Problematic Aspects of Expert Participation in the Civil Procedure of Ukraine

Abstract

The article studies the problematic aspects of the expert’s participation in the civil procedure of Ukraine on the basis of research and analysis of the issues related to: 1) the delineation of the legal position (status) of the expert and the legal position of the specialist; 2) problematic aspects of distinguishing between the concepts (legal categories) of “expertise” and “judicial expertise”; 3) problematic aspects of judicial review; 4) the issue of legal liability of a court expert; 5) expert’s opinion at the court session (during the case); 6) the duration of the forensic examination as a factor of unjustifiably long (long-termed) court proceedings. According to the results of the research, conclusions and recommendations of theoretical and practical nature were formulated, in particular the following: 1. A forensic expert is a person who possesses special (professional) knowledge, necessary to clarify the relevant (specific) circumstances of the case, as well as the right to conduct forensic examination, which is of particular importance for the materials of a specific (determined) case in court and a written opinion (expert opinion), which (at the stage of the case) is an independent (separate) source of evidence, along with other existing (available) evidence (written, physical and electronic evidence, testimony of witnesses). 2. The legislator of Ukraine must give due consideration to the problematic aspects of the participation of a judicial expert in civil proceedings in order to resolve (or improve) them. In particular, this concerns the issues of the judicial position (status) of a forensic expert and his legal responsibility, since the accuracy (validity, error) and depth (validity, objectivity) of expert opinions is such that, in some (individual) cases, as practice shows, the expert's opinion (as a result of the forensic examination) may be the main (basic) and perhaps the only (possible) reliable source of evidence in civil cases. 3. Forensic examination shall be conducted only on the basis of the court order and for the purpose of making conclusion (substantiated, objective) on the investigated issues that are or will be the subject of judicial review. 4. The judicial expert (in accordance with the current legislation of Ukraine) must be considered in 3 aspects (as the subject of liability) and can be held liable, namely: disciplinary liability (as the specialist - aspect 1), financial liability (as the subject of civil (economic) legal relations - aspect 2), administrative and criminal (as the subject of procedural activity - aspect 3).