МІСЦЕ ЕКСПЕРТА У СКЛАДІ УЧАСНИКІВ СУДОВОГО ПРОЦЕСУ В ЦИВІЛЬНИХ СПРАВАХ

Abstract

The purpose of the article is to clarify the place of an expert among the participants of the legal proceedings in civil cases. Methods. The article uses general scientific and special scientific methods of research as: method of analysis, systemic one, deduction, generalization, historical method, comparative legal method, analysis of documents, and grouping. Results and Conclusions. The question of determining the place of the expert among the participants in the legal proceedings in civil cases is examined in the article. For this purpose, a historical comparative analysis of the Civil Procedural Code of Ukraine (hereinafter – the CPC of Ukraine) in the versions of different years, a comparative legal analysis of foreign legislative experience, and the doctrinal approaches of domestic scientists to the solution of the specified issue were made. On the basis of the study of the civil procedural legislation of the Europe, Asia and North America countries, it was established that they use two approaches to solving the issue of determining the place of the expert among the participants in the legal proceedings: the absence of a legal fixation of the expert place within a certain group of participants in the proceedings; legislative confirmation of the expert place as a part of "other participants in the legal proceedings". The author defines the main criterion for classifying the expert as "other participant in the legal proceedings" is a legal interest in the consideration of the case, namely one of its elements. On the basis of the study of domestic scientific approaches, it was established that in the structure of the "legal interest" concept, it is reasonable to distinguish two components: the material-legal and the procedural-legal, where the latter belongs to the expert, which determines his assignment to "other participants in the legal proceedings". At the same time, the impossibility of recusal of the expert within the framework of a civil case on the basis of the presence of such an interest is substantiated. Based on the differences in procedural and legal functions in the case and the relation to the administration of justice by the court, the division of the other participants in the legal proceedings was carried out into: persons, who organisationally ensure the justice performance by the court, and persons, who contribute to the court's establishment of facts and circumstances relevant to the case, and the expert can be assigned to the second subgroup. In connection with that, it is expedient to set out Art. 65 of the CPC of Ukraine in the new version in order to legislate such a division.