ДОКАЗИ І ДОКАЗУВАННЯ У КРИМІНАЛЬНОМУ ТА ЦИВІЛЬНОМУ ПРОЦЕСАХ: ПОРІВНЯЛЬНИЙ АНАЛІЗ

Abstract

The article carries out a systematic and comparative analysis of doctrinal approaches to the definition of the concept of evidence and proof in criminal and civil processes, as well as an analysis of the legal norms of the criminal procedural and civil procedural codes, which define the concepts of evidence and proof. The purpose of this publication is a comparative analysis of evidences and proving in criminal and civil processes and the author’s development of the structure and content of evidence in criminal and civil processes based on the analysis of various doctrinal approaches to their understanding in the said processes. The article proves that, in general, the construction of Art. 84 of the current Code of Criminal Procedure of Ukraine and Art. 64 of the Criminal Code of Ukraine of 1960 are very similar, which gives some scientists grounds to unreasonably believe that the legislator left an information model of evidence based on the theory of reflection in the current Criminal Code of Ukraine. The author analyzes various concepts of evidence and proof in the modern theory of criminal procedural evidence and concludes that the most well-founded and the one that corresponds to both the epistemological and legal nature of court evidence is the concept according to which court evidence, being a category of objective-sub objective, represents the unity of factual data, their procedural sources and procedural form, which can be recognized as evidence itself only when it is recognized as such by the relevant subject of evidence or the court. In a specific criminal proceeding, evidence can be recognized as evidence itself if it meets such properties as propriety and admissibility. On the basis of a comparative analysis of doctrinal approaches to the definition of the concept of proof in the criminal process, the author concludes that, based on epistemology, logic, psychology, the theory of proof activity in the criminal process, the most well-founded concept of proof, which is based on the principles of the domestic criminal process and meets the needs of practice, is the concept, which defines criminal procedural evidence as the process of obtaining evidence and substantiating by it the subject of evidence and the court of its legal position and relevant decisions in criminal proceedings in accordance with its competence. The work reveals the content of obtaining evidence and substantiating its legal position and relevant decisions by the subject of evidence and the court. Analyzing doctrinal approaches to defining the concept and content of evidence and proof in a civil process in a comparative aspect with doctrinal approaches to defining the concept and content of evidence and proof in a criminal process, the author concludes that the terms «proof» and «proof» used in the theory of civil the process by individual scientists as different categories with different meanings are actually synonyms in the Ukrainian language. The author justifies that the fundamental categories of «evidence» and «proof» need unification at the doctrinal level, in the educational process and, accordingly, in the CPC and in the CPC of Ukraine, because from the point of view of epistemology, logic, theory of activity, psychology and law, evidence and proof in criminal and civil processes essentially have the same meaning. At the same time, the difference, in particular, of proof in criminal and civil processes lies in the object, purpose, tasks, means of proof and the legal status of the subjects of proof.