scholarly journals GENERAL PRINCIPLES OF CIVIL JURISDICTION

2020 ◽  
Vol 10 (86) ◽  
Author(s):  
Nataliia Ryzhenko ◽  
◽  
Olena Korolova ◽  
Keyword(s):  
Civil Procedure ◽  
Judicial System ◽  
Unified Approach ◽  
Administrative Procedure ◽  
Procedural Law ◽  
Territorial Jurisdiction ◽  
Procedure Code ◽  
Procedural Code ◽  
The Moment ◽  
Definition Of

From the moment of becoming valid the law of Ukraine «On amendments to the Commercial procedural code of Ukraine, Civil procedural code of Ukraine the Code of administrative procedure of Ukraine and other legislative acts» of 3 October 2017 jurisdiction of courts courts is defined through the concept of «jurisdiction». This article considers the practical and theoretical significance of the amendments made by this legislative act to the current Civil Procedure Code of Ukraine. The significance of civil jurisdiction and its classification are revealed. To date, the science of civil procedural law has not developed a unified approach to the definition of «jurisdiction» and «civil jurisdiction». With regard to substantive and subjective jurisdiction, it is emphasized that these aspects should be taken into account together. Territorial jurisdiction is defined in the Civil Procedure Code of Ukraine as jurisdiction. The instance jurisdiction determines the scope of powers of the court of each link of the judicial system of Ukraine, and the territorial (jurisdiction) determines the limits of powers between courts within one judicial link to hear cases in the first instance. In general, the rules of territorial jurisdiction are less strict than the rules of substantive jurisdiction, as the level of the court is considered appropriate, but violations of the rules of territorial jurisdiction may create additional inconveniences, which, however, usually do not objectively affect the content of the decision. The difficulty of establishing the jurisdiction of the court at this stage of updating the judicial system of Ukraine is due to significant changes in procedural law. The process of harmonization of procedural legislation has contributed to the consolidation of a single conceptual apparatus, which has so far been used mostly at the theoretical level. Thus, at the legislative level, the jurisdiction of the courts of Ukraine is determined exclusively by the jurisdiction, which in the Civil Procedure Code of Ukraine, the Commercial Procedure Code of Ukraine and the Code of Administrative Procedure of Ukraine is divided into substantive and subjective, instance, territorial. However, the analyzed provisions of the Civil Procedure Code of Ukraine demonstrate the need to further improve the rules of civil jurisdiction.

LAWYER AS A SUBJECT OF PROFESSIONAL LEGAL AID IN CIVIL PROCEDURE OF UKRAINE

2021 ◽  
Vol 11 (2) ◽  
pp. 111-126
Author(s):  
M.V. SHPAK
Keyword(s):  
Civil Procedure ◽  
Legal Assistance ◽  
Legal Aid ◽  
Unified Approach ◽  
Administrative Procedure ◽  
Identical Structure ◽  
Procedure Code ◽  
Legal Science ◽  
Legislative Initiative ◽  
Civil Procedures

The revised version of the Civil Procedure Code of Ukraine was a consequence of the implementation of ideas on the unification of civil procedures. Now the Code of Administrative Procedure of Ukraine, the Economic Procedure Code of Ukraine have largely received an identical structure with the Civil Procedure Code of Ukraine. It is noteworthy that the aforementioned legislative acts have adopted a unified approach by the legislator, which has been enshrined in the Constitution of Ukraine, regarding the implementation of the so-called “advocate monopoly” in providing legal assistance to the participants of a muzzle considered by a court. “Advocate monopoly” was not perceived unambiguously in legal science. The approaches to this phenomenon are described in the article. Particularly it is noted a change in the positions of the subjects of the legislative initiative regarding the change of wearing and the legislative consolidation of the “advocate monopoly” in the direction of its restriction. Some ideas are assessed, which are set out in the draft Law of Ukraine No. 1013 “On Amending the Constitution of Ukraine (Regarding the Abolition of the Lawyer Monopoly)” dated 29 August 2019. Conclusions are given regarding the possible consequences if legislative novelties come into force that are proposed in the draft Law of Ukraine No. 1013 “On Amending the Constitution of Ukraine (Regarding the Abolition of the Lawyer Monopoly)” dated 29 August 2019. It is alleged that the abolition of the so-called “advocate monopoly” will positively affect the development of free law help in Ukraine. The author offers to provide new provisions to the content of the Civil Procedure Code of Ukraine, which will address in more detail the issue of participation of representatives in civil procedure.

scholarly journals A SENTENÇA DE MÉRITO PROLATADA COM A PRETERIÇÃO DO(S) LITISCONSORTE(S) NECESSÁRIO(S) UNITÁRIO(S): UMA ANÁLISE SOB A ÓTICA DOS PLANOS DOS ATOS PROCESSUAIS

2019 ◽  
Vol 16 (3) ◽  
pp. 220
Author(s):  
Lisiane Beatriz Fröhlich ◽  
Jonathan Iovane De Lemos
Keyword(s):  
Civil Procedure ◽  
The Other ◽  
Procedural Law ◽  
Res Judicata ◽  
Procedure Code ◽  
Other Hand ◽  
The Moment

RESUMOO presente estudo tem como objetivo geral compreender em qual dos planos dos atos processuais – existência, validade ou eficácia – reside o defeito que acomete a sentença de mérito prolatada com a preterição do(s) litisconsorte(s) necessário(s) unitário(s). A partir dos resultados obtidos com a pesquisa, constatou-se que, para o alcance de uma conclusão satisfatória a seu respeito, é imprescindível a verificação do momento em que é alegada a preterição do(s) litisconsorte(s) necessário(s) unitário(s). Assim, concluiu-se que, na eventualidade de a alegação ocorrer anteriormente ao trânsito em julgado, o defeito estará situado no plano da validade, tratando-se de uma nulidade absoluta. Por outro lado, após o trânsito em julgado, o que remanesce é o vício no plano da eficácia. Dessa forma, observa-se que a atual legislação processual civil não é incorreta, mas incompleta e carente de precisão. Isso porque, apesar da superlativa importância da definição do momento em que se está analisando o vício, o Código de Processo Civil de 2015 é omisso com relação a esse aspecto, potencializando as dúvidas a respeito do tema. Por fim, verificou-se que, devido à gravidade do defeito que acomete essa sentença – oriunda, sobretudo, da ofensa aos princípios constitucionais –, é possível que qualquer interessado o alegue. Além disso, pelos mesmos motivos, as vias processuais admissíveis para combater esse vício são variadas, podendo ser manejada a ação rescisória, a impugnação ao cumprimento de sentença, a querela nullitatis insanabilis ou, ainda, qualquer outro meio idôneo e compatível com a situação concreta.Palavras-chave: Litisconsórcio necessário unitário. Sentença de mérito. Inexistência. Invalidade. Ineficácia. ABSTRACTThe purpose of the present study is to understand in which of the plans of procedural acts – existence, validity or efficacy – is situated the defect that affects the judgment of merit prolated with the pretermission of the necessary unitary collegitimate. From the results obtained with the research, it was verified that, in order to arrive at a satisfactory conclusion about it, it is essential to verify the moment when is alleged the omission of the necessary unitary collegitimate. Thus, it was concluded that, if the claim occurs before it is formed the res judicata, the defect is situated in the validity plan, being an absolute nullity. On the other hand, after the res judicata is formed, what remains is the inefficacy. Therefore, it was verified that the current civil procedural law is not incorrect, but incomplete and lacking precision. This is because, in spite of the superlative importance of defining which moment the defect is being analyzed, the Brazilian Civil Procedure Code of 2015 do not consider this aspect, potentializing doubts about the issue. Finally, it was discovered that, because of the severity of the defect that affects this veredict – originated, principally, from the offense to the constitutional principles – it is possible that any interested subject of the process can claim it. Besides that, for the same reasons, it is admitted the use of several procedural means to combat this decision, like the rescissory action, the enforcement’s impugnment of the judgment, the querela nullitatis insanabilis or any other suitable procedural means and compatible with the specific situation.Keywords: Necessary unitary joinder of parties. Judgment of merit. Inexistence. Invalidity. Inefficacy.

The Content of the Concept of «Conclusion» in the Civil Process

2021 ◽  
pp. 48-53
Author(s):  
Ryzhkov K. S. ◽  
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
General Concept ◽  
General Definition ◽  
Civil Process ◽  
Procedural Law ◽  
Expert Opinions ◽  
Procedure Code ◽  
The Russian Federation ◽  
Definition Of

The article analyzes the problems associated with the content and scope of the concept of «conclusion» in civil procedural law. The absence of a definition of the concept of «conclusion» in the current legislation is noted, as well as the discussion that exists in the scientific literature on this issue. Attention is drawn to the application of this concept to procedural institutions of various contents (expert opinion and opinion in accordance with Articles 45 and 47 of the Civil Procedure Code of the Russian Federation). The aim of the study is to establish the content of the general concept of «conclusion» in the civil process by formulating its definition. To achieve this goal, the author has set the task of identifying differences between different types of conclusions in the civil process. The author also set the task of identifying common features that both expert opinions and conclusions have in accordance with Articles 45 and 47 of the Civil Procedure Code of the Russian Federation. In the framework of this study, methods such as the analysis method, as well as system-structural and formal-legal methods were applied. The content of the procedural rules in their totality and comparison, including the norms of other procedural branches of law, is analyzed. The application of the above methods allowed us to fully achieve the goals and objectives of the study, to formulate scientifically based conclusions. Based on the results of the study, the author gives a general definition of the concept of «conclusion» in civil procedure law, applicable to all types of opinions that exist within the framework of the norms of the Civil Procedure Code of the Russian Federation. Attention is drawn to the nature of the conclusion as a judgment of an evaluative nature. As signs of a conclusion in a civil process, its subject (the subject of civil process) and a specific procedural form are named.

scholarly journals LEGISLATIVE REGULATION AND PRACTICAL IMPLEMENTATION OF SUMMARY PROCEEDING IN CIVIL LITIGATION

2020 ◽  
pp. 12-17
Author(s):  
Zh. Vasylieva-Shalamova ◽  
I. Mamatiuk
Keyword(s):  
Civil Procedure ◽  
Practical Aspect ◽  
Civil Litigation ◽  
Practical Implementation ◽  
Main Task ◽  
Procedural Law ◽  
Procedure Code ◽  
Legislative Regulation ◽  
Civil Cases ◽  
Definition Of

As a result of the reform of the Ukrainian Civil Procedural Law in 2017, civil justice has undergone significant changes. That is, – courts of first instance may consider civil cases in a general proceeding or in a summary proceeding. The issue of legislative regulation and practical implementation of summary proceeding in civil litigation is in the focus of scientists and legal practitioners. To date, a separate Chapter 10 of Section III of the current Civil Procedure Code of Ukraine, which has the title – "Review of cases in summary proceedings” is devoted to a summary proceeding. This Chapter of the Civil Procedure Code of Ukraine determines the categories of cases to be considered in the procedure of summary proceedings, as well as the cases that cannot be considered in the procedure of summary proceeding, procedural features and the procedure for considering such cases. At the same time, there are a number of disadvantages that cause certain problems that negatively affect to the theoretical basis and practical aspect of summary proceeding implementation in civil litigation in the part of the normative consolidation of the summary proceeding in the Civil Procedure Code of Ukraine. Consequently, the issue of "minor cases" and the determination by courts of grounds for the consideration in summary proceeding of civil cases is the subject of our attention in this article. Particularly these issues concern the lack of legal definition of the concept of "minor cases" at the legislative level, as well as the lack of clear criteria for assigning a particular case to the category of "minor" ones. Special attention should be paid to the effectiveness of the introduction of so-called "cassational filters" for minor cases in the current Civil Procedure Code of Ukraine. The authors concluded that it is necessary to give a legitimate definition of the concept of minor cases and clear criteria for their definition as well as the fact that the institution of summary proceeding requires further improvement and development. So, it is considered appropriate to draw attention to motivating the courts` decisions, as well as wider application of the provisions of the principles of proportionality of civil judicial proceedings and cooperation between the parties and the court to ensure the realization of the main task – the effective protection of claimant`s violated rights.

scholarly journals Some Arguments about the Benefits of Applying the System of Civil Procedure Law in Civil Proceedings

2020 ◽  
pp. 060-066
Author(s):  
A. D. Zolotukhin ◽  
◽  
L. A. Volchihina ◽  
Keyword(s):  
Positive Result ◽  
Civil Procedure ◽  
Legal Norms ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Definition Of ◽  
Relationship Of ◽  
The Relationship

On the basis of research, the structure of civil procedural law is defined as a system rather than an elementary set of legal norms and institutions. Determining the significance of the system of civil procedural law, it was concluded that having individuality, such a structure is one of the features that distinguish civil procedural law from other branches of law. The authors also come to the conclusion that the established properties of the system of civil procedural law, such as unity, interconnection (interaction) and independence of application, determine the possibility of applying individual elements of the structure of the system of civil procedural law, when considering substantive situations as an independent both individually and collectively. This ensures the possibility of obtaining the required positive result and characterizes it as universal. Critically examining various concepts, the authors offer their own definition of the concept of the system of civil procedural law. The conclusion is also made about the relationship of the system of civil procedural law with the principles of civil procedural law and the procedural form of civil legal proceedings.

scholarly journals ISSUES AND PROSPECTS FOR IMPROVEMENT IN SIMPLIFYING THE PRE-TRIAL INVESTIGATION

2021 ◽  
Vol 75 (2) ◽  
pp. 132-139
Author(s):  
Andriy Vorobey ◽  
Keyword(s):  
Legal Status ◽  
Full Range ◽  
Practical Importance ◽  
Criminal Procedure ◽  
Negative Consequences ◽  
Procedure Code ◽  
Criminal Offenses ◽  
The Moment ◽  
Definition Of ◽  
National Police

The article deals with the problematic issues of pre-trial investigation of criminal offenses, under investigation by the units of the National Police of Ukraine, have not been studied in the scientific literature. The author of the article points out the problems of the legal status of a head of an inquest body, the author's definition of this term is given and proposed changes to the current criminal procedural legislation, which should eliminate legal gaps. Considered the inconsistencies of the current criminal procedural legislation in terms of regulating the order of attachment for seizure of the property during the pre-trial investigation of criminal offenses. Analyzed judicial practice on this issue and proposed changes to legislation according to the needs of practice. The drawbacks are noted in establishing the terms of pre-trial investigation of criminal offenses, which are caused by the need to conduct psychiatric and other forensic examinations, it is proposed to provide in the Criminal Procedure Code of Ukraine for an inquiry period of 2 months from the moment a person is informed of suspicion. The author's specified legal inconsistencies in the issue of regulating the conduct of a search during an inquiry, it is indicated that there is a need to standardize Articles 234–236 of the Criminal Procedure Code. Due to fact that the activities of the inquest bodies of the National Police of Ukraine are noticeably inefficient, it is proposed to introduce a shortened inquiry procedure in order to implement the principle of economy in the criminal process and saving resources used during the pre-trial investigation.The current procedural form of criminal investigation in Ukraine provides for the need to conduct a full range of investigative and procedural actions in a short time, even for obvious criminal offenses, when the suspect unequivocally pleads guilty and compensates for the damage, which has negative consequences. The introduction of an abbreviated procedure for inquiry is possible only for a clearly defined range of criminal offenses, the legislation must approve guarantees to ensure the rights of suspects from law enforcement abuses and the criteria under which an abbreviated form of inquiry is impossible. The study of the possibility of implementing an abbreviated order of inquiry is of practical importance and is an important area for further study.

scholarly journals ZASADA PRAWDY FORMALNEJ W POLSKIM CYWILNYM PRAWIE PROCESOWYM A ROZUMOWANIA NIEMONOTONICZNE

2016 ◽  
Vol 16 (2) ◽  
pp. 37
Author(s):  
Marcin Trepczyński
Keyword(s):  
Civil Law ◽  
Legal Reasoning ◽  
Civil Procedure ◽  
Civil Court ◽  
Procedural Law ◽  
Procedural Code

The Principle of Formal Truth in the Polish Civil Procedural Law and Non-monotonic ReasoningSummary This paper analyses the implementation of the formal truth principle in the Polish civil procedural code in the light of non-monotonic reasoning. The author starts by presenting the concept and applications of non-monotonic reasoning, and the formal truth principle and its place in Polish civil procedure. Next he examines the conditions in which non-monotonicity is admissible in civil court reasoning. While legal reasoning may generally be regarded as non-monotonic due to the assumptions it employs and treats as defensible, the author’s observations on the basis of selected civil law cases lead him to the conclusion that the use of the formal truth principle as a viable instrument in law simply forces courts to make non-monotonic inferences. In other words, adopting this principle means accepting non-monotonic reasoning, or even more: if the court keeps to the formal truth principle it is using one of the types of non-monotonic logic.

JUDICIAL REFORM OF THE LATE 20TH – EARLY 21ST CENTURIES IN RUSSIA

2021 ◽  
Vol 11 (5) ◽  
pp. 191-221
Author(s):  
V.M. ZHUIKOV
Keyword(s):  
Russian Federation ◽  
Major Change ◽  
Civil Procedure ◽  
Judicial System ◽  
Judicial Reform ◽  
Federal Law ◽  
Current Trends ◽  
Procedure Code ◽  
The Russian Federation ◽  
Civil Cases

The author analyzes the reform of the Russian legislation regulating the activity of courts for consideration of civil cases, the reform, which began in the 1990s and continues to this day. Highlights the main stages of the reform related to the adoption of the Constitution of the Russian Federation 1993, changes in the judicial system, with the adoption of the Commercial Procedure Code of the Russian Federation in 1992, 1995, 2002, with a major change of Civil Procedure Code of the RSFSR 1964 and the entry into force of the current Civil Procedure Code of the Russian Federation, 2002. In addition, the author calls the current trends in the development of procedural legislation, including reforms made by Federal Law of 28 November 2018 No. 451-FZ.

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