &2_S21STR=znpnadu_2011_1_6

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DOI: https://doi.org/10.34069/AI/2021.44.08.27 How to Cite: Loiko, V., Teremetskyi, V., Maliar, S., Rudenko, M., & Rudenko, V. (2021). Counteraction to offenses committed with the use of electronic payment systems: new challenges and problems. Amazonia Investiga, 10(44), 278-287. https://doi.org/10.34069/AI/2021.44.08.27

Critical infrastructure of the housing sector of the national economy: Economic and legal aspect Критична інфраструктура житлового сектора національної економіки: економічно-правовий аспект Received: July 19, 2021

Accepted: September 20, 2021

Written by: Valeriia Loiko110 https://orcid.org/0000-0003-3248-1585 Researcher ID: AAZ – 3619-2020 Vladyslav Teremetskyi 111 https://orcid.org/0000-0002-2667-5167 Researcher ID: Y-1755-2018 Stanislav Maliar112 https://orcid.org/0000-0003-3136-853X Mykola Rudenko113 https://orcid.org/0000-0002-9081-8716 Valentyna Rudenko114 https://orcid.org/0000-0001-9867-5951 Abstract

Анотація

The purpose of the study is to summarize the current state of the art in the economic and legal aspects of ensuring the functioning of critical infrastructure in the housing sector of the national economy and to substantiate proposals for its improvement. The study used general and special research methods: synergistic approach, trend statistical analysis method, economicmathematical modelling using Statgraphics XV&I Centurion program, logical method and generalization method. The main results of the study include. It has been concluded that housing and public utilities infrastructure is the largest consumer of resources in the world economy, so its operation and development require further research. The authors have defined the tendencies for increasing the volumes of construction works on the territory of Ukraine for the period of 2016-2020 and slow rate for increasing the construction of housing stock.

With the help of economic and mathematical modeling, the authors have obtained results of

Метою дослідження є узагальнення сучасного стану щодо економіко-правових аспектів забезпечення функціонування критичної інфраструктури в житловому секторі національної економіки та обґрунтування пропозицій щодо його покращення. В процесі дослідження використовувалися загальні та спеціальні методи дослідження: синергетичний підхід, метод трендового статистичного аналізу, метод економіко-математичного моделювання із використанням програми Statgraphics ХVІІI Centurion, логічний метод та метод узагальнення. Основними результатами дослідження є наступні. Зроблено висновок, що житлово-комунальна інфраструктура є найбільшим споживачем ресурсів у світовій економіці, тому її функціонування та розвиток потребують подальших досліджень. Визначено тенденції зростання обсягів будівельних робіт на території України за період 2016-2020 рр. та повільний темп зростання будівництва житлового фонду. За допомогою економіко-

110

Doctor of Science of Economics, Professor, Professor of the Department of Finance and Economics of the Boris Grinchenko Kyiv University, Kyiv, Ukraine.

111 Doctor of Law, Associate Professor, Western Ukrainian National University, Ternopil, Ukraine.

112 Postgraduate student of the Department of Finance and Economics, Boris Grinchenko Kyiv University Kyiv, Ukraine.

113 Postgraduate student of the Department of Management, Chernihiv Polytechnic National University, Kyiv, Ukraine.

114 Postgraduate student of the Department of Finance and Economics, Boris Grinchenko Kyiv University Kyiv, Ukraine.

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the forecast of the volume of commissioning of the total area of residential buildings in Ukraine.

Based on the analysis of the dynamics of emergencies in residential buildings or constructions in Ukraine for the period of 20152020, the authors have made a conclusion on the need to implement measures on preventing emergencies. Critical infrastructure facilities within the residential sector of the national economy include both enterprises in the field of water supply, sewerage, production, transportation and marketing of heat and electricity, gas distribution and transportation and water heating and gas supply networks in residential buildings, as well as elevators and networks that provide communication.

Keywords: housing sector, critical infrastructure, human life and activities, needs, protection, security, legislation, monitoring.

математичного моделювання отримано результати прогнозу обсягів введення в експлуатацію загальної площі житлових будинків в Україні. На основі проведеного аналізу динаміки виникнення надзвичайних ситуацій у будівлях або спорудах житлової призначеності території України за період 2015-2020 рр. зроблено висновок щодо необхідності запровадження заходів щодо попередження виникнення надзвичайних ситуацій. До об’єктів критичної інфраструктури у житловому секторі національної економіки віднесено як підприємства у сфері водопостачання, водовідведення, виробництва, транспортування та збуту теплової і електричної енергії, розподілу та транспортування газу так і мережі водо- тепло – та газопостачання у житлових будинках, а також ліфти та мережі, які забезпечують зв'язок. Ключові слова: житловий сектор, критична інфраструктура, життєдіяльність людини, потреби, захист, безпека, законодавство, моніторинг.

Introduction There is quite a relevant issue for the current economic situation in Ukraine – it is the issue what one should exactly refer to critical infrastructure: facilities, kinds of activities, certain territories, content of information messages or something else. Each country defines critical infrastructure facilities and the ways to protect them according to own legislation. The definition of the concept of “critical infrastructure” In Ukraine is only provided in the Law of Ukraine “On the Basic Principles of Cyber Security of Ukraine” (Law No 2163-VIII? 2021). The relevant legislation on critical infrastructure protection has not been adopted in Ukraine yet. When discussing the issues what exactly should be attributed to critical infrastructure and how to protect critical infrastructure, the scholars, politicians, military officers and journalists make many suggestions.

In particular, foreign and Ukrainian speakers at the Lviv Security Forum made various propositions on what exactly should be attributed to the critical infrastructure (Grigorieva S. 2019).

However, all speakers were inclined to believe that each state should independently identify critical infrastructure for its country and develop and approve legislation to protect it. Experts in Ukraine just begin to pay attention to the issues of economic and legal aspects of identifying, protecting and safe operation of critical

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infrastructure both in research and practice areas.

Thus, it is advisable to continue research on this problematic issue.

Literature Review A limited number of research papers is focused on the current economic and legal aspects of the critical infrastructure of the housing sector. It is a bright confirmation that the topic of critical infrastructure, in particular in the housing sector of Ukraine’s economy, is new and relevant for conducting research.

Legal aspects of protecting critical infrastructure of the housing sector as a component of improving administrative and legal provision of relations in the field of housing and public utility services, are substantiated in the works of V. Teremetskyi (Teremetskyi, V.I, 2017a, 2020).

The problems of restoring the housing rights of children, internally displaced persons and other categories of people have been considered in the work of Teremetskyi V. (Teremetskyi, V.I., 2017b). The article by V. Teremetskyi, O. Avramova, O. Svitlychnyy, V. Sloma, O. Bodnarchuk, A. Telestakova, V. Kokhan is focused on the issues of protecting housing rights as the basis for the formation of critical infrastructure’s safe functioning in the housing

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280 sector of Ukraine (V. Teremetskyi, O. Avramova, O. Svitlychnyy, V. Sloma, O. Bodnarchuk, A.Telestakova, V. Kokhan, 2021). Identification of critical infrastructure facilities in the housing sector of the national economy is related to the formation of requirements for housing in Ukraine, which have been studied within historical and legal aspect in the article prepared by Stefanchuk, A. Muzyka, M. Stefanchuk, O. Cherniak, N. Rudyi, I. Meshchan (M. Stefanchuk, A. Muzyka, M. Stefanchuk, O. Cherniak, N. Rudyi, I. Meshchan, 2021). The papers of such Ukrainian scholars as Biryukov, D.S., Kondratov, S.I. (Biryukov, D.S., Kondratov, S.I., 2012; Biryukov, D.S., 2015) and foreign scholars as Stergiopoulos, G., Kotzanikolaou, P., Theocharidou, M. and Gritzalis, D. (Stergiopoulos, G., Kotzanikolaou, P., Theocharidou, M. and Gritzalis, D., 2015) are focused on studying the essence of the concepts of “critical infrastructure” and “critical infrastructure facilities”. The legal and organizational aspects of ensuring the sustainability of critical infrastructure in Ukraine are under the focus of the analytical report of the authors Bobro D.G., Ivanyuta S.P., Kondratov S.I., Sukhodolya O.M. (Bobro D.G., Ivanyuta S.P., Kondratov S.I., Sukhodolya O.M.] / for the general. ed. O.M. Sukhodolya, 2015). Analysis of the level of provision by regulatory legal acts in the legislative base of Ukraine regarding the identification and protection of critical infrastructure has been carried out in the scientific work of Ukrainian scholars Loiko V., Khrapkina V., Maliar S., Rudenko M. (Loiko V., Khrapkina V., Maliar S., Rudenko M., 2020).

Given the fact that scientific research, the results of which are already published in the scientific literature, were mostly about economic and legal aspects of critical infrastructure in general in the national economy of the country, then it is advisable to pay attention to a more narrow area of the research, namely the economic and legal aspects of the functioning of critical infrastructure in the housing sector of the national economy.

Methodology Analysis of the problem of economic and legal provision for the functioning of the critical infrastructure of the housing sector of the national economy involves the use of several leading approaches. Synergetic is one of the approaches. It combines the results of the research in the economic and legal spheres to determine the priority while identifying critical infrastructure facilities of the housing sector of

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the national economy. Economic and mathematical methods and forecasting methods have been also used in the research. To study the tendencies in dynamic processes, namely changes in the volume of construction and the volume of setting housing in operation, the method of trend statistical analysis has been used in Ukraine over the years. To establish the interdependence of changes in the volume of commissioned housing on the volume of construction, the Statgraphics XVIII Centurion Statistical Analysis Program was used.

Forecasting of changes in the volume of commissioning of the total area of residential buildings has been carried out with the help of the same Program. The method of comprehensive statistical analysis has been used while analyzing the dynamics of emergencies in buildings or constructions of residential purpose in Ukraine. Methods of analysis and synthesis have been used while analyzing the essence of the norms of law related to critical infrastructure in Ukraine. The logical method and the method of generalization have been used in order to analyze the data, legislative acts of Ukraine and to form own conclusions.

Results and Discussion The quick growth of the demand for housing is caused by the rapid pace of urbanization in all countries of the world and namely, in Ukraine.

Accumulation of the volume of housing construction taking into account modern requirements for the comfort of living increases the provision of public utility services (electricity, heating, water supply and drainage, communications and Internet, garbage disposal), which increases the volume of resources used.

According to the conducted research, most of the resources that enter the economy and, in particular, the housing and public utility services sector, are used by society during the year and are short-lived products. The volume of resources spent on utilities and can be attributed to nondurable products, is 52.6 billion tons annually (Haffmans et al, 2018). The materials used for building residential houses and their infrastructure are considered long-term stocks, the shelf life of which expires over decades. 48 billion tons annually are those resources that function in the economy in the form of buildings, infrastructure and capital equipment (Wiedenhofer D., Fishman T., Lauk C., Haas W., Krausmann F., 2019; Bakker et al., 2014).

Annually 38.8 billion tons of depleted resources are spent to meet the social needs of mankind to develop and maintain the proper state of housing and public utility infrastructure (Haffmans et al,

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2018). Housing and public utility infrastructure is the largest consumer of resources in the world economy.

volume of the total area of commissioned residential buildings for the period 2016 - 2020 (Table 1) allowed us to draw the following conclusions.

The analysis of the dynamics of the volume of construction work performed in Ukraine and the Table 1.

Dynamics of the volume of construction work performed and the volume of housing commissioned in Ukraine for the period 2016-2020

Indicator

2016

2017

2018

2019

2020

Deviation of 2020 data from 2016 data, %

Volumes of construction work Growth of 73726,9 105682,8 141213,1 181697,9 202080,8 performed, UAH 2,74 times million Volumes of construction of Growth of 18012,8 23730,0 29344,8 32208,8 29083,6 residential buildings, 1,61 times UAH million The share of construction of residential buildings in 20,26 22,45 20,78 17,72 14,39 - 5,87 the total volume of construction works,% Indices of construction products, in% to the 128,18 143,34 133,62 128,67 105,6 - 22,58 previous year The total area of residential buildings put 9367,0 10206,0 8689,36 11029,32 5749,92 - 38,62 into operation, thousand м2 Source: compiled by the authors according to the data (Statistical information. Official site of the State Statistics Service of Ukraine, 2021) The volume of construction works in Ukraine for the period 2016-2020 within cost measurement increased by 2.74 times. Growth volumes of housing construction were much slower and increased by only by 1.61 times during the researched period. The share of residential buildings in the total volume of construction works during the researched period decreased by 5.87%. It should be noted that the share of construction of residential buildings within cost measurement in 2020 amounted to only 14.39% of the total volume of construction works in Ukraine, which is a low indicator. The growth rate of construction output slowed down by 22.58%. The total area of residential buildings put into operation decreased by 38.62% over the same period. The tendency observed in the Ukrainian economy over the past five years, namely, the decline in housing construction in Ukraine and the decline in the share of housing construction in the total volume of construction

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works, may lead to social problems in the country.

Construction in general and the construction of residential buildings, in particular, as an economic activity, is a comprehensive complementary system with many internal relationships, so the study of this system and the establishment of mathematical dependences should be carried out by using special mathematical packages by multidimensional statistical analysis. The statistical analysis program Statgraphics XVIII Centurion was used to establish mathematical dependences and to build predictive models.

According to the conducted research, it was concluded that the volume of commissioning of the total area of residential buildings is not directly dependent on the growth rate of construction works (Table 2).

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282 Table 2.

The results of the study of the total area of residential buildings, which were put into operation from the total area of construction works in Ukraine for the period 2000 - 2020.

Name of the dependence

Established dependence

Dependence of the volume of commissioning of the total area of residential buildings from the volume of construction works Dependence of GDP volumes generated in the consumer sector of the economy from the household disposable income

Commissioning of the total area = 1 / (0,0000782015 + 1,63035 / volume of construction works) GDP volume in the consumption = exp (4,15283 + 0,915146 * ln (household disposable income)

The situation of declining housing construction volumes is explained by the presence of the “frozen” or not put into operation residential buildings for various reasons (Loiko, V.V., Maliar, S.A., Rudenko, M.V., 2020). One of the reasons for the decline in housing construction volumes is the decline in the purchasing power of the population and the slowdown in the rate of housing purchase. According to the established interdependence of GDP volumes generated in the consumer sector of the economy and the volumes of the household disposable income (Table 2), one can state that the decline in household income slows down the rate of purchase of all types of goods and housing, in particular. With the decline of the household disposable incomes, the population starts to buy only basic necessities, namely food, clothing, footwear, communications and emergency medical services (Loiko, D.M., Rudenko, V.S., 2020). In terms of limited financial resources in Ukrainian families the debt for public utility services increases, as evidenced by the statistical information of Ukraine. The growth of the household disposable income will contribute to the revival of the real estate market of the residential sector and will strengthen social

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Correlation coefficient

Confidence probability,%

Degree of influence of the argument on the change of the function,%

0,900153

95,0

96,89

0,972515

95,0

94,57

security as a factor of sustainable development of the country.

Using the Statgraphics XVIII Centurion statistical analysis program we have defined the best model for predicting possible further changes in the “commissioning volume of the total area of residential buildings”, which is described by the “exponential tendency” (2): exp (216734 + 0,00341451 t) (2) Graphical interpretation of this model demonstrates that the best forecast of future data for “commissioning of the total area of residential buildings” is given by the exponential regression curve, which corresponds to all previous statistics (Fig. 1). The result summarizes the statistical significance of the terms within the forecasting model. P values less than 0.05 are statistically significantly different from zero at the 95.0% confidence level. Thus, it can be stated that there will be the projected increase in the volume of commissioning of residential buildings, which should require an increase in resources.

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Time Sequence Plot for Commissioning of the total area Exponential trend = exp(8,73491 + 0,0306537 t)

Commissioning of the total area

(X 10000,0) 3 actual forecast 95,0% limits

2,5 2 1,5 1 0,5 0 0

10

20

30

40

Fig. 1. Graphical interpretation of the forecast of commissioning volumes of the total area of residential buildings.

Source: original development.

The level of residential penetration per one Ukrainian resident was not changed during the period 2016-2002 and averaged 16 m2 per man.

The average level of providing square meters per one inhabitant of the country in residential buildings is much higher In European countries: one inhabitant of Lithuania has 30.9 m2 of living space, in Finland – 36.2 m2, in Germany – 39.4 m2, in Denmark – 54.4 m2, in Poland – 24.7 m2.

The existing housing stock of Ukraine needs significant amounts of repair and reconstruction works. According to experts, the volume of residential buildings in need of major repairs is 72 million m2. This significant amount of repair works requires a significant volume of resources.

The constant lack of funds in the public utilities services of cities and villages of Ukraine leads to further destruction of the housing stock and bringing it to a state of impossibility of further operation. The category of dilapidated and emergency residential buildings in Ukraine includes 45,539 houses with a total area of 4,305,154 m2, which is 0.30%, where 59,749 residents live permanently (Statistical information, 2021). It should be noted that

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communications also need major repairs. The constant lack of funds and untimely repairs of communication networks of residential buildings leads to the loss of water, heat, destruction of buildings, unauthorized discharge of sewage and increased costs of residents to provide their own living conditions. According to the conducted research, the annual intake of clean drinking water over the past 20 years has increased on average 1.6 times in the world, from 2.5 to 3.9 thousand km3 per year (Food and Agriculture Organization of the United Nations, 2016). 11% of the total intake of clean drinking water goes for the needs of the housing and public utility sector, which is a significant amount in the global economy.

Lack of funds and late maintenance, as well as overhaul of housing and communications leads to emergencies and significant losses of financial resources. Analysis of the dynamics of emergencies in residential buildings or structures in Ukraine for the period 2015-2020 (Table 3) provided an opportunity to make the following conclusions.

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283

284 Table 3.

Dynamics of emergencies in residential buildings or structures on the territory of Ukraine for the period 2015-2020 Years Name of the indicator

2015

2016

2017

2018

2019

2020

Deviation 2020 data from 2015 data, %

The total number of emergencies of man63 56 50 48 60 47 - 25,39 made nature Including: 40 36 22 22 27 26 - 35,0 - due to fires, explosions - in residential buildings 13 or constructions 30 29 14 17 13 - 56,67 - due to the sudden destruction of buildings 2 4 4 0 4 4 It is doubled and constructions - due to accidents in power systems 1 1 2 1 3 0 - 100,0 - due to accidents in life support systems 5 4 7 5 10 4 - 20,0 - due to the presence of harmful or radioactive substances in the air above the maximum 1 0 1 2 3 0 - 100,0 permissible concentration People died as a result of emergencies of man242 152 134 115 164 170 - 29,75 made nature People injured as a result of emergencies of 962 165 85 89 142 305 - 68,30 man-made nature Financial damage, UAH Increased 532,72 265,31 896,8 496,97 1626,73 9916,68 million 18,62 times Source: compiled by the authors according to the data (Official site of the State Service of Ukraine for Emergencies (2021a). Information and analytical report on the occurrence of emergencies in Ukraine during 2016; Official site of the State Service of Ukraine for Emergencies (2021b). Information and analytical report on the occurrence of emergencies in Ukraine during 2017; Official site of the State Service of Ukraine for Emergencies (2021c). Information and analytical report on the occurrence of emergencies in Ukraine during 2018; Official site of the State Service of Ukraine for Emergencies (2021d). Information and analytical report on the occurrence of emergencies in Ukraine during 2019; Official site of the State Service of Ukraine for Emergencies (2021e). Information and analytical report on the occurrence of emergencies in Ukraine during 2020).

The total number of man-made emergencies in Ukraine for the period of 2015-2020 has a positive tendency to decrease by 25.39%.

Namely, the number of emergencies due to fires and explosions has decreased by 35.0% during the researched period. The number of emergencies in residential buildings or structures has decreased by 56.67%. The number of emergencies due to the sudden destruction of buildings has doubled and amounted to 4 cases in 2020; due to accidents in power systems has tripled in 2019 and amounted to 3 cases, and in 2020 – 0 cases; due to accidents in life support

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systems has doubled and amounted to 10 cases in 2019 and 4 cases in 2020; due to the presence of harmful or radioactive substances in the air above the maximum allowable concentration has tripled and amounted to 3 cases in 2019 and 0 cases in 2020. The dynamics of the number of people, who died as a result of the emergency situation is positive, the number of such cases has decreased by 29.75%. The dynamics of the number of people affected by the emergency situation is also positive; the number of cases has decreased by 68.30%. The dynamics of the volume of financial damage caused to the economy of

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Ukraine due to emergencies of man-made nature is negative; the volume of financial damage has increased by 18.62 times. A significant number of emergencies, which lead to both significant financial damage and the loss of health or ability to work of people after emergencies, require increased attention in regard to the use of preventive measures to prevent such situations.

Persons affected by emergencies must apply to the authorities and local self-government agencies at their place of residence for a certificate confirming their status. Such a certificate gives them the right to compensation for damages. For example, if housing is destroyed as a result of an emergency, state authorities and local self-government agencies decide to solve housing problems at the expense of the reserve fund of the budget (they provide monetary compensation or buy other housing).

Victims may be temporary provided with accommodation, in particular, premises allocated to the interim housing or reserve fund.

Unfortunately, there are very few such premises even in the city of Kyiv and they are usually in unsatisfactory sanitary conditions.

Local self-government agencies may also decide to provide other types of assistance (wounded, relatives of the dead, injured). In addition, there are social programs in the cities, when citizens who find themselves in difficult life circumstances can be provided with assistance.

However, this problem must be addressed comprehensively. The new Law of Ukraine “On Housing and Public Utility Services” provides responsibility insurance of the manager for damages caused to property by co-owners of houses due to improper performance of duties.

The introduction of compulsory insurance by responsibility service providers will help to relieve the burden on the state and local budgets, at the expense of which compensation is paid, and will provide fast and full compensation for damages caused to victims.

There is no exhaustive list of facilities in Ukraine that need to be classified as critical infrastructure and there is virtually no legislation on their handling. At the same time, the Procedure for the formation of the list of information and telecommunication systems of critical infrastructure facilities of the state was approved on August 23, 2016 by the Resolution of the Cabinet of Ministers of Ukraine No. 563. It provides the definition to critical infrastructure as “a set of state infrastructure facilities that are most important for economy and industry, the functioning of society and security of the

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population, the lay-up or destruction of which may affect national security and defense, the environment, may lead to significant financial losses and human toll” (Resolution of the Cabinet of Ministers of Ukraine № 563, 2016). Although the Decree has expired, the above definition of critical infrastructure is relevant.

Infrastructure is understood as “the set of fundamental facilities and systems that support the sustainable functionality of households and firms. Serving a country, city or other area, including the services and facilities necessary for its economy to function. The physical components of interrelated systems providing commodities and services essential to enable, sustain, or enhance societal living conditions” (Zavadsky, J.S., Osovskaya, T.V., Yushkevich, O.O., 2006).

According to the Law of Ukraine “On Basic Principles of Ensuring Cyber Security of Ukraine”, critical infrastructure facilities can include “enterprises, institutions and organizations regardless of the form of ownership that provide services in the spheres of life support, in particular in the spheres of centralized water supply, sewerage, electricity supply and gas, food production, agriculture, health care; are public utilities, emergency and rescue services, emergency services” (Law No 2163-VIII, 2021).

Threats to the critical infrastructure of the housing and public utilities sector of the national economy can be considered not only in terms of their origin, but also the elements of the critical infrastructure, to which these threats are directed to: physical elements, management systems, communication systems, personnel of critical infrastructure facilities.

Conclusion It can be concluded that the critical infrastructure facilities in the housing and public utilities sector of the national economy include both enterprises in the field of water supply, sewerage, production, transportation and sale of heat and electricity, gas distribution and transportation and elevators in residential buildings and networks of water and heat and gas supply, as well as networks that provide communication.

The lack of special legislation, in particular criminal liability for failure of owners and managers of critical infrastructure to fulfill their obligations for its smooth operation and purposeful use, leads to threats to the population.

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286 It is necessary to develop and adopt the Law of Ukraine “On Critical Infrastructure”, to amend the current Laws of Ukraine “On Privatization of State and Municipal Property”, “On the State Property Fund”, to amend antitrust legislation, the Criminal Code of Ukraine. The purpose of legislative amendments should be the provision of state control over critical infrastructure; the prevention of managers of critical infrastructure from abusing their capabilities to the detriment of people; the prevention of control of other countries over strategic facilities of Ukraine.

Bibliographic references Bakker et al. (2014) Products That Last – product design for circular business models. TU Delft Library/Marcel den Hollander IDRC. Biryukov, D.S., & Kondratov, S.I. (2012) Critical infrastructure protection: problems and prospects for implementation in Ukraine.

Analytical report, NIDS, Kyiv, Ukraine.

Retrieved June 13, 2021, from https://niss.gov.ua/sites/default/files/201209/zah_ynfrastr-b98c0.pdf Biryukov, D.S. (2015). Protection of critical infrastructure in Ukraine: from scientific understanding to the development of policy principles. Scientific and information bulletin of the Academy of National Security, 3-4, pp. 155-170. Retrieved June 13, 2021, from http://nbuv.gov.ua/UJRN/nivanb_2015_34_14 Biryukov, D.S., Kondratov, S.I., Nasvit, O.I., Sukhodolia, O.M. (2015). Green Paper on Critical Infrastructure Protection in Ukraine.

Kyiv: National Institute for Strategic Studies.

Bobro, D.G., Ivanyuta, S.P., Kondratov, S.I., & Sukhodolya, O.M. (2015). Organizational and legal aspects of security and sustainability of critical infrastructure of Ukraine: analytical report / for the general. ed. OM Sukhodoli. Kyiv, Ukraine: NIDS. Retrieved June 14, 2021, from https://niss.gov.ua/sites/default/files/201905/Dopov_Suchodolya_print.pdf Food and Agriculture Organization of the United Nations. (2016). AQUASTAT database.

Retrieved June 14, 2021, from: http://www.fao.org/nr/water/aquastat/data/qu ery/index.html?lang=en Grigorieva, S. (2019). The critical infrastructure of Ukraine was discussed at the Lviv Security Forum. LMR. Received on June 4, 2021, from: https://cityadm.lviv.ua/news/society/publicsector/272033-na-lvivskomu-bezpekovomuforumi-obhovoryly-krytychnuinfrastrukturu-ukrainy

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Haffmans et al. (2018). Products that Flow: Circular Business Models and Design Strategies for Fast Moving Consumer Goods.

BIS Publishers.

Law No 2163-VIII, 2021. On the basic principles of cybersecurity in Ukraine: Retrieved May 12, 2021, from https://zakon.rada.gov.ua/laws/show/216319#Text Loiko, V.V., Khrapkina, V.V., Maliar, S.A., & Rudenko, M.V. (2020). Economic and legal principles of critical infrastructure protection.

Financial and credit activities: problems of theory and practice, 4(35), pp. 426-438.

Loiko, V.V., Maliar, S.A., & Rudenko, M.V. (2020). Methodical tools for analyzing the current state and assessing the prospects for the development of housing in Ukraine.

Global science and education in the modern realities. International scientific conference, August 26-27, Seattle, Washington, USA, pp.

189-192.

Loiko, D.M., & Rudenko, V.S. (2020).

Development of the consumer sector of the economy as a factor in ensuring the social security of the country. Global science and education in the modern realities.

International scientific conference, August 26-27, Seattle, Washington, USA, pp. 202-205.

Resolution of the Cabinet of Ministers of Ukraine No 563, 2016. About the statement of the Order of formation of the list of information and telecommunication systems of objects of a critical infrastructure of the state: Retrieved June 12, 2021, from: https://zakon.rada.gov.ua/laws/show/5632016-%D0%BF#Text State Service of Ukraine for Emergencies (2021a) Information and analytical report on the occurrence of emergencies in Ukraine during 2016. Retrieved June 11, 2021, from: https://www.dsns.gov.ua/ua/Dovidka-zakvartal/57279.html State Service of Ukraine for Emergencies (2021b) Information and analytical report on the occurrence of emergencies in Ukraine during 2017. Retrieved June 11, 2021, from: https://www.dsns.gov.ua/ua/Dovidka-zakvartal/72899.html State Service of Ukraine for Emergencies (2021c). Information and analytical report on the occurrence of emergencies in Ukraine during 2018. Retrieved June 11, 2021, from: https://www.dsns.gov.ua/ua/Dovidka-zakvartal/87968.html State Service of Ukraine for Emergencies (2021d). Information and analytical report on the occurrence of emergencies in Ukraine

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during 2019. Retrieved June 12, 2021, from: https://www.dsns.gov.ua/ua/Dovidka-zakvartal/103179.html State Service of Ukraine for Emergencies (2021e). Information and analytical report on the occurrence of emergencies in Ukraine during 2020. Retrieved June 12, 2021, from: https://www.dsns.gov.ua/ua/Dovidka-zakvartal/119288.html Stefanchuk, M., Muzyka, A., Stefanchuk, M., Cherniak, O., Rudyi, N., & Meshchan, I. (2021) Formation of Requirements for Housing in Ukraine: Historical and Legal Research. Journal of Legal, Ethical and Regulatory Issues, Vol. 24, Special Issue 1.

Retrieved June 14, 2021, from https://www.abacademies.org/journals/journ al-of-legal-ethical-and-regulatory-issueshome.html Stergiopoulos, G., Kotzanikolaou, P., Theocharidou, M. and Gritzalis, D. (2015).

Risk mitigation strategies for critical infrastructures based on graph centrality analysis, International Journal of Critical Infrastructure Protection, vol. 10, pp. 34-44.

Retrieved June 13, 2021, from https://reader.elsevier.com/reader/sd/pii/S18 74548215000414?token=65ECADC327815 186FE93B44413C7467859E81956F0DFB4 812BCD14C41606E7EE4DB413C2BA2F75 84DA88278E90BAAF22&originRegion=eu -west-1&originCreation=20210913075736 Teremetskyi, V.І. (2017a). Problems of legal support of relations in the field of residential real estate taxation. Scientific notes of Tavriya National University named after VI

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Vernadsky. Series: Legal Sciences, Vol. 28 (67). Is. 1, pp. 47-57.

Teremetskyi, V.І. (2017b). Problems of restoring the housing rights of children who lost their homes in the area of anti-terrorist operation.

Bulletin of Mariupol State University. Series: Law. Mariupol: MSU, Vol. 13, pp. 8-13.

Teremetskyi, V.І. (2020). Improving the administrative and legal support of relations in the field of housing and communal services. Actual problems of law. 2, pp. 59-64 Retrieved June 4, 2021, from http://app.wunu.edu.ua/wpcontent/uploads/2020/05/2_2020.pdf Teremetskyi, V., Avramova, O., Svitlychnyy, O., Sloma, V., Bodnarchuk, O., Telestakova, A., & Kokhan, V. (2021). Housing Rights Protection in the Context of Legislation and Judicial Practice of Ukraine. Journal of Legal, Ethical and Regulatory Issues, Vol. 24, Special Issue 1. Retrieved June 12, 2021, from https://www.abacademies.org/journals/journ al-of-legal-ethical-and-regulatory-issueshome.html Wiedenhofer D., Fishman T., Lauk C., Haas W., & Krausmann F. (2019). Integrating material stock dynamics into economy-wide material flow accounting: concepts, modelling, and global application for 1900-2050. Ecological economics, Is.156, Pp. 121-133.

Zavadsky, J.S., Osovskaya, T.V., Yushkevich, O.O. (2006). Economic dictionary. Kyiv: Condor, 2, p. 119. Retrieved June 12, 2021, from: http://library.nlu.edu.ua/POLN_TEXT/KNI GI/KONDOR/EKONOMIC_SL_2006.pdf

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DOI: https://doi.org/10.34069/AI/2021.44.08.28 How to Cite: Rudyi, N., Makarchuk, V., Zamorska, L., Zdrenyk, I., Prodan, I. (2021). Democratic state-legal regime: Twenty-First Century threats. Amazonia Investiga, 10(44), 288-294. https://doi.org/10.34069/AI/2021.44.08.28

Democratic state-legal regime: Twenty-First Century threats ДЕМОКРАТИЧНИЙ ДЕРЖАВНО-ПРАВОВИЙ РЕЖИМ: ЗАГРОЗИ ХХІ СТ.

Received: July 13, 2021

Accepted: September 15, 2021

Written by: Nazar Rudyi115 https://orcid.org/0000-0001-7338-4867 Volodymyr Makarchuk116 https://orcid.org/0000-0001-5441-0468 Lubov Zamorska117 https://orcid.org/0000-0001-9723-2219 Ivanna Zdrenyk118 https://orcid.org/0000-0002-8645-0701 Iryna Prodan119 https://orcid.org/0000-0001-6435-6434 Abstract

Анотація

The article deals with the democratic state-legal regime in the light of the twenty-first century threats. It is noted that the presence of formal features of a democratic regime does not always ensure the functioning of such mechanisms and institutions of democracy as the division of power, freedom of speech and assembly, fair elections and others.

The main internal and external destructive elements influencing both settled and developing liberal-democratic regimes are determined.

Emphasis is placed on the destructive activities of the Russian Federation in destroying and discrediting the basic institutions of liberal democracies and popularizing the China model of an undemocratic state-legal regime. The influence of scientific and technological progress, political, social, economic, environmental and military factors on the transformation of liberal-democratic regimes and the world global order is revealed. The danger (for the whole liberal-democratic world in general and Ukraine in particular) of the use of such a phenomenon as "hybrid war" by the Russian Federation in the context of the spread

У статті йдеться про демократичний державноправовий режим у світлі загроз ХХІ століття. Зазначається, що наявність формальних особливостей демократичного режиму не завжди забезпечує функціонування таких механізмів та інститутів демократії, як поділ влади, свобода слова та зборів, чесні вибори та інше. Визначено основні внутрішні та зовнішні деструктивні елементи, що впливають як на сталі, так і ті що розвиваються ліберальнодемократичні режими. Акцентовано увагу на руйнівній діяльності Російської Федерації щодо знищення та дискредитації основних інститутів ліберальних демократій та популяризації китайської моделі недемократичного державно-правового режиму. Розкрито вплив науково-технічного прогресу, політичних, соціальних, економічних, екологічних та військових факторів на трансформацію ліберальнодемократичних режимів та світового порядку. Вказується на небезпеку (для всього ліберально-демократичного світу загалом та України зокрема) використання такого явища,

115

PhD, Associate Professor, Professor at the Department of Theory of Law, Constitutional and Private Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

116 Doctor of Law, Professor, Professor of the Department of Theory and Philosophy of Law, Constitutional and International Law, Institute of Jurisprudence, Psychology and Innovative Education of Lviv Polytechnic National University, Lviv, Ukraine.

117 Doctor of Law, Associate Professor, Associate Professor of the Department of Theory of Law and Human Rights, Yurii Fedkovych Chernivtsi National University, Chernivtsi, Ukraine.

118 PhD, Associate Professor at the Department of Theory of Law, Constitutional and Private Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

119 Postgraduate of the Department of Theory of Law and Human Rights, Yurii Fedkovych Chernivtsi National University, Chernivtsi, Ukraine.

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of the fascist concept of "Russian world" is pointed out.

It is proved that there is the need to preserve a liberal-democratic state-legal regime, as the most successful of all regimes offered to humanity, for future generations.

Key words: democratic regime, digital dictatorship, form of state-legal regime, hybrid war, illiberal democracy, liberal-democratic regime, rule of law, state, world order.

як «гібридна війна» Російською Федерацією в контексті поширення фашистської концепції «російського світу». Доведено, що існує необхідність збереження ліберально-демократичного державноправового режиму, як найуспішнішого з усіх режимів створених людством, для майбутніх поколінь. Ключові слова: держава, форма державноправового режиму, світовий порядок, гібридна війна, верховенство права, демократичний режим, ліберально-демократичний режим, неліберальна демократія, цифрова диктатура.

Introduction The theory and philosophy of law defines the form of the state regime as a manner (order) of exercising state power by certain methods. A clear division of all states according to the form of state regime into democratic and undemocratic is established (Rabinovych, 2021). In the twentieth century, the struggle for world domination was waged by liberal-democratic (as the most progressive and widespread among democratic regimes), communist, and fascist (national socialist as its variety) regimes. As a result of the Second World War, fascism and Nazism were finally eliminated as a phenomenon, and its manifestations in the state and legal sphere were condemned and banned.

After the collapse of the USSR as the main world leader of the communist regime in 1991, unfortunately, a proper international legal assessment of its criminal activities was not given, and it continued to exist in one form or another in some states (China, North Korea, Cuba). But the idea has taken root in the world that the liberal-democratic regime remained the only viable mechanism for building a state of general peace and prosperity.

In his conceptual work "The End of History and the Last Man in 1992", Francis Fukuyama (1992) actually ascertained the victory of the liberaldemocratic regime over the undemocratic – fascist and communist ones. This meant that states, which wanted to achieve a high standard of living and freedoms of their citizens, had only one path left, namely through the development of democracy, the rule of law, civil society and market economy.

Thus, the number of countries that can be considered electoral democracies in the mid2000s increased to more than 110 (in the early 1970s there were about 35 countries). Liberal

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democracy has become the standard state-legal regime for most of the world, if not in practice, then at least as an aspiration. Samuel Huntington (1993) called it the "third wave" of democratization. At the same time, you need to understand that the form of political regime cannot be established by analyzing the content of constitutional regulation, as even in the case of its full legal form (for example, declaring a democratic state in the constitution), the real political regime is often inadequate legally declared (Shemshuchenko, 1998). In 1997, Fareed Zakaria (1997) used the term illiberal democracy for such states. That is, the presence of formal features of a democratic regime does not always ensure the functioning of such mechanisms and institutions of democracy as the division of power into legislative, executive and judicial, freedom of speech and assembly, and others.

The purpose of the article is to determine the advantages of the liberal-democratic regime, to assess its current state and prospects for development. The authors pay great attention to hybrid, illiberal democracies and undemocratic regimes and their threats to classical liberaldemocratic regimes. There is an urgent need to classify the factors that cause the transformation of liberal-democratic regimes in the twenty-first century and to analyze the consequences of the impact of these factors both on individual states and the world order.

Theoretical Framework or Literature Review Many researchers have worked on the problems of establishing a democratic regime in the world, among whom Francis Fukuyama (1992) played a significant role in this process. In his conceptual work "The End of History and the Last Man in 1992", Francis Fukuyama (1992) actually

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290 ascertained the victory of the liberal-democratic regime over the undemocratic – fascist and communist ones. An important contribution to the standards of liberal democracy was the scientific work of Samuel Huntington (1993), who, studying state-legal regimes for most countries, called them the "third wave" of democratization. In 1997, Fareed Zakaria used the term "illiberal democracy" in his writings.

Yuval Noah Harari (2018) demonstrated the problems of slipping into undemocratic regimes, using the examples of such countries as Turkey and Russia, pointing out that they are openly moving towards dictatorship. China skillfully exploits the open markets of liberal democracies, although it is against any democratic changes within the country, and the US and EU, as leaders of the liberal-democratic world, are experiencing a crisis due to Brexit and the presidency of Donald Trump.

Niall Ferguson (2020) in his work "The Great Degeneration: How Institutions Decay and Economies Die" points to the serious structural problems of liberal-democratic regimes that have affected such basic institutions as democracy (electors vote for governments that increase public debt, which violates the principle of "generational partnership"), capitalism (a complex market regulation system, which does not protect against crises and even generates them), the rule of law (threat of a police state, interference of European law in common law, increasing complexity of common law, rising cost of legal services and forming the "rule of lawyers") and civil society.

Considering liberal-democratic regime, George Soros (2021) uses the term "open society" and emphasizes the rapid development of artificial intelligence and machine learning, which has created tools of social control that give repressive regimes their inherent advantage over open societies. For dictatorships, these are useful tools, but for open societies they are deadly.

The scientific works of Timothy Snyder (2020) are also of great importance in the field of identifying threats to liberal-democratic regimes.

In particular, it is about Putin's use of Ivan Ilyin's fascist ideology in building an authoritarian model of the state regime in Russia.

Methodology The methodological basis of the scientific research of a democratic state-legal regime consists of a set of philosophical, general and

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special scientific methods of obtaining scientific knowledge. In particular, the following methods were used in the article: dialectical method, hermeneutic method, method of system and structural analysis, methods of analysis and synthesis, functional, formal-legal, theoreticallegal, historical-legal methods and modeling method. An important emphasis in the research process was made on the method of comparative legal analysis, which made it possible to clarify the peculiarities of the development of state-legal regimes in different countries.

The method of analysis of scientific articles, monographs, encyclopedias and other documents and sources contributed to collect and organize the most relevant information on certain topic.

With the help of the method of observation it was possible to study the peculiarities of the development of the liberal-democratic state-legal regime in the twenty-first century.

Results and Discussion The spread of the democratic regime, often in its illiberal forms, has had an remarkable effect. The pace of international trade and investment was ahead of world GDP growth. Between 1970 and 2008, world production of goods and services quadrupled, and this growth occurred in almost all regions. The number of people living in poverty in developing countries fell from 42% of the total population in 1993 to 17% in 2011 (Fakuyama, 2020). That is, the level of wellbeing, education, medicine and security increased many times around the world. The report of a group of researchers from 50 countries was published in "The Lancet", one of the most authoritative medical journals, which demonstrated that in 1990 to 2010, mortality from overeating and obesity exceeded mortality from starvation. This is the first time in human history!

It would seem that after such great achievements of democratic regimes, their global crisis or collapse in individual states seems impossible.

This is exactly the case when folk wisdom "One does not seek good from good", or as the British people say "Let well alone", did not work. And while it was predictable that liberal democracy did not take root in Afghanistan and Iraq after US intervention, and Russia's return to authoritarian traditions was disappointing, though not surprising, the threat of democracy in the most established democracies came as a surprise.

Hungary was one of the first in Eastern Europe to overthrow the communist regime and join NATO and the European Union, reaffirming the strict

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demands of these organizations as a liberal democracy. But under the leadership of Viktor Orban and his Fidesz party, it was the first to follow what Viktor Orban called "illiberal democracy." However, the results of voting in the UK and the US – for Brexit and Donald Trump – were more surprising respectively (we are talking about the election of Trump as President of the United States in 2016). These two leading democracies, which were the creators of the modern liberal world order, begin to turn towards narrower nationalism (Fakuyama, 2020).

Similar concerns are expressed by Yuval Noah Harari (2018), who points out that Turkey and Russia are openly moving towards dictatorship, China skillfully uses open markets of liberal democracies, but it is against any democratic changes inside the country, and the US and EU as leaders of the liberal-democratic world are experiencing a crisis due to Brexit and the presidency of Donald Trump.

Niall Ferguson (2020) in his work "The Great Degeneration: How Institutions Decay and Economies Die" points to the serious structural problems of liberal-democratic regimes that have affected such basic institutions as democracy (electors vote for governments that increase public debt, which violates the principle of "generational partnership"), capitalism (a complex market regulation system, which does not protect against crises but also generates them), the rule of law (threat of a police state, interference of European law in common law, increasing complexity of common law, rising cost of legal services and forming the "rule of lawyers") and civil society (the state of modern civil society in decline, both through technology and through excessive state intervention). This has led to open ridicule of Western democracy by supporters of "state capitalism" in China and other countries.

Fareed Zakaria (2004) notes that a significant internal problem of democracy is the need to partially restrict decision-makers in the country from strong influence of interested groups, lobbyists and political campaigns, in other words – from the excessive influence of democracy.

Such excessive influence leads to a crisis and the decline of power as such. It goes from muscles to brains, from old corporate monsters to clever startups, from dictators to people in city squares and cyberspace (Naim, 2017). Under such circumstances, states with liberal-democratic regimes become vulnerable to the influence of authoritarian regimes.

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Considering liberal-democratic regime, George Soros (2021) uses the term "open society" and emphasizes the rapid development of artificial intelligence and machine learning, which created tools of social control that give repressive regimes their inherent advantage over open societies. For dictatorships, these are useful tools, but for open societies they are deadly. At the same time, Soros openly calls Vladimir Putin's Russia a mafia state and the main enemy of the "open society." He points to the threat of total control over the people in China if a social credit system is introduced, which could actually lead to the construction of a digital dictatorship.

Russia and China play the role of an external factor influencing the change of the liberaldemocratic regime as a whole and its versions in individual states. These two states are not liberal democracies, but if they became liberal democracies in the spirit of Western states, all major states would have stable regimes based on popular consent and the rule of law.

Unfortunately, these states are still moving in other directions (Zakaria, 2004). The policies of Russia and China are aimed at creating a new world order, in which they want to take leading roles with appropriate international influence and weight. These states are trying to use different approaches to the transformation of the liberaldemocratic regime, giving it a secondary character on a global scale.

In Russia, during Vladimir Putin's rule, a state that externally tries to preserve the formal features of a liberal-democratic regime (elections, the rule of law, market economy) was created, but it is essentially built by the will of one man – Putin and the clans that provide him with absolute power (fully controlled representatives of the executive, legislative and judicial branches of government, oligarchs, special services, power agencies (we deliberately do not call them law enforcement agencies). For complete obedience to Putin, the representatives of these clans are removed from the jurisdiction of the law and can carry out their professional and personal activities in accordance with their informal rules of conduct (if such rules are established at all, because arbitrary decisions of clan leaders are a more convenient management tool). Thus, it is obvious that Russia has all the elements of a criminal organization, mafia state, as G. Soros (2021) wrote. After all, instead of the rule of law and democratic elections, informal rules are practiced. They are based on boundless loyalty to Putin and imitation of elections with predetermined results. Russia has created the media, through which Putin controls society and,

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292 in combination with the punitive and repressive system, renders impossible any uncontrolled manifestations of the liberal-democratic regime.

As for the Internet, Russia has in fact created its own cyber troops, which are very active in interfering in the information sphere, especially before the elections in liberal democracies (the example of the 2016 presidential election in the United States is typical).

Timothy Snyder's (2020) view of Putin's use of Ivan Ilyin's fascist ideology in constructing an authoritarian model of the state regime is correct.

This model proposes to build its own special form of state in Russia, which would correspond to the Russian national historical data, be based on the power of one ruler and the "purity and objectivity" of the Russian nation. In 2010s, Putin referred to Ilyin's authority to explain why Russia should undermine the European Union and invade Ukraine. Putin's attempt to give his kleptocratic regime a certain messianic color is obvious, but in this way we see fascism modernized in the 21st century, which under the guise of the "Russian world" is opposed to the liberal-democratic regime.

Thus, Putin's Russia is not trying to propose a replacement or improvement of the liberaldemocratic regime (it is difficult to imagine the popularity of rehabilitated fascism in the version of the "Russian world" or its integration with the real liberal-democratic regime), but focuses its efforts on its destruction and discredit. At the same time, it seems that Russia does not really understand the threatening consequences for itself.

China, unlike Russia, is trying to offer the world its hybrid version of the state regime. The Chinese Communist Party established its government in 1949 and maintains its monopoly to this day. Having gained the bitter experience of the policy of the "great leap forward" and the "cultural revolution", China embarked on the path of building a market economy. Using all the tools of a market economy, combined with state monopolies, the opening of free economic zones, cheap labor, and a stable political situation (a dictatorship can provide such stability), the Chinese Communist Party has managed to ensure sustainable economic development and overcoming total poverty in recent decades.

Chandran Nair (2020) even notes that China is the best example of a strong state in the developing world today, but he also mentions that such political stability is due to the government's authoritarian measures against dissent. Daniel Bell (2017) describes the "China

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model" as democracy at the bottom, experimentation in the middle, and meritocracy at the top. He proposes renaming the Chinese Communist Party as the "Chinese Meritocratic Union", but he acknowledges the rude treatment of domestic critics and minority groups in western China.

Revealing the positive aspects of the "China model", it should be noted that economic growth and technology, first of all, China owes to countries with liberal-democratic regimes, which provide markets and innovations. Although capitalism has succeeded in creating material goods, it cannot be relied upon alone to ensure freedom, democracy and the rule of law (Soros, 2018). In fact, China is generally trying to separate these concepts, fully developing capitalism without providing such basic concepts for the liberal-democratic regime as freedom, democracy and the rule of law.

Despite China's significant achievements in the field of economic growth and poverty reduction in recent decades, its model itself still needs political transformation (especially the formalization of the change from a communist regime to a meritocratic one, with elements of democracy). But we can assume that the states of the Asian region will use the "China model" as opposed to the liberal-democratic regime.

Thus, we are witnessing a serious threat of recession of liberal-democratic regimes and their possible transformation into illiberal democracies, or in the worst case, into openly authoritarian or totalitarian undemocratic regimes. And this happens under the pressure of certain factors, the main of which are: 



  

the spread of radical nationalism (fascist policy of the "Russian world", Russia's support for radical movements in the European Union); radicalization of identity politics and excessive pressure of interested groups, lobbyists and political movements on state institutions, which leads to the introduction of gender or racial quotas in politics, economics, business or education and in fact violates the basic principle of democracy and law – formal equality; the threat of digital dictatorships, the use of cyberspace to fake public opinion, mass job losses due to the robotization of markets; ill-conceived migration policy; accumulation of significant debt obligations to future generations;

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  



environmental problems due to increasing economic growth rates and corresponding consumer demand; excessive influence on democratic governments and the general crisis of power; speculation on the problems of the liberaldemocratic regime and its erosion by the elements of the undemocratic regimes of Russia and China; the conduct of the World Hybrid War, as the latest global international confrontation that arises in the modern geopolitical system, the struggle for dominance and influence, which is conducted by the forces of states, their coalitions and non-state actors. It involves the destruction of the existing global political system and international legal mechanisms to ensure it in a world of chaos.

The World Hybrid War is conducted with the simultaneous use of conventional weapons and means of non-traditional violence (irregular, disorganizing, including cybersecurity, terrorist, criminal, etc.) in various operational areas – military, intelligence, subversive, psychological, diplomatic, political, informational, economic, social, financial, infrastructural, energy, etc. (Horbulin, 2017). An example of the hybrid war that has begun is Russia's aggression against Ukraine in 2014 and the further escalation of this conflict.

Some of these factors are due to the objective internal transformation of the liberal-democratic regime, and some of them are deliberately exacerbated by the World Hybrid War. Moreover, the level of influence of the above factors directly depends on the level of the development of the liberal-democratic regime in a given state. The United States and the European Union, as leaders of the democratic world, have full influence over their regimes. Formed over a long period of time, their democratic institutions are not always able to fully resist the twenty-first century threats. It necessitates the development of new, more effective, guarantees for the preservation of the liberal-democratic regime.

The success of this process determines whether the construction of a full-fledged liberaldemocratic regime in developing countries can be completed.

The last US presidential election, in which a member of the Democratic Party Joseph Biden was elected president, showed the possibility of a return to the liberal-democratic course. We also see an obvious disappointment of UK voters to Brexit. But threatening signals have been

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sounded and will continue to be heard unless adequate measures are taken. This is especially true of countering Russia's aggressive policy in its hybrid war against the entire liberaldemocratic world and Ukraine first of all.

Ukraine is a demonstrative state in building a liberal-democratic regime on a global scale. This is due to its geopolitical position. After all, if Ukraine manages to fully and realistically ensure the functioning of the liberal-democratic regime with all the mechanisms and institutions, then it will be a signal for other states that balance on the border of democratic and undemocratic regimes. The European Union and the United States will strengthen their positions as the world's leading democracies and gain a serious partner for cooperation. For Russia, this will mean the final collapse of its fictitious democracy (or hybrid democracy) with a possible disintegration into separate independent states.

With a negative result or declarative development of the liberal-democratic regime in Ukraine, there is a threat to its territorial integrity or entering the field of influence of Russia, which will inevitably lead to stagnation. Putin's Russia will be able to satisfy its imperial ambitions and promote the so-called "Russian world."

There is no doubt that Vladimir Putin and his entourage understand the importance of Ukraine for Russia. A successful and free Ukraine will destroy the myths of the "Russian world" about the special path of Russia, and Ukraine as an integral part of it. That is why Russia first tried to absorb Ukraine economically, especially during the presidency of Viktor Yanukovych, and after the Revolution of Dignity and in fact, resorting to both military and non-military actions in a hybrid war (occupying Crimea and part of Ukrainian territories in Donbas). Zbigniew Brzezinski (2012) warned against such a scenario in 2012, noting that if the United States does not support the unification of the West, the consequence may be that Russia will use its energy reserves, which create hostility, and – having dared because of the disunity of Europe – will try to quickly absorb Ukraine. However, the rapid absorption of Ukraine did not work out, but we understand that Russia has not abandoned its plans in this direction.

The internal effect of establishing Ukraine as a state with a liberal-democratic regime will provide it, first of all, with sovereignty and territorial integrity, and in general with the wellbeing and prosperity of its citizens. Even being

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294 on the difficult path of building a democratic regime, one can determine the advantages of those insignificant achievements that Ukraine has managed to achieve. Throughout the history of statehood, Ukrainians have not had the opportunity to elect or be elected to government, to conduct business activities with access to world markets, to build civil society, to study (both in Ukraine and abroad) and to defend their rights in their country, including the unwritten right to revolt against the criminal authorities in 2004 and 2014. It may seem strange, but the level of well-being and opportunities of Ukrainians that we have today was not present in previous generations (who lived in the Soviet Union or in the 90s will understand this phenomenon), but it is obvious that this level is insufficient compared to developed liberal democracies. We are still in the process of building a liberal-democratic regime, and the Ukrainian welfare state will be its result.

Conclusions Summing up, it is obvious that a comprehensive approach is needed to understand the causes of the crisis of democratic regimes and ways to get out of it. It is also an indisputable fact that both stable liberal democracies and young democratic regimes have been transformed in accordance with the requirements of a modern open society, scientific and technological progress, the ecological state and resistance to the destructive influences of undemocratic regimes. There is an evident need to preserve the most successful state-legal regimes proposed to humanity for future generations, and this should be a strategic goal for today's open societies.

Bibliographic references Bell, D. (2017). The China Model: Political Meritocracy and the Limits of Democracy.

Translated by Demianchuk O. Kyiv: Nash format, 312 p.

Brzezinski, Z. (2012). Strategic Vision: America and the Crisis of Global Power. Translated by Leliv H. Lviv: Litopys, 168 p.

Ferguson, N. (2020). The Great Degeneration: How Institutions Decay and Economies Die. Translated by Dysa K. Kyiv: Nash Format, 144 p.

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Fukuyama, F. (1992). The End of History and the Last Man. New York: Free Press, 418 p.

Fukuyama, F. (2020). Identity: The Demand for Dignity and the Politics of Resentment.

Translated by Sakhno T. Kyiv: Nash Format, 192 p.

Harari, Y.N. (2018). 21 Lessons for the 21st Century. Translated by Demianchuk O. Kyiv: Force Ukraine, 416 p.

Horbulin, V.P. (Ed.). (2017). The World Hybrid War: Ukrainian Forefront. Kyiv: National Institute for Strategic Studies. 496 p.

Huntington, S.P. (1993).

The Third Wave: Democratization in the Late Twentieth Century. Oklahoma City: University of Oklahoma Press, 366 р.

Naim, M. (2017). The End of Power: From Boardrooms to Battlefields and Churches to States, Why Being in Charge Is not What It Used to Be. Translated by Demianchuk O. Kyiv: Force Ukraine, 448 p.

Nair, Ch. (2020). The Sustainable State: The Future of Government, Economy, and Society. Translated by Hnatkovska I. Kyiv: Nash Format, 288 p.

Rabinovych, P.M. (2021). The Principles of Theory and Philosophy of Law: Textbook.

Lviv: LOBF "Medicine and Law", 256 p.

Recovered from https://law.lnu.edu.ua/wpcontent/uploads/2021/04/Posibnyk_maket__ 2021_2.pdf Shemshuchenko, Yu.S. (Ed.). (1998). Legal Encyclopedia: vols. 1–6. Kyiv: Ukr. entsycl., T-Ya, 768 p.

Snyder, T. (2020). The Road to Unfreedom: Russia, Europe, America. Translated by Herasym H. Lviv: Choven, 392 p.

Soros, G. (2018). Open Society: Reforming Global Capitalism.

Translated by Hrytsaichuk K., Pityk A. Kharkiv: Folio, 363 p.

Soros, G. (2021). In Defense of Open Society.

Translated by Vozniak I. Kharkiv: Vivat, 224 p.

Zakaria, F. (1997). The Rise of Illiberal Democracy. Foreign Affairs, vol. 76.

Recovered from https://www.foreignaffairs.com/articles/1997 -11-01/rise-illiberal-democracy Zakaria, F. (2004). The Future of Freedom: Illiberal Democracy at Home and Abroad.

Translated by Inozemtsev V.L. (Ed.) Moscow: Ladomir, 383 p.

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DOI: https://doi.org/10.34069/AI/2021.44.08.29 How to Cite: Ostrohliad, O., Torbas, O., Zavtur, V., Sydorchuk, V., & Fedoriv, O. (2021). Effectiveness standards for investigation of corruption crimes: Theory and practice. Amazonia Investiga, 10(44), 295-306. https://doi.org/10.34069/AI/2021.44.08.29

Effectiveness standards for investigation of corruption crimes: Theory and practice Стандарти ефективності розслідування корупційних злочинів: теорія і практика Received: July 13, 2021

Accepted: September 10, 2021

Written by: Oleksandr Ostrohliad 120 https://orcid.org/0000-0003-0003-3075 Oleksandr Torbas121 https://orcid.org/0000-0002-1465-4238 Viktor Zavtur122 https://orcid.org/0000-0002-7171-2369 Vladyslav Sydorchuk123 https://orcid.org/0000-0001-8457-1633 Oleh Fedoriv124 https://orcid.org/0000-0003-0420-0862 Abstract

Анотація

The article deals with development of a doctrinal system of effectiveness standards for the investigation of corruption crimes. The study used a number of philosophical, general scientific and specific methods of gaining scientific knowledge, including: dialectical method, hermeneutic method, method of systemic and structural analysis, methods of analysis and synthesis, functional method, formal legal method and modeling method.

It is proposed to define the investigation effectiveness as the feature of pre-trial investigation, which is characterized by the ability to achieve the tasks envisioned in Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012) and can be assessed by checking the number of objectively necessary procedural actions and the effectiveness of making intermediate and final procedural decisions. It is emphasized that the general standards of investigation effectiveness, formulated by the case law of the ECHR, are partially taken into account in Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012) through stating the need of investigation being efficient, complete and impartial. The authors formulate scientific approaches to determining the main criteria for the

Метою статті є формування доктринальної системи стандартів ефективності розслідування корупційних злочинів. У ході дослідження було використано низку філософських, загальнонаукових та спеціально-наукових методів наукового пізнання, серед яких: діалектичний метод, герменевтичний метод, метод системно-структурного аналізу, методи аналізу та синтезу, функціональний метод, формально-юридичний метод та метод моделювання. Під ефективністю розслідування запропоновано розуміти ознаку досудового розслідування, яка характеризується можливістю досягнути завдання, які передбачені ст. 2 КПК України, та яка може бути оцінена шляхом перевірки кількості проведених об’єктивно необхідних процесуальних дій та оперативністю прийняття проміжних і кінцевих процесуальних рішень. Наголошено, що загальні стандарти ефективності розслідування, сформульовані прецедентною практикою ЄСПЛ частково враховано у ст. 2 КПК України через завдання швидкого, повного та неупередженого розслідування. Сформульовано наукові підходи

Ph.D in Law, Associate Professor of Law and Law enforcement activity Department, State University “Zhytomyr Polytechnic”, Zhytomyr, Ukraine.

121 Ph.D in Law, Associate Professor of Criminal Procedure, Detective and Operational-Search Activity Department, National University “Odesa Law Academy”, Odesa, Ukraine.

122 Ph.D in Law, Senior Lecturer of Criminal Procedure, Detective and Operational-Search Activity Department, National University «Odesa Law Academy», Odesa, Ukraine.

123 PhD student of Criminal Procedure, Detective and Operational-Search Activity Department, National University «Odesa Law Academy», Odesa, Ukraine.

124 PhD student of the Department of Criminal Law Disciplines, Institute of Law, Lviv State University of Internal Affairs, Lviv, Ukraine.

120

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effectiveness of pre-trial investigation of corruption crimes.

до визначення основних критеріїв ефективності досудового розслідування корупційних злочинів.

Key words: criminal proceeding, tasks of a criminal proceeding, pre-trial investigation, standards of investigation, investigation effectiveness, investigation of corruption crimes.

Ключові слова: кримінальне провадження, завдання кримінального провадження, досудове розслідування, стандарти розслідування, ефективність розслідування, розслідування корупційних злочинів.

Introduction

Theoretical Framework or Literature Review

One of the tasks of criminal proceedings in Ukraine is to ensure an efficient, complete and impartial investigation so that everyone who commits a criminal offense is prosecuted to the extent of their guilt, no innocent person is charged or convicted, no person is subjected to unreasonable procedural pressure, and that the proper legal procedure be applied to each participant in the criminal proceedings (Art. 2 of the Criminal Procedure Code (CPC) of Ukraine (Law No. 4651-VI, 2012)). Apparently, the legislator has programmatically defined three standards of pre-trial investigation: speed, completeness and impartiality. At the same time, European standards of pre-trial investigation, in particular, are formulated in the case law of the European Court of Human Rights on the positive obligations of the state under Art. 2 and Art. 3 of the Conventionand contain broader wording that recognizes the effectiveness standards of pre-trial investigation.

Issues of the pre-trial investigation effectiveness were researched by: Znikin (2014), Stetsenko (2018), Korcheva (2019); Hovorun (2013); Sichko (2021); Chernobaiev (2020); Akhtyrska, Kasko, Malanchuk, Melikian, Poshva, Fulei, Shuklina (2011); Bielousov, Hatiiatullin, Zaporozhtsev, Tarasova, Shurduk (2018); Hnatovskyi, Bielousov, Shvets, Venher, Bondarenko (2016), Hloviuk (2016); Lazukova (2018), and others. The issues of investigation of corruption crimes were researched by Zhidkov (2019), Burbelo (2015), Danyliuk (2011), Kymlyk (2014), Kymlyk (2017), Zhuravel and Reznikova (2017) and others.

During the investigation of certain types of criminal offenses, some additional standards of pre-trial investigation may arise under consideration of some peculiarities of these offenses. The creation of special standards for pre-trial investigation of various categories of criminal offenses, on the one hand, will contribute to a more complete, fast and impartial pre-trial investigation, and on the other hand, will become a criterion for assessing the effectiveness of such investigations, which in turn will allow efforts to improve it, which will generally contribute to the inevitability of punishment of perpetrators.

Corruption-related criminal offenses are no exception in this context. Thus, their latency, significant negative economic, political and social impact on the individual, society and the state as a whole have become the basis for increasing complexity of existing standards of pre-trial investigation and the development of new ones.

The purpose of this study is to identify the effectiveness standards for investigation of corruption crimes in theoretical and practical aspects.

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Korcheva (2019) defined the concept of “the pretrial investigation effectiveness” as the duty of subjects conducting criminal proceedings at the stage of pre-trial investigation to solve the problems of criminal proceedings, to ensure comprehensiveness, completeness and impartiality of the investigation of criminal proceedings conditions as well as the priority of human rights and freedoms.

Znikin (2014) suggests that the definition of the pre-trial investigation effectiveness as the level of achievement of goals and objectives of the preliminary investigation stage as a result of legal, reliable, economic, optimal and rational organizational and procedural actions of the inquiry officer, investigator, prosecutor, head of the investigative department, and head of the investigative authority.

Stetsenko (2018) argued that the pre-trial investigation effectiveness is a value that has to be created. Instead, the ineffectiveness of the pretrial investigation means that the results of the pre-trial investigation are absent or lacking which indicates that the investigators have not gathered sufficient evidence to solve the crime.

After considering the criteria for pre-trial investigation in terms of the case law of the European Court of Human Rights, Hovorun (2013) noted that these criteria should be recognized as universal for determining the pre-

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trial investigation effectiveness in all categories of cases.

Sichko (2021) identified the following standards of the pre-trial investigation effectiveness: a) independence and impartiality; b) public control (or publicity); c) reasonable speed (or efficiency); d) proper persistence, diligence; e) accuracy.

Chernobaiev (2020) singled out the criteria for an effective pre-trial investigation in accordance with the case law of the European Court of Human Rights: focus on achieving the objectives of criminal proceedings; legality; publicity; reasonable speed; comprehensiveness and completeness of the investigation; independence and impartiality; transparency; individualization; differentiation of forms of investigation.

Akhtyrska, Kasko, Malanchuk, Melikian, Poshva, Fulei, and Shuklina (2011) disclosed the provisions of the investigation into the facts of ill-treatment by law enforcement agencies of Ukraine (based on the decisions of the European Court of Human Rights in cases against Ukraine); analyzed judicial practice through the lens of compliance with the conventional requirements of the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment in Ukraine; discussed the application of the ECHR provisions and the case law of the European Court of Human Rights in the field of combating ill-treatment and impunity by the national courts of Ukraine.

Bielousov, Hatiiaullin, Zaporozhtsev, Tarasova, Shurduk (2018) analyzed the legislation on the recording and investigation of torture in places of detention.

Hnatovskyi, Bielousov, Shvets, Venher, Bondarenko (2016) considered the implementation of international standards in the field of prevention of ill-treatment in the criminal justice bodies of Ukraine, including in terms of the procedural role of the police, prosecutors, courts.

Hloviuk (2016) considered the relationship between the provisions of Art. 206 of the CPC of Ukraine (Law No. 4651-VI, 2012) and the investigation of ill-treatment.

Lazukova (2018) disclosed the minimum international legal requirements for due process in criminal proceedings during an emergency.

Zhidkov (2019) researched theoretical and practical problems of criminal procedural status of the detectives of the National Anti-Corruption Bureau of Ukraine. The essence and content of the powers of the detective of the National AntiCorruption Bureau of Ukraine, as the party of prosecution in criminal procedings were determinated.

Burbelo (2015) researched problems of investigation of corruption crimes by investigators as well as the elements of forensic characterization of corruption crimes.

Danyliuk (2011) researched tasks of an investigator during the subsequent stage of investigation of corruption crimes and its features are considered.

Kymlyk (2014) researched issues of planning the investigation of corruption crimes. The basic principles of planning are analyzed. The main role of planning during the investigation of corruption crimes was defined, and the internal structure of planning process was revealed.

Kymlyk (2017) researched aspects of human rights that may be actualized during the investigation of corruption crimes. The main ones are processed situations that pose a threat of violation or restriction of human rights and ways to avoid it taking into account the provisions of the CPC of Ukraine (Law No. 4651-VI, 2012).

Zhuravel and Reznikova (2017) researched forensic issues of ensuring the investigation of corruption crimes, which have a complex legal essense and cover forensic, tacticalorganizational and criminological aspects, and can be solved by developing theoretical foundations as well as scientific and practical recommendations for the investigation of corruption crimes.

Methodology The methodological basis of the scientific study of the effectiveness standards of the investigation of corruption crimes consists of a set of philosophical, general scientific and specific methods of gaining scientific knowledge, including: dialectical method, hermeneutic method, method of systemic and structural analysis, methods of analysis and synthesis, functional method, formal legal method and modeling method.

The dialectical method was used for the scientific consideration of the effectiveness of pre-trial

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298 investigation as a doctrinal category, identification of contradictions in its content, the study of the dynamics of development of scientific thought on the system of investigation standards.

The use of the hermeneutic method allowed deepening the conceptual apparatus of scientific research, establishing the main approaches to the interpretation of the concept of “investigation effectiveness” in domestic and foreign doctrine, as well as in the case law of the ECHR. The article covers the author’s approach to the content of the corresponding scientific category.

Using the method of systemic structural analysis allowed revealing the main elements of the content of the concept of investigation effectiveness and establishing the correlations between them.

The use of methods of analysis and synthesis allowed determining the general system of effectiveness standards for the pre-trial investigation based on analysis of doctrinal sources and practice of the European Court of Human Rights as well as establishing its acceptability in the context of investigation of corruption crimes.

The use of the functional method allowed determining the scientific significance of establishing the effectiveness standards for the investigation of corruption crimes in order to increase the effectiveness of their investigation.

The formal legal method was used in the study of the provisions of the criminal procedure legislation of Ukraine and the relevant practice of the European Court of Human Rights.

The modeling method was used for the formulation of doctrinal standards for the effectiveness of the investigation of corruption crimes, which is carried out by the National AntiCorruption Bureau of Ukraine.

Results and Discussion General issues of effectiveness standards for the pre-trial investigation in the context of ECHR practice In the CPC of Ukraine (Law No. 4651-VI, 2012), the term “еffectiveness” in relation to pre-trial investigation is used in Art. 36, 37, 38, 39, 39-1, although the corresponding requirement is not formulated in Art. 2 or 3 of the CPC of Ukraine (Law No. 4651-VI, 2012). However, in practice, the ECHR has derived and has established a number of provisions that are considered as

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standards for the pre-trial effectiveness at this stage.

investigation

In particular, in the case of Kholodkov and Kholodkova v. Ukraine (2015), the ECHR reiterates that the the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention” requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force.

The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life.

What form of investigation will achieve this purpose may vary in different circumstances.

However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigatory procedure. This is not an obligation of result, but of means. The authorities must have taken all reasonable steps to secure the evidence concerning the incident. Any deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard.

There is also a requirement of promptness and reasonable expedition implicit in this context. It must be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. However, a prompt response by the authorities in investigating the use of lethal force or a disappearance may generally be regarded as essential in ensuring public confidence in their maintenance of the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (p. 32, 33).In the case of the Kaverzin v. Ukraine (2012), the Court reiterates that Article 3 of the Convention requires that an investigation into arguable allegations of illtreatment must be thorough. This means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions in order to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to obtain evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. The investigation should be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal

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prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance, be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (p. 108, 109). The decision Yaremenko v. Ukraine (2008) states that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness (p. 64).

Thus, as can be seen even from these three quotations (although these approaches are now well-established practice), the ECHR has developed the following standards of effectiveness: the obligation to take action; ex officio response; preservation of evidence; efficiency and reasonable speed; good faith (diligence); impartiality; accessibility for the public and stakeholders (including victims).

At present, these standards must be taken into account in the conduct of pre-trial investigation in general, given the provisions of Art. 17 of the Law of Ukraine On the Implementation of Decisions and Application of the Case Law of the European Court of Human Rights (Law No. 3477-IV, 2006) and Part 5 of Art. 9 of the CPC of Ukraine (Law No. 4651-VI, 2012).

Effectiveness standards for the pre-trial investigation in accordance with the requirements of the criminal procedure legislation of Ukraine The problem of the the pre-trial investigation effectiveness has been studied for a long time by both scientists and practitioners. This attention is explained primarily by the impossibility of using uniform objective indicators to assess the pretrial investigation effectiveness. In fact, the pretrial investigation effectiveness is a clear example of the concept of evaluation in criminal proceedings, and the nature and criteria of its definition may vary depending on the circumstances of each criminal case and the entity conducting the evaluation. However, this does not mean that legal doctrine has not attempted to develop such criteria.

For example, Zelenetskyi and Loboiko (2009) distinguish the following criteria:the degree of achieving the purpose of the prosecution activity by the bodies carrying out the criminal prosecution;relevance;legality;speed of criminal prosecution.

This position can be considered justified, because each of these criteria really allows saying that the pre-trial investigation is carried out effectively.

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However, the problem is that in fact each of these criteria is evaluative as well, which does not always allow a realistic assessment of the pre-trial investigation effectiveness. Even the requirement of legality, which is based solely on the obligation to strictly comply with the requirements of criminal procedure law, may also be subject to different assessments by the relevant participants in the criminal proceedings.

The lack of pre-trial investigation results will not always indicate the low effectiveness of the pretrial investigation. The ECHR noted that the state must first ensure an adequate response from law enforcement agencies in the investigation of criminal offenses, which consists in the efficient implementation of all possible procedural actions to solve the crime. However, this not always results in acquiring the information that will indicate the event of a criminal offense or the person who committed it. In this case, the main thing is that such actions are performed. In fact, this is the position that can be taken as a basis for establishing the criteria for pre-trial investigation.

The head of the body of inquiry, pre-trial investigation and the prosecutor must first assess how many procedural actions have been performed by the investigator or inquiry officer to investigate the corresponding criminal offense. It is impossible to set a certain minimum number in this case, but there must still be an adequate ratio between the time during which the pre-trial investigation continues and the number of procedural actions performed by the authorized person. This should take into account not only the number of such actions, but also their nature, because even if the interrogation does not require significant time, then the conduct of most covert investigative measures requires considerable time both in preparation and implementation. Therefore, it is proposed to estimate not the number of investigative and covert investigative measures that were carried out, but the number of all procedural actions that may include actions to prepare for the main public and covert investigative measures. While conducting them, the investigator or inquiry officer may not achieve the results sufficient to notify the person of the suspicion or to send the criminal information to court. However, the supervisor will establish that the investigator or inquiry officer has taken all the procedural steps necessary to obtain evidence.

During the pre-trial investigation, there is quite often a situation in which it is impossible to conduct new procedural actions at a certain stage of the pre-trial investigation until the completion

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300 of those that have already been initiated. For example, the further course of the pre-trial investigation may depend on the results of the ongoing covert investigative measures or on the results of the examination proceedings, which requires a lot of time. In this case, the number of procedural actions will be minimal, and this situation will take place regardless of the will of the investigator. In this case, the head of the body of inquiry or pre-trial investigation must assess the effectiveness of the pre-trial investigation by establishing: 1) whether the investigator (inquiry officer) really can not carry out any other procedural actions. The head must assess whether the authorized official can continue to collect evidence without waiting for the results of a certain procedural action, which takes a long time. It is possible that at this stage other investigative leads should be checked in case of negative results of the relevant procedural actions, or the investigator (inquiry officer) can predict which further evidence will need to be obtained and begin preparations for their reception; 2) whether the investigator (inquiry officer) can expedite the ongoing proceedings. In some cases, no action by the investigator or inquiry officer can expedite the process of obtaining evidence, but in some cases, the active conduct of the prosecution may hasten the process. Thus, when conducting ongoing covert investigative measures (for example, withdrawal of information from transport telecommunications networks), the investigator may try to establish when the person under supervision will report information relevant to the criminal proceedings on the phone. Alternatively, for example, when conducting examinations, the investigator may continue to look for samples that can be provided to the expert to expedite the investigation. The head of the body of inquiry or pre-trial investigation should assess all possibilities to expedite the pre-trial investigation and, if necessary, provide appropriate instructions to the investigator or inquiry officer; 3) whether the investigator (inquiry officer) could have avoided a situation in which he could not continue to carry out the procedural actions necessary for the investigation. In some cases, the results of the examination or other procedural action are key to the criminal proceedings, and such results will determine the further course of the entire criminal proceedings. However, this does not mean that the investigator or

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inquiry officer is obliged to delay the pretrial investigation until the relevant procedural steps have been completed in all cases. The head of the body of inquiry or pre-trial investigation must check whether the actual delay of the entire criminal proceedings due to other procedural actions is justified at the current stage of the pre-trial investigation. If it is established that the investigator (inquiry officer) unreasonably decided to delay the pre-trial investigation, although other procedural actions could have been carried out, the head of the pretrial investigation (inquiry) body will have to respond appropriately to the behavior of such authorized person, including deciding on his/her reassignment.

Thus, it can be concluded that first of all, when assessing the effectiveness of the pre-trial investigation, the head of the body of inquiry or pre-trial investigation should assess the number of procedural actions that have been carried out.

Of course, such an approach to assessing the pretrial investigation effectiveness cannot be considered ideal.

The assessment of effectiveness may vary significantly depending on the circumstances of the criminal proceedings, the complexity of the criminal offense, the requirements of the head of the inquiry or pretrial investigation, and so on. Furthermore, the pre-trial investigation effectiveness cannot be assessed using a single criterion, as such an approach rejects a number of other important factors that influence the course of criminal proceedings. However, taking into account the number of procedural actions as an assessment of the pre-trial investigation effectiveness has a number of strengths. First, this factor is purely objective.

Accordingly, the subjective circumstances that can be taken into account by the head are leveled out in this case: personal relationship with the investigator (inquiry officer), his own vision of the pre-trial investigation effectiveness, and so on. In addition, the assessment of the number of procedural actions can be considered a good starting point for assessing the entire pre-trial investigation. If the investigator or inquiry officer has carried out a sufficient number of necessary procedural steps, but no results have been achieved, it is difficult to argue that such a pre-trial investigation is ineffective. Conversely, the small number of actions taken may be the first indicator of the need for closer scrutiny of the investigator’s or inquiry officer’s activities by the prosecutor and the head of the inquiry or pretrial investigation body.

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The lack of a pre-trial investigation is not an indication of its ineffectiveness. However, in this case, it is proposed to evaluate this approach differently: the presence of the result of the pretrial investigation indicates its effectiveness.

Although such a position seems obvious, its analysis allows us to draw a conclusion about the normative consolidation of the pre-trial investigation effectiveness. In this case, it is proposed to use the legislative wording of the objectives of criminal proceedings. If the purpose of all criminal proceedings is to achieve the objectives provided in Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012), the pre-trial investigation effectiveness should be assessed through the possibility of achieving such objectives.

Accordingly, the pre-trial investigation effectiveness means achieving the objectives of criminal proceedings in accordance with Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012). In addition, one of the key requirements that guarantees the implementation of these objectives is the clarity of legislation, which must be strictly adhered to at all stages of criminal proceedings.

Assessment of the provisions of Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012) allows to conclude that the main task set before the investigator or inquiry officer during the pre-trial investigation is to identify persons who (probably) committed a criminal offense and to gather evidence sufficient to prove their guilt in court. The actual selection of such objectives allows us to argue about the need to distinguish between two stages of pre-trial investigation, which should assess the pre-trial investigation effectiveness: before and after notifying the person of suspicion. At the initial stage of the pretrial investigation, the investigator (inquiry officer) must carry out those procedural actions that will allow him to make substantiated notice of charges and hand it to the appropriate person.

If such a notice has been served, it can be argued that the investigator (inquiry officer) has performed an intermediate task of the pre-trial investigation stage, which should be considered effective at this stage. There is a similar situation with the second stage, namely drawing up and sending to court a charging document.

Accordingly, if the pre-trial investigation has gathered a sufficient set of evidence necessary to prove the guilt of a person in court, the work of the investigator (inquiry officer) can be considered satisfactory, and the pre-trial investigation itself – effective.

However, the investigator (inquiry officer) will not always have an objective opportunity to

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inform the person about the charges or send a charging document to court. The pre-trial investigation authorities are not tasked with sending a charging document to court in all criminal proceedings. The legislator emphasizes that only those persons who have committed criminal offenses should be prosecuted. The pretrial investigation may establish, for example, the absence of an event or the body of a criminal offense, which should entail the closure of criminal proceedings. Accordingly, a decision to close criminal proceedings (as well as a request to release a person from criminal liability or to apply coercive measures of a medical or educational nature to a person) is also an indicator of the pre-trial investigation effectiveness. At the same time, the effectiveness of the pre-trial investigation also presupposes its efficiency. Accordingly, the closure of the pretrial investigation by a decision to close criminal proceedings will only be an indication of an effective pre-trial investigation if such a decision was made in a timely and expeditious manner (not to mention the validity of such a decisionwhich must be checked by the prosecutor within twenty days from the date of the decision of the investigator or inquiry officer to close the criminal proceedings). However, it is necessary to establish in this case at what point the appropriate decision should be made in order to be able to assert the effectiveness of the pretrial investigation.

In this case, it would be appropriate to refer to the provisions of Art. 219 of the CPC of Ukraine (Law No. 4651-VI, 2012). The legislator quite clearly sets the terms of the pre-trial investigation both before and after the notification of suspicion. Accordingly, the extension of the pretrial investigation should first be acknowledged at the time of the inspection by the prosecutor, the head of the inquiry or pre-trial investigation body and, if necessary, the investigating judge of the pre-trial investigation effectiveness. The investigator (inquiry officer), when requesting an extension of the pre-trial investigation, must explain what procedural actions he has carried out, what still needs to be done to achieve the purpose of the pre-trial investigation and why they were not conducted in time. The fact of extension of the pre-trial investigation in itself should not be considered as an indicator of the ineffectiveness of the pre-trial investigation.

However, it is at this stage of the pre-trial investigation that both the prosecutor and the head of the inquiry or pre-trial body should assess the quality and efficiency of the investigator’s (inquiry officer’s) work and, if necessary, respond to possible violations or

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302 delays by the investigator (inquiry officer) by providing instructions or even replacing one investigator (inquiry officer) by another one.

The issue of effectiveness of the pre-trial investigation of corruption crimes by the National Anti-Corruption Bureau of Ukraine According to Article 216 of the CPC (Law No. 4651-VI, 2012), there are the following pre-trial investigation bodies available in Ukraine: investigative units of the National Police, security bodies, bodies supervising tax legislation, bodies of the State Bureau of Investigation and detective units of the National Anti-Corruption Bureau of Ukraine. From this list of law enforcement agencies, it can be seen that the detectives of the National AntiCorruption Bureau of Ukraine are the only body that investigates corruption crimes. However, taking into account the provisions of the note to Article 45 of the Criminal Code of Ukraine (Law No. 2341-III, 2001), corruption crimes are criminal offenses under Articles 191, 262, 308, 312, 313, 320, 357, 410, in case of their commission by abuse of office, as well as criminal offenses under Articles 210, 354, 364, 364-1, 365-2, 368-369-2of the Criminal Code of Ukraine (Law No. 2341-III, 2001). At the same time, the provisions of Part 5 of Article 216 of the CPC of Ukraine (Law No. 4651-VI, 2012) regulate the jurisdiction of the National AntiCorruption Bureau, indicating that detectives of the National Anti-Corruption Bureau of Ukraine conduct pre-trial investigation of criminal offenses under Articles 191, 206-2, 209, 210, 211, 354 ( regarding employees of legal entities under public law), 364, 366-2, 366-3, 368, 368-5, 369, 369-2, 410 of the Criminal Code of Ukraine (Law No. 2341-III, 2001). When comparing the relevant articles listed in the Criminal Code (Law No. 2341-III, 2001) as corruption-related and those under investigation by the National AntiCorruption Bureau of Ukraine, it becomes clear that not all criminal offenses that the Criminal Code (Law No. 2341-III, 2001) defines as corruption can be investigated. However, even this incomplete list of criminal offenses is investigated by detectives under certain conditions.

Thus, not all corruption offenses are investigated by detectives of the National Anti-Corruption Bureau, some are investigated by other pre-trial investigation bodies. However, it is this body that investigates those corruption offenses that due to the presence of a special entity, which despite the main features of the subject of the offense has an additional one, namely holding a position, the list

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of which is enshrined in Part 5 of Art. 216 of the CPC and the presence of the established volume of the subject of the criminal offense, or if the damage caused by it and thus causes an increased public danger to the interests protected by law.

Given the fact that the National Anti-Corruption Bureau of Ukraine investigates the most socially dangerous corruption crimes, I consider it necessary to examine this pre-trial investigation body to assess the effectiveness of the investigation of corruption offenses.

First, it is worth highlighting approaches to understanding the effectiveness of the investigation of corruption offenses. We can define the following approaches: 

Economic approach assesses the effectiveness of the relevant body in terms of its impact on the economic situation in the country, given the clearly destructive impact of corruption crimes on the economic and financial system of the country. In this approach, two criteria should be distinguished: general economic-financial and specific economic-financial criteria. As for the general economic-financial criterion, it is comprehensive and should assess the impact of the activities of the relevant body on the economic and financial system of the country as a whole. There was no special research conducted regarding the impact of the National Anti-Corruption Bureau on the economic situation, however, for example, the official website of this agency lists one of the measures of the relevant law enforcement agency, which resulted in preventing illegal compensation of UAH 674 million from the state budget (National Anti-Corruption Bureau of Ukraine, 2021).The specific economic-financial criterion evaluates the effectiveness in terms of the amount received / returned or converted into state revenue as a result of the investigation, to the funds spent on financing the relevant body. It should be understood that the funds received / returned or converted into state revenue include both funds that constitute the amount of direct damage (for example, cash or valuables that constitute improper benefit) and those that constitute indirect / prospective damage (managed to save due to the cessation of illegal activities of the persons concerned).

It is quite easy to determine the amount of direct damage; there are difficulties in determining the indirect damage, because, due to the possible nature of the offense,

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there is no exact way to calculate future possible direct damages from corruption crimes. The budget of the National AntiCorruption Bureau of Ukraine for 2020 amounted to UAH 890 million. Regarding the amount of returned / reimbursed funds by the relevant body, the National AntiCorruption Bureau noted in the report on its activities for the second half of 2020 that the estimated amount of damages caused by corruption crimes which are referred by law to the jurisdiction of the National Bureau and checked during the pre-trial investigation amount to UAH 293,384,015,420. However, the state and amount of compensation for damages and damages caused by criminal offenses referred by law to the jurisdiction of the National Bureau, amount to UAH 1,688,543,430, incl. UAH 370,666,429 in the second half of 2020. Nevertheless, the state and amount of compensation for damages and damages caused by criminal offenses, referred by law to the jurisdiction of the National Bureau, amount to UAH 1,688,543,430, incl. UAH 370,666,429 in the second half of 2020 (National AntiCorruption Bureau of Ukraine, 2020).

Social approach assesses the impact of the relevant body on social life in the country. It is worth highlighting such a criterion as the corruption perceptions indexand public confidence in the relevant body. After all, the corruption perceptions index shows the attitude of society to corruption. The existence of a guaranteed inevitability of punishment is another element of the influence on distancing oneself from corruption and disclosing it to law enforcement agencies. Thus, according to a Transparency International report from the start of the National Anti-Corruption Bureau, Ukraine has slightly improved its corruption perceptions index, from 27 points in 2015 to 33 points in 2020 (the higher the score, the lower the level of corruption, from 0 to 100 points). However, 6 points in five years is a small result, which is not considered to be statistically significant(Transparency International Ukraine, 2020). As for the trust of citizens in the relevant body, according to sociological research conducted by the Razumkov Center, as of July 2020 we have the following figures: 37.7% do not trust it at all, 33.4% rather do not trust, 10.7% rather trust, 1.7% trust fully, and 16.6 % have difficulty answering(Citizens’ assessment of the situation in the country, the level of trust in

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





the executive and law enforcement agencies, the assessment of the Government’s activities (sociology as of February 2020 by Razumkov Center (2020)).

Criminal procedural approach evaluates the activities of the relevant bodies through the prism of compliance with the work of the relevant body to the tasks of criminal proceedings, which are specified in Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012). Depending on the specified objectives, it is necessary to allocate also corresponding criteria of an estimation of effectiveness. Thus, the tasks of criminal proceedings are: Protection of the individual, society and the state from criminal offenses is a criterion that assesses the overall impact and characterizes the direction of law enforcement. Thus, in 2020, 792 criminal proceedings were initiated, and 201 persons were reported as suspects and from 2015 to December 21, 2020, the National AntiCorruption Bureau sent 300 charging documents to court against 541 defendants.

And in the second half of 2020, detectives of the National Anti-Corruption Bureau of Ukraine sent 35 charging documents to court, against 56 defendants. Among them: 7 senior state officials, 2 civil servants, “A” category local government officials, 1 judge (National Anti-Corruption Bureau of Ukraine, 2020).

Protection of the rights, freedoms and legitimate interests of participants in criminal proceedings is a criterion designed to ensure the principle of legality in criminal proceedings. In exercising their powers, the relevant law enforcement agencies should give priority to the protection of the rights, freedoms and legitimate interests of participants in criminal proceedings. This criterion can be assessed based on the number of satisfied complaints about the actions of employees of the relevant law enforcement agency, which violate the rights, freedoms and legitimate interests of participants in criminal proceedings. Thus, according to the report of the Internal Control Department of the National Bureau, 550 appeals and complaints were received against the employees of the National Bureau in 2020, 8 official investigations were conducted in the same reporting year, 7 people were prosecuted (which resulted in 2 reprimands, 3 remarks and 2 dismissals) against 236 full-time detectives and 504 fulltime employees of the National Anti-Corruption Bureau of Ukraine

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304









(National Anti-Corruption Bureau of Ukraine, 2020).

Ensuring efficient, complete and impartial investigation and trial is a criterion that directly characterizes the “quality” of the performance of their functions by law enforcement agencies. However, this criterion is evaluative, because the implementation of each component depends on many evaluation factors. For example, the investigation of the criminal proceedings, which in the report of the National Agency is noted as: the seizure of gas by Naftogaz Ukraine lasted 42 months.

During this time, more than 30 searches, 30 forensic examinations, 100 interrogations, 50 inspections, 20 temporary accesses to things and documents were performed, and 250 volumes of criminal proceedings were formed; the amount of losses is UAH 729.8 million (National Anti-Corruption Bureau of Ukraine, 2020) Everyone who has committed a criminal offense has been prosecuted to the extent of his or her guilt; no innocent person has been charged or convicted. This is a criterion that also characterizes the “quality” of law enforcement functions in relation to reasonable suspicion and sentencing of a person. Regarding the quality of the pre-trial investigation, in 2020 the Supreme AntiCorruption Court of Ukraine passed 20 convictions against 23 people, while no acquittals were issued in 2020. Among the convicts, there are former people’s deputies, heads of state-owned enterprises, officials, judges, lawyers and others. As of the end of 2020, 175 cases under investigation by the bureau are pending before the court (National Anti-Corruption Bureau of Ukraine, 2020).

No person has been subjected to unreasonable procedural pressure. This is a criterion for the proper implementation of the presumption of innocence. It should be assessed by the number of canceled procedural documents that provided for procedural pressure. Thus, in the first half of 2020, the Supreme Anti-Corruption Court granted 80% of motions to select precautionary measures for suspects, and in 75% of cases, judges decided to detain persons convicted of corruption (National Anti-Corruption Bureau of Ukraine, 2020).

Each participant in the criminal proceedings was subject to an appropriate legal procedure. This criterion is decisive for the admissibility of evidence and is designed to ensure the implementation of the

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form of criminal proceedings, and is assessed by the amount of evidence that was declared inadmissible.

Conclusions The standards of the investigation effectiveness, which were developed by the ECHR in the context of Art. 2 and Art. 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms are of such a nature that at the present stage of development of positive obligations of states can not only affect the investigation of death and ill-treatment. Duty to take action; ex officio response; preservation of evidence; efficiency and reasonable speed; good faith (diligence); impartiality; accessibility to the public and stakeholders (particularly victims) should be used in assessing the investigation of any criminal offense. In part, these standards are taken into account in Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012) through the task of efficient, complete and impartial investigation.

It can be concluded that the pre-trial investigation effectiveness is a feature of the pre-trial investigation, which is characterized by the ability to achieve the objectives provided for in Art. 2 of the CPC of Ukraine (Law No. 4651-VI, 2012), and which can be assessed by checking the number of objectively necessary procedural actions and efficiency of intermediate and final procedural decisions (notification of suspicion, drafting and sending a charging document to court, closing criminal proceedings, etc.).

The National Anti-Corruption Bureau of Ukraine was established in 2015. It is the central body of pre-trial investigation, which investigates the most socially dangerous corruption crimes. To assess the effectiveness of its work, one can use different criteria as well as different approaches to the effectiveness criteria. However, it is safe to say that the relevant body is working more effectively every year, as evidenced by the annual increase in the number of criminal proceedings investigated by the relevant body; charging documents sent to court; the amount of damage reimbursed to the state; relatively small number of judges refusing to apply precautionary measures; relatively small number of substantiated complaints and statements about the actions of bureau employees, etc.

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B.M., Fulei, T.I., & Shuklina, N.H. (2011).

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(July 2020). Official website of the Razumkov Center.

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DOI: https://doi.org/10.34069/AI/2021.44.08.30 How to Cite: Pasyeka, O., Shekhavtsov, R., Marmura, O., Burda, S., & Lutskyi, T. (2021). Problems of criminal law protection of the national security of the state against subversive acts. Amazonia Investiga, 10(44), 307-315. https://doi.org/10.34069/AI/2021.44.08.30

Problems of criminal law protection of the national security of the state against subversive acts Проблеми кримінально-правової охорони національної безпеки держави від диверсійних актів Received: July 12, 2021

Accepted: September 4, 2021

Written by: Oleksiy Pasyeka125 https://orcid.org/0000-0002-5797-3597 Ruslan Shekhavtsov126 https://orcid.org/0000-0002-4756-9849 Oleh Marmura127 https://orcid.org/0000-0002-6981-5377 Stepan Burda128 https://orcid.org/0000-0002-9904-311X Taras Lutskyi129 https://orcid.org/0000-0002-1725-4029 Abstract

Анотація

The purpose of the article is to study the main problematic aspects of the regulation of liability for sabotage in the legislation of Ukraine. The subject of the research is the problematic aspects of the regulation of criminal liability for sabotage under the laws of Ukraine. In order to obtain reliable results, a number of methods are applied: dialectical, formal-logical, hermeneutic, logicalsemantic, statistical, comparative-legal, etc. The results of the conducted research: modern threats to the national security of any state require effective measures of counteraction, including the qualitative criminal legislation. The main shortcomings of the regulation of liability for sabotage under the laws of Ukraine are due to the imperfection of the components of this criminal offense, as well as the misinterpretation of its provisions by the enforcer. In addition, it is determined that one of the important problems of liability for such action is the parallel existence of a terrorist act in the criminal legislation of Ukraine, and the components of a terrorist act by its content and nature in most cases coincides with the components of sabotage. A number of

Метою статті є дослідження основних проблемних аспектів регламентації відповідальності за диверсію у законодавстві України. Предметом дослідження є проблемні аспекти регламентації кримінальної відповідальності за диверсію за законодавством України. Для одержання достовірних результатів використано низку методів дослідження, а саме: діалектичний, формально-логічний, герменевтичний, логікосемантичний, статистичний, порівняльноправовий тощо. У результаті проведеного дослідження доведено наступне: сучасні загрози національній безпеці будь-якої держави вимагають ефективних засобів протидії, у тому числі якісне кримінальне законодавство; основні недоліки регламентації відповідальності за диверсію за законодавством України зумовлені як недосконалістю складу цього кримінального правопорушення, так і неправильним тлумаченням його положень провозастосувачем; крім того, визначено, що однією з вагомих проблем відповідальності за

PhD in Law, Associate Professor, Associate Professor of the Department of Criminal Law and Criminology, L’viv State University of Internal Affairs, Ukraine.

126 PhD in Law, Associate Professor, Dean of the Faculty № 1, Institute for Training of Specialists for the Units of the National Police, L’viv State University of Internal Affairs, Ukraine.

127 PhD in Law, teacher at the Department of Criminal Law and Criminology, L’viv State University of Internal Affairs, Ukraine.

128 PhD in Law, Associate Professor, Associate Professor of the Department of Criminal Law and Criminology, L’viv State Universit y of Internal Affairs, Ukraine.

129 PhD in Law, teacher at the Department of Criminal Law and Criminology, L’viv State University of Internal Affairs, Ukraine.

125

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changes and additions to the criminal legislation of Ukraine on elimination of the specified problems are proposed.

Key words: criminal liability, criminal offense, national security, sabotage, terrorist act.

таке діяння є паралельне існування в кримінальному законодавстві України складу терористичного акту, який за своїм змістом та характером у більшості випадків збігається із складом диверсії; запропоновано низку змін та доповнень до кримінального законодавства України щодо усунення вказаних проблем. Ключові слова: кримінальна відповідальність, кримінальне правопорушення, національна безпека, диверсія, терористичний акт.

Introduction Ensuring the national security is one of the main tasks of any state. This task requires significant resources, efforts and qualitative tools. The latter, in turn, includes a set of counteraction measures both to internal and external threats. Criminal law is means, which is not only created to punish perpetrators of crime, but also to be a significant deterrent. Accordingly, the quality of the law directly affects the protection of the state against various threats. Despite the fact that the Criminal Code of Ukraine provides for a separate section, which covers all encroachments on the national security of Ukraine, the quality of these norms sometimes deserves reasoned criticism. Sabotage is one of such encroachment. Taking into account the fact that the components of this crime have been provided for by criminal law for many decades, its content is not changed significantly over the years, and it is not because the legislator has so successfully formulated its corpus delicti.

The provisions of Art. 113 of the Criminal Code of Ukraine did not actually apply to the events that began in Ukraine in 2013, but modern realities have led to the emergence of relevant law enforcement and judicial practice in cases of this category. Moreover, the practical application of the provisions of this article revealed a number of critical problems that obviously need to be solved.

In view of this, in theory, the problems of the components of sabotage, which are caused by unsuccessful formulation of the subject matter of this criminal offense; impossibility of applying the provisions of Art. 113 of the Criminal Code of Ukraine in case of committing a subversive act by omission; unreasonable extension of the content of the objective side of this offense; unsuccessful formulation of certain features of this crime; difficulty in determining the moment of its completion; restrictions on the extension of the provisions of the analyzed article to new threats, in particular cyber sabotage, etc. have remained little studied or not studied at all.

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In addition, the European integration processes taking place in Ukraine necessitate, among other things, the harmonization of its legislation with the legislation of the European Union, as well as the legislation of its member states. Unlike Ukraine, EU legislation does not provide for the components of sabotage, such actions constitute a terrorist act. Theorists and legislators should also consider the possibility of making appropriate changes to the Criminal Code of Ukraine.

Methodology The complex application of philosophical, general and special scientific methods contributed to the comprehensive disclosure of the subject of the research. In the course of the research, a number of methods of scientific cognition are used, namely the dialectical method allows investigating the development of scientific thought on the content of the features of the analyzed criminal offense, the development of the Ukrainian legislation on liability for sabotage. This, in turn, allowed us to study the development of Ukrainian legislation concerning liability for subversive acts, to establish both the positive aspects of such changes and the shortcomings of the legislative process in this field. In particular, taking into consideration the lack of judicial practice until 2013, it is proved that during the development of the criminal legislation of Ukraine the components of sabotage did not actually change.

The features of this crime were formed by the doctrine of criminal law of the Soviet era and, accordingly, do not take into account modern threats. This made it possible to reveal further directions for research.

The hermeneutic approach makes it possible to apply interpretive techniques using various methods of legal interpretation to analyze the content of criminal law sources, their understanding, which contributes to an in-depth

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understanding of the features of sabotage. It is established that there is no unified approach to understanding the content of certain features of sabotage in the theory of criminal law and in law enforcement and judicial practice. Scholars have different interpretations of the content of important industrial or defense facilities, the end of this crime, and so on. The existence of these problems is confirmed by the analysis of law enforcement and judicial practice.

The use of the logical-semantic method allows analyzing the content of the basic concepts related to the subject of this research. This method made it possible to reveal a number of problematic aspects related to the terminological flaws of the provisions of Art. 113 of the Criminal Code of Ukraine, to investigate their content, as well as to suggest possible ways to solve them.

The comparative legal method makes it possible to compare the features of the sabotage and the terrorist act, to identify common and different features. The statistical method is used to analyze indicators of law enforcement and judicial practice in this category of cases. The study examines the sentences of the courts of Ukraine on the facts of committing criminal offenses under Art. 113 of the Criminal Code of Ukraine for the period from 2013 to 2021, which in turn made it possible to determine those problematic aspects that arise in the process of practical application of the provisions of this norm.

Literature Review The problems of criminal liability for sabotage, taking into consideration that this criminal offense is absent in the legislation of European countries, have been the subject of the research only by scientists from the so-called post-Soviet camp. Their works deals with the analysis of a terrorist act, other encroachments on the national security. The publications of Bissell, and Schottenfeld (2018), Bruevich et al (2019), Macdonal, Correia and Watkin (2019), Andrés (2020), Gómez (2001), Terreros (2014) are of direct importance for the subject of this research.

Ukrainian scholars both in their articles and in theses directly consider the issue of the components of sabotage.

Klymosiuk's dissertation (2018a) is one of the monographs devoted to the corpus delicte of this criminal offense. In his work, the author comprehensively investigates a number of key issues that are important for the correct clarification of the content of this act, among which should be highlighted the study of the relationship between

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sabotage and terrorist act, as well as the research on improving criminal liability for sabotage and ways to solve it. Bantyshev and Shamara (2010) carry out a comprehensive study of the components of this criminal offense, however, as part of a general study of all crimes against the foundations of national security. Chuvakov (2017) conducts a similar study on criminal law counteraction to crimes against the basics of the national security. Some aspects of the components of this crime are considered within scientific articles or other scientific publications.

Peleshchak (2017) give the characteristics of a special type of sabotage, namely cyber sabotage, Pasyeka (2018b) reveals the main problems related to the regulation of liability for sabotage etc.

Results and Discussion The events that have taken place in Ukraine since 2014 led to the significant application of certain provisions of criminal legislation, especially in criminal offenses against national security.

Taking into account their special features, either they did not previously find their practical implementation, or their judicial practice was scanty. Art. 113 of the Criminal Code of Ukraine was one of such norms. Despite the long existence in the legislation of Ukraine, it has begun to be actively used to prosecute the perpetrators by the judiciary only for the last eight years. Despite the establishment of this norm and the presence of a number of fundamental works to determine the components of this criminal offense and their individual features in the doctrine of criminal law, the practice of applying the provisions of this article clearly shows a number of problems. These problems complicate the law enforcement process and lead to errors in law enforcement and judicial activities.

The analysis of the components of the criminal offense under the provisions of Art. 113 of the Criminal Code of Ukraine, theoretical developments of scientists who studied the components of sabotage, as well as judicial practice on cases of this category testify to the existence of a number of problems that need to be resolved as quickly and effectively as possible. Given the significant number of such problems, this article deals with the most critical problems that require special theoretical thinking and urgent legislative changes.

The research proves that following problems are: 1.

The first and one of the main problems of the components of this crime is the failed

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310 definition of its subject matter. Art. 113 of the Criminal Code of Ukraine defines important industrial or defense facilities as one of the subject matters. The difficulty of determining the subject matter of sabotage is due to several factors. First, the use of the concepts of "important industrial facilities" or "important defense facilities" in the provisions of Art. 113 of the Criminal Code of Ukraine without defining their content directly in the law can hardly be called a good idea. Secondly, instructions on other subject matters of the crime in the provisions of Art. 113 of the Criminal Code of Ukraine are not contained at all, and their presence only logically follows from the provisions of certain forms of the objective side of this crime (actions aimed at spreading epizootic or epiphytic diseases – objects of fauna and flora). Third, the subject matters of sabotage in some cases coincide with the subject matter of other criminal offenses provided for in other sections of the Special Part of the Criminal Code of Ukraine. It requires consideration in the qualification of other distinguishing features, and this question is a difficult (or impossible) task in some cases.

Therefore, first, the problem is that there is no legislative definition of these concepts, and this leads to an arbitrary interpretation of its content by both theorists and practitioners. In addition, the legislator failed to define the very concept of "important industrial or defense facilities". In this regard, it is not clear what criteria make such facilities "special", and the use of the term "industrial" is a post-Soviet property in general, and not the best, because this concept does not take into account modern realities. A number of such problems have been drawn to the attention of scientists. Although the scientists united in determining what is the subject matter of this crime (important industrial or defense facilities; objects of radioactive contamination; objects of fauna; objects of flora), but there is no unity about what exactly belongs to it (Melnyk, Khavroniuk, 2019). That is why in the doctrine of criminal law there is a misunderstanding of the content of this feature of the criminal offense. It led to the emergence of a number of scientific publications, in which the authors diametrically describe the content of this concept. Thus, some authors include property, i.e. important industrial or defense facilities, objects of fauna and flora, environment to the subject matter of this crime (Bantyshev, 2014). The others – human life and health, important constructions and communications of industrial or defense purpose (factories, plants, bridges, dams, railway stations,

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power plants, gas pipelines, warehouses, etc.), herds of animals (horses, cows, pigs, sheep), poultry farms, plants (fodder crops), fish in reservoirs, agricultural crops or other crops, forests, etc. (Kartavtsev, 2004). The third – enterprises, institutions; ways and means of communication; oil pipelines; ships and aircraft; locality; air; reservoirs; any animals; pastures, lands, forests (Seletskyi, 2008). In the scientific literature, one can also find opinions about the fact that the subject matter of this crime should also include computer information, which is intentionally destroyed or distorted in order to weaken the state (Bantyshev, Shamara, 2010).

For the objectivity of the research, it will be relevant to give examples of the judicial practice of Ukraine concerning the subject matter of sabotage in the commission of real crimes.

Thus, according to the Unified State Register of Court Decisions of Ukraine from 2013 to 2021, there are 16 sentences for crimes under Art. 113 of the Criminal Code of Ukraine, in which the subject matter of sabotage was usually objects of railway and road traffic (bridges, roads, rolling stock), and only in one case it was a military unit where fuel and material values were stored.

Accordingly, the analysis of the judicial practice does not make it possible to determine a complete list of such objects.

Considering the analysis of the subject matter of this crime, it should be pointed out that only some of these concepts are reflected directly in the legislation of Ukraine, namely the concept of "objects of fauna" and "objects of flora". This, in turn, necessitates to define a general list of important industrial or defense facilities and objects that may be subject to radioactive contamination (in the latter case, it can be any object), and, in addition, to determine important industrial or defense facilities from them.

Regarding the latter, it should be noted that today the person who will investigate the case, certainly, taking into account all the circumstances of the case, would intuitively decide the determination of the «important facilities». This indicates the inefficiency of the legislator's use of such a formulation of the subject matter of sabotage, and, accordingly, requires amendments to Art. 113 of the Criminal Code of Ukraine.

In view of the above, it is obvious that the subject matter of sabotage needs to be adjusted.

Moreover, the legislation facilitates this task in some ways, as Ukraine has developed the Draft Law "On Critical Infrastructure and its

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Protection" (Draft Law of Ukraine No. 5219, 2021), which defines the concept of such facilities, and they are the most valuable objects for the national security by their content.

Therefore, the subject matter of this crime should be identified as objects of critical infrastructure.

Such a proposal has already been reflected in the literature (Pasyeka, 2018a).

2.

A debatable issue in the theory of criminal law is also to determine the possibility of sabotage not only by actions but also by omission.

3.

4.

Some scholars argue that the objective side of sabotage is characterized only by actions, while others support the position that this crime can be committed by either action or omission. Thus, according to some researchers, the provisions establishing the forms of the objective side of sabotage indicate that the crime can be committed only by actions. The legislative wording of Art. 113 of the Criminal Code of Ukraine proves it. The Article emphasizes this circumstance with the phrases "committing for any purpose ...", ".... or other actions ...", "... committing, for the same purposes, actions ...".

Thus, both the legislator and most well-known researchers support the thesis that such a crime can be committed only by actions (Chuvakov, 2017).

5.

Instead, other authors argue the opposite, emphasizing that sabotage can be committed by both action and omission. Moreover, as noted by researchers, it is possible to commit all forms of sabotage by omission (Smirnov, 1974). In this case, it is obvious that the opinion, which was defended by scientists half a century ago, is still relevant today.

Considering the provisions of Art. 113 of the Criminal Code of Ukraine, the legislator rejects the commission of sabotage by omission, as the objective side indicates the need for the perpetrator to commit actions ("explosions, fires, or other actions"). However, it is not difficult to imagine the possibility of committing sabotage by omission, and there are many examples in this case. For example, if an employee of the station for the task of special services of a foreign state deliberately does not reduce the temperature in the reactor and this leads to an accident, then such omission under the current wording of Art. 113 of the Criminal Code of Ukraine is not sabotage only for the reason that the crime was committed not by action but by omission. It clearly indicates the shortcomings of this wording of the Article and the expediency of its correction.

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The legislator failed to expand the objective side of sabotage by pointing to "other actions", because in this case any action, even at the preliminary stage, such as the purchase of explosives for further explosion already forms sabotage. However, it is obvious that in this case, to distinguish the completed sabotage from its preparing will be quite a difficult task, and the social danger of such actions is quite different.

The next problematic aspect, which directly relates to the practical component of the application of the provisions of Art. 113 of the Criminal Code of Ukraine is use of plurality to denote the forms of the objective side. Thus, for unknown reasons, Part 1 of this Article indicates the commission of explosions, fires and other actions, which proves the presence of a crime in the actions of a person only when committing at least two explosions, two fires or other actions.

This assumption arises in view of the interpretation of similar provisions in other articles of the Criminal Code of Ukraine (for example, ballots – Art. 158, ammunition – Art. 262 of the Criminal Code of Ukraine, etc.). Accordingly, all existing judicial practice is in fact contrary to the law.

Therefore, it is obvious that it is expedient to express the objective side of this crime in the singular.

In scientific works, the authors point out that the presence of a significant number of forms of the objective side led to a discussion on establishing the end of this crime (Pasyeka, 2018b). Thus, some scholars recognize sabotage as a completed crime from the moment of actual destruction or damage to the object of encroachment, as well as after committing mass poisonings or spreading epidemics and epizootics (Berzin, 2012). Others note that such a moment is recognized as the committing actions directly aimed at harming the object of this crime (Klymosiuk, 2018a).

In addition, some scholars make mention of the formal components of sabotage, indicating that sabotage is a completed crime from the moment of explosion, fire, submersion, collapse or other actions of the appropriate direction, regardless of whether certain consequences actually occurred.

For example, explosion due to low power may not have any noticeable consequences at all: the rain may not ignite the burning shelter, or poison or pathogen will be ineffective. Adding to this that the presence and severity of actual consequences in the form of death, damage to their health, destruction or damage to certain

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312 objects, radioactive contamination, mass poisoning, epizootic or epiphytic diseases are taken into account by the court in sentencing (Melnyk & Khavroniuk, 2019). Others classify sabotage as inchoate crime, recognizing it as a completed crime from the moment of committing at least one of the actions specified in the law (explosions, fires or other actions for the purposes of the occurrence of dangerous consequences specified in the law), regardless of the actual death, bodily injury, radioactive contamination, etc. (Tatsii et al, 2020).

6.

Certain difficulties in classifying cyberattacks as relevant to sabotage are also noteworthy today. Researchers point out that despite the established mechanism of legal regulation of cybercrime in Ukraine, some of its manifestations are either not criminalized at all, or punishment sometimes does not correspond to the level of social danger of such an act (Serkevych et al, 2019). In this case, the problem is that a cyber-attack may be part of sabotage, if such actions are aimed at destroying or damaging important industrial or defense facilities or objects of radioactive contamination.

However, it can be assumed that unauthorized access to the computer may be aimed at simply stopping the operation of the relevant strategic enterprise or other object, while the destruction or damage of such an object does not occur, respectively, and the components of the crime under the analyzed article are absent. That is why the scientific community is considering the possibility of introducing such a concept as cyber sabotage into circulation, including legislative one. Some scholars consider cyber sabotage within the current wording of this Article and point to the problems caused by the inconsistency of the subject matter of the crime under Art. 113 of the Criminal Code of Ukraine with cyber sabotage (Peleshchak, 2017). Others point to the need to make appropriate changes in Art. 113 of the Criminal Code of Ukraine in terms of expanding its objective side by unauthorized access to the work of computers, their networks or distributing malicious software (viruses, Trojans) with all other features of sabotage (Bezsusidnia, 2017). Moreover, a separate group of researchers considers committing such actions not within the concept of cyber sabotage, but within cyber terrorism (Dovhan, 2011). We believe that the best alternate is to expand the content of the objective side of the terrorist act, which will cover all possible manifestations of

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7.

terrorist activity, including the cyber defense of the state.

The problematic feature of the components of sabotage is another feature that characterizes its subjective side, namely the purpose (Artemenko, 2018).

Other researchers have also drawn attention to this problem (Klymosiuk, 2018b). Since the legislator directly stated in the Article that any purpose prejudicial to the State is an obligatory feature of sabotage, its absence indicates that there is no corpus delicti of this crime. This, in turn, makes it possible for the person who actually committed the sabotage to evade criminal liability completely. Thus, if it is impossible to prove the criminal intent of the perpetrator to achieve this purpose in, for example, the destruction or damage of important industrial or defense facilities, his actions cannot be qualified under Art. 113 of the Criminal Code of Ukraine. If these actions caused damage in a large amount (250 or more non-taxable minimum incomes, as of 2021 it is 283,750 hryvnias, or $ 10,133), they can be qualified under Art. 194 of the Criminal Code of Ukraine. If the damage is smaller, the corpus delicti in the actions of the person is absent.

In addition, some scholars study certain actions that can form components of a terrorist act and sabotage by their nature, but due to their special features may be outside the scope of criminal law (Macdonald et al., 2019).

Significant difficulties in law enforcement and judicial practice arise in distinguishing the analyzed crime from a terrorist act, as the main feature for the distinction is a special purpose. It is not in vain that some researchers point to the special need for special knowledge in the qualification of these actions (Bruevich et al., 2019). Other scientists (Bissell & Schottenfeld, 2018) considered certain aspects of this issue.

No less significant in this aspect is the judicial practice, in which there are cases when courts qualify committing identical acts differently, in one case as sabotage, in another as a terrorist act.

Moreover, despite the binding nature of a special purpose, in all of the analyzed sentences for crimes of this category, evidence or other data that would indicate the presence of the special purpose in the actions of perpetrators are not produced. This fact eliminates the theoretically substantiated for centuries postulates on the corpus delicti of a criminal offense and its significance.

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8.

Each of the above problems causes at least one other, related to the delimitation of sabotage with related criminal offenses. In this case, the correct choice of the article of the Special Part of the Criminal Code of Ukraine will depend on the object of encroachment, and its subject matter, and purpose and other components of the criminal offense. It is clear that this is a problem, as the content of these features is sometimes a difficult task. For example, someone else's property is the subject matter of crimes against property: willful destruction or endamagement of property (Art. 194 of the Criminal Code), willful destruction or endamagement of electricity facilities (Art. 1941), negligent destruction or endamagement of somebody else's property (Art. 196 of the Criminal Code), etc. However, important industrial or defense facilities that are the subject matter of sabotage are also somebody else's property. Objects of flora and fauna, which can also be the subject matter of sabotage, are the subject matter of illegal hunting, animal cruelty, ecocide, etc. In this case, the subject matter of the crime, which comes to the fore, can "disguise" the direct object of a particular criminal offense.

the legislatures of each state, and various international institutions.

Accordingly, the above indicates that the activities of special services, high-quality and clear legislation, an effective law enforcement and judicial system should be as consistent as possible with modern threats.

Within the framework of this article, an attempt to investigate only a certain aspect of the protection of state interests, the interests of society and individual citizens is made, but this research also reveals many problems caused by various factors. However, there are possible ways to solve them.

Summing up, several ways to solve the declared problems are proposed: 1) to change the wording of Art. 113 of the Criminal code of Ukraine by definition of the critical infrastructure objects as a subject matter of this crime, and exclusion of any purpose prejudicial to the State from its obligatory features; 2) to exclude Art. 113 from the Criminal Code of Ukraine in general, instead, to expand the components of the terrorist act, which would cover all possible terrorist and subversive acts.

Bibliographic references

Finding out the purpose of the crime is a mandatory task in distinguishing sabotage from a terrorist act, premeditated murder by explosion, fire or other dangerous means, willful destruction or endamagement of property in the same way, and so on. However, it is obvious, and this is quite clearly evidenced by the judicial practice, this task is quite difficult, and in some cases not possible. That is why some publications point out the expediency of excluding the purpose as a mandatory feature from sabotage.

It is obvious that these issues of criminal law regulation of liability for subversive acts are not limited, but the above may serve as a basis for further more thorough researches in this area.

Conclusions Thus, the paper proves the relevance of the chosen topic, because encroachment on the national security of the state is one of the most serious crimes, the negative consequences of which extend to a wide range of public relations and interests. It is obvious that this group of crimes, as well as crimes of the so-called terrorist activities, is not a problem of a single state. This problem is global and requires joint concerted actions by both the scientific world community,

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