Badzeliuk P. Constitutional and legal principles of regulating the activities of the advocacy: a comparative legal study

Українська версія

Thesis for the degree of Doctor of Philosophy (PhD)

State registration number

0823U100604

Applicant for

Specialization

  • 081 - Право

05-09-2023

Specialized Academic Board

ДФ 61.051.058

Uzhhorod National University State Higher Educational Institution

Essay

In the dissertation, a comprehensive study of the paradigm of legal and legal understanding of the institute of advocacy is carried out. The field of research of the concept of understanding the institution of advocacy is proposed to be considered through the prism of the following approaches: approaches to understanding advocacy by functional purpose; approaches to understanding advocacy through evolutionary discourse; approaches to understanding advocacy by means of analyzing the internal legislation of states; approaches to understanding advocacy through the prism of international standards. The author's definition of the legal category "lawyer" is proposed, which should be understood as a person who has acquired special knowledge, skills and abilities and is authorized by current legislation to provide legal assistance to anyone who turns to him, including on a free basis. A proper definition of the standards of advocacy has been formulated, which should be understood as a set of normative and legal regulators, which include requirements that are of fundamental importance for the implementation of effective, fair and high-quality legal assistance. The main roles of a lawyer in society are highlighted, namely: a lawyer as a mediator; a lawyer as a defender of human affairs; attorney as knowledgeable. It is argued that access to advocacy should be understood as a set of procedurally consistent actions, which include checking the knowledge, skills and abilities of a person who has expressed the intention to lead a human rights institution of society, conducted on the basis of independence, impartiality and justice. It is summarized that a number of procedural elements emerge from the paradigm of access to human rights activities, which mutually complement it. It is about the stages of access to advocacy, under which the author proposes to understand normatively regulated procedural elements, the main purpose of which is the realization of a person's right to obtain the right to engage in advocacy. Summarizing international and domestic experience (USA, Germany, Great Britain, France, Czech Republic, Japan, Belgium, China, Australia), the stages of access to advocacy are determined from the angle of the following factors: the educational factor, the meaning of which is the acquisition of a certain level of education by a person; the qualification factor, the main focus of which is centered around the qualifications acquired by the person; the testing factor, which consists in a person undergoing special training in the form of exams, testing, etc., in order to identify the level of possession of the latest practical skills and abilities in the application of legislation and obtaining a certificate that certifies the person's right to engage in advocacy; the "advocacy" factor, the essence of which is the need for a person, after receiving a certificate of the right to practice law, to go through the procedure of improving qualifications, consolidating the acquired knowledge in practice, in other words, the procedure of training with experienced lawyers. It is argued that the organizational and legal forms of advocacy should be understood as the extent of the subjective right of the advocate, which is manifested in the possibility of choosing the form of his further activity, which is aimed at the affirmation and protection of the rights, freedoms and interests of individuals, which is conducted in the spirit of respect for legality, equality, fairness, and ensuring accessibility and competence. In the course of the research on the innovative policy of Ukraine and abroad, it was established that the digitization of the legal profession should be understood as the use of information and telecommunication tools during the independent professional activity of a lawyer regarding the implementation of protection, representation and provision of other types of legal assistance to the client in order to simplify and ensure accessibility. The author posits that the policy of digitalization of advocacy activities is aimed at the implementation of such key points as: cost reduction, which is primarily provided by outsourcing of legal processes and alternative providers of legal services; advocacy in the cloud, i.e. electronic advocacy and dispute resolution on legal online platforms. A general vision of cyber security of advocacy activity is presented, under which it is proposed to understand the state of security, under which any encroachment on information that is the subject of advocacy activity is neutralized, ensuring confidentiality, integrity and availability. The field of digitization and digitalization of advocacy activities is proposed for further meaningful and modernized research, including regarding the legal regulation of the provision of legal services, improvement of the mechanism of online dispute settlement, electronic adjudication and other urgent issues.

Research papers

1. Бадзелюк П.П. Адвокатура як інструмент реалізації основоположного права особи на професійну правову допомогу. Науковий вісник Ужгородського національного університету. Серія «Право». 2021. Вип. 66. С. 240-243.

2. Бадзелюк П.П. Адвокатура в «хмарі»: нові цифрові виклики та реалії сьогодення. Науковий вісник Ужгородського національного університету. Серія «Право». 2022. Вип. 71. С. 333-337.

3. Бадзелюк П.П. До питання про забезпечення кібербезпеки адвокатської діяльності. Аналітично-порівняльне правознавство. 2022. №2. С. 302-305.

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