THE ROLE OF THE COURT IN CHOOSING THE CIVIL CASE PROCEDURE: PROBLEMATIC ISSUES
In: Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, Issue 109, p. 15-18
Following the 2017 reform the civil litigation has been significantly changed. The action proceedings, inter alia, have been divided into general and simplified procedures. Therefore, the role of the court in determining the procedure for of the case consideration is decisive, since the law does not impose the obligation to apply to the court in a specific procedure but stipulates respective court power and criteria for its implementation.
Thus, the case may be heard in the general proceedings or in a simplified procedure, which provides for the possibility of a court hearing or without such a hearing, in accordance with the grounds and criteria laid down in Article 11, Parts 4 and 6 of the Article 274, Parts 1 and 2 of the Article 277, as well as Part 6 of Article 279 of the Civil Procedural Code of Ukraine, the common only approaches of which have not yet been achieved in practice. Therefore, the object of attention of the author is the problems of differentiation and determination by courts of specific grounds for consideration of civil cases according to the general or simplified procedure of action proceedings, as well as the appointment of a court session,
based on the analysis of first instances courts decisions, adopted during 2018-2019 and available for the research on the website of the Unified State Registry of Judgments.
As a result, the problematic issues that have arisen in the jurisprudence, in particular, regarding the decisive role of the court in choosing the civil case procedure have been identified and the relevant solutions have been proposed. The role of the court is to determine whether there are grounds for a simplified procedure, whether there are no grounds for a mandatory general procedure for this case consideration, as well as an assessment of the merits and motivation of the plaintiff's and defendant's motions for choosing the procedure for this case consideration, in particular, as it is defined in Article 11 of the Civil Procedural Code of Ukraine. Exercising the abovementioned powers, the court must first of all
proceed with the goals of civil justice and its general principles as well as Article 19 of the Civil Procedural Code of Ukraine.