АДВОКАТ У ЦИВІЛЬНОМУ СУДОЧИНСТВІ: ПРАКТИЧНІ АСПЕКТИ ПРЕДСТАВНИЦТВА

Abstract

Since the establishments of an independent Ukrainian state, there have been numerous attempts to modernize and improve procedural legislation, as well as legislation that regulates the principles, tasks of activity and organizational and legal structure of the Bar. Such attempts aim at introducing and improving a fair and effective justice system in Ukraine, ensuring the right of access to the court, as well as including through reference to international standards. But the latter are regarded within a mandatory connection to the actual Ukrainian experience and the current state of affairs. The consequence of such reformation is the appearance of new forms, structures and procedural institutions, for example, the institution of dispute settlement with the participation of a judge. At the same time, the parties to the legal process and lawyers, as their representatives, are entrusted not only with the duty to master new legal protection tools, but also to test the imperfections of the new legislation in their own experience. And, unfortunately, constant radical changes in judicial practice do not always have proper grounds and perfect legal reasoning. And all these aspects together destroy in practice the principle of legal certainty – one of the sub-principles of the principle of the rule of law, which, according to part 1 of Art. 8 of the Constitution of Ukraine, is a recognized and valid one in Ukraine. The purpose of this research is of the theoretical and applied nature: based on the analysis of judicial practice, to show the imperfection of the procedural law and the tendency of chaotic changes in practical law enforcement – without proper grounds and justification, as well as to suggest ways to solve these issues. At the same time, the panoramic section of practical cases was chosen arbitrarily by the authors and due to the limited scope of the article, the complete picture has not been provided. It was formed based on the results of analytical research and systematization of the judicial practice of the Supreme Court. When forming and presenting the material, the authors used the method of court cases, which made it possible to structure the material according to the areas of imperfection in the legislation and to treat separately changes in practical law enforcement. The material is presented as an example of the work of a hypothetical lawyer who represents the interests of a specific person, as if his opportunities to express disagreement with the court decision could go beyond the scope of the court process. Based on the analysis of the norms of the civil procedural law and specific court decisions, it is concluded that negative factors, such as the appropriate quality of the law and frequently though not always justifiably changing judicial practice, affect public trust in the judicial branch of government. It has been suggested that it is impossible to change the situation by implementing the reforms alone. Greater advocacy is needed through self-governing institutions and doctrine development. It is the purpose of the latter that this scientific research serves – as some analytical component.