ДОКАЗУВАННЯ У ЦИВІЛЬНОМУ ПРОЦЕСІ: ДО ВИЗНАЧЕННЯ СТРУКТУРИ ТА ЗМІСТУ

Abstract

One of the main means of ensuring fundamental human rights and freedoms is the civil process as one of the branches of law, as well as the professional activities of judges, notaries, executors and other authorized persons to whom the state has delegated tasks to implement, protect, defend and restore rights, freedoms or interests of persons in the field of civil proceedings. The CPC of Ukraine in Chapter 5 «Evidence and Proof» stipulates that each party must prove the circumstances to which it refers as the basis of its claims or objections, except as provided by this Code (Part 1 of Article 81). However, there are no provisions in the current civil procedural law that would determine the content of the evidence. The purpose of this publication is the author’s development of the structure and content of evidence in civil proceedings based on the analysis of various doctrinal approaches to their understanding in civil proceedings using comparative analysis of understanding the structure and content of evidence in other branches of law. Evidence is a formal subsystem of proof, which determines the dependence of the subject of proof on the subject of proof to achieve the most favorable result of civil proceedings, notarial, enforcement proceedings for persons involved in them. Therefore, their main differences will be in the nature of the actions to which the activities of their participants. That is, the subject of proof and the subject of proof are correlated as part and whole. In turn, the subject of proof in civil proceedings is a set of legal circumstances with which the law connects the emergence of substantive and procedural rights and obligations, as well as procedural rights and obligations to prove them, which form a conditional system in each case and necessitate the choice of evidence to prove their existence or refutation. All acts adopted by authorized subjects for civil proceedings, notarial, enforcement proceedings within the powers granted to them, are based not only on their inner conviction, but also must meet the established current civil procedural, notarial procedural and executive procedural requirements, which should be divided according to three criteria: normative, formalized and mental. It is concluded that it is expedient in civil procedural law and practice to use the term «evidence», which should be understood as the receipt of evidence by the parties and the court, as well as their use in proving the facts and circumstances. The content of evidence should be defined in the current CPC of Ukraine in Chapter 5 «Evidence and evidence», which will increase the effectiveness of civil procedural evidence.