Constitutional Human And Citizen Rights To Entrepreneurial Activity

Author:Ivan Pankevych
Position:Doctor habilitation of science, professor of the Constitutional, European and International Public Law Department at the University of Zielona Góra, Poland; professor of the Constitutional Law and Sectoral Subjects Department at the National University of Water and Environmental Engineering, Ukraine
Pages:343-351
CONSTITUTIONAL HUMAN AND CITIZEN RIGHTS TO
ENTREPRENEURIAL ACTIVITY
Professor Ivan PANKEVYCH1
Abstract
An important factor in the development of modern society and a means to form a social state with the rule-of-
law is the constitutional declaration of human rights and freedoms as the highest value. However, formal recognition of
democratic and broad rights and freedoms does not imply the instant acquisition by an individual of the possibility to
fully exercise the values determining the rights. It is important to create an efficient social and legal mechanism for
implementation of rights and freedoms that includes guarantees to secure and protect them. That is why in this study, the
author employed such research methods as logical, observation, modeling, forecasting, comparative law analysis, etc.
The state recognizes a right of an individual and a citizen to entrepreneurial activity. At the same time, it shall guarantee
the possibility to exercise the kind of activity within its territory. The guarantees are stipulated not only in the Constitution
of Ukraine but also in the respective sectoral law. In addition, by recognizing agreements ratified by Ukraine to be part
of Ukrainian legal system, legislators confirmed that human and citizen rights protection, including also such important
right as the constitutional right to entrepreneurial activity, is not an exclusive internal affair of Ukraine. Despite the 30
years of market economy functioning in Ukraine, citizens still have inflated demands for the paternalistic role of the state.
The principle of social state fixed in the Constitution of Ukraine is partly restricting the exercise of the constitutional
right to entrepreneurial activity. In fact, equality before the law is often interpreted as the need to provide for equality of
results in society with the help of fair redistribution. At the same time, the shaping a market economy in Ukraine, with
the leading role of oligarchic business group s, resulted into mass pulling of their capital into offshore, investment of
profits gained in Ukraine into foreign businesses and real estate. Consequently, it generates distrust and disappointment
of Ukrainian citizens for their own state and its representatives, and impedes the reform p rocess in the country.
Keywords: constitutional rights, human rights, guarantee of human rights protection , economic rights,
entrepreneurial activities, market economy.
JEL Classification: K11, K14, K15, K19, K22, K31, P14
1. Introduction
After the Second World War, human rights have become a universal value and a basis for
civilization development. An important growth factor of modern society, a means of shaping social
and legal state is the constitutional declaration of human rights and freedoms as the highest value.
However, formal recognition of democratic and broad rights and freedoms does not imply that an
individual can immediately get a possibility to fully use the rewards the rights are based on. It is
important to create an efficient social and legal mechanism for the exercise of rights and freedoms
that would include the guarantees to secure and protect them.
As to the problem to guarantee the exercise of a constitutional human and citizen right to
entrepreneurial activity, the right was recognized in Ukraine only upon the collapse of the Soviet
Union. After all, under circumstances of having the Ukrainian SSR functioning as part of the USSR,
it was impossible to speak of any leverage to protect the right to entrepreneurial activity, as it could
not function legally. Moreover, any signs of entrepreneurial activity, as we define it today, was
deemed as illegal economic activity or profiteering entailing criminal liability. In particular, the
Criminal Code of Ukrainian SSR dated December, 28, 19602 that lost its effect on September 1,
20013, set a number of grounds to charge a person with criminal liability for profiteering. Thus,
Article 154 of the Code provides a definition for the concept of profiteering. It sets it as buying goods
or other items that have the set retail prices set thereupon from sales enterprises (organizations), or
1 Ivan Pankevych doctor habilitation of science, professor of the Constitutional, European and International Public Law Department
at the University of Zielona Góra, Poland; professor of the Constitutional Law and Sectoral Subjects Department at the National
University of Water and Environmental Engineering, Ukraine, ipankevych@gmail.com.
2 Кримінальний кодекс Української РСР від 28.12.1960 р. № 2000-05 (Criminal Code of Ukrainian SSR dated December, 28, 1960,
No. 2000-05).
3 Since September, 1, 2001, a new Criminal Code of Ukraine has entered into effect, dated April, 5, 2001. It took into account the
developments changing state and social life in Ukraine.

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