Suchergebnisse

The features of leaving the statement of claim without consideration in connection with the repeated plaintiff's default as the nature of the reasons for his/her absence at trial are investigated. In particular, the degree of influence of their validity on the exercise of court powers to terminate proceedings without a court decision on the merits of civil claims is studied. Attention is paid to the necessity and expediency of taking into account the valid reasons for non-appearance of the plaintiff and (or) his/her representative in determining the legal consequences of his/her default at trial. In particular, applying to the institution of leaving the statement of claim without consideration, on the grounds provided for in paragraph 3 of Part 1 of Art. 257 of the Civil Procedure of Ukraine, which will ensure the balance of interests of the plaintiff and the defendant in the proceedings: the plaintiff will be guaranteed the possibility of practical exercise of his/her right to a fair trial, and the defendant will be protected from excessive delay of the case.The provision that the validity of reasons for the plaintiff's default at trial should remain an evaluative category is substantiated. It is decided by the court in each case separately, taking into account a combination of such factors as 1) the nature of the circumstances preventing the plaintiff's appearance at trial; 2) the proof of their existence by appropriate and admissible evidence; 3) the degree of influence of these circumstances on the impossibility of the plaintiff's appearance at trial; 4) the impossibility of using other alternates (regimes) of participation at trial; 5) the preliminary behavior of the plaintiff and (or) his/her representative in the case, the complexity of the case, the quantitative characteristics of the court hearings in the case, the total duration of the civil proceedings, etc. If the court, taking into account the above-mentioned criteria, finds such a circumstance to be unreasonable for the plaintiff's default at trial, the court should argue the reasons for such a decision on each of these criteria, which would ensure the objectivity and validity of the court interpretation of such a legal construction as "the validity of the reasons for default at trial".

The institution of separation legislative provisions of those EU member states that have chosen a separation legal regulation model, according to which the direct dependence of divorce on separation is recognized. It means that the spouse who wishes to dissolve the marriage must be in a state of separation issued by competent authority decision for some time (formal separation).

Such EU member states as Denmark, Ireland, Italy have chosen the defined model for legal regulation of separation. Based on this study, the characteristic features of this model for legal regulation of separation are highlighted, namely:

the main purpose of the separation institute in the legislation of these states is to provide spouses with time to decide on the future for their marriage: either divorce or reconciliation;

a separate residence regime may be established by a decision of the competent authority (court, prosecutor, public administration) by mutual agreement or at the request of one of the spouses, despite the objections of the other;

the existence of a clear list of grounds in the legislation to establish separation on the application of one of the spouses;

the existence of any consequences of the individual residence regime is linked to the determination of the fault of one or both spouses in the establishment of a separate residence regime on one or another basis;

separation would result in the termination of the marital property regime, the termination of the marriage contract, except for the provisions re- lating to the separate residence regime, and the termination of the paternity presumption.

Although this model for legal regulation of separation is still relevant, the trend toward the simplification of legal regulation of divorce proceed- ings, has led to the complete rejection of separation as one of the prerequisites for divorce (in the event of mutual consent of the spouses to the termination of marriage) or reduction of spouse's stay in separation.