Problematic aspects of judicial powers to determine the civil remedy in light of the case-law of the Supreme Court of Ukraine

Abstract

In the light of the purpose of civil justice to provide effective protection of violated rights and taking into account the duty assigned to Ukrainian courts to assist parties in exercising their rights (while maintaining the objectivity and impartiality of the court), the court according to the principle ‘the court knows the law’, must not only independently determine the nature of dispute and the law that is to be applied to establish the rights and obligations of the participants, but also bring the claims of a lawsuit (the remedy) into line with the understanding established in judicial practice of the appropriate method of defense from the point of view of the ability to ensure the restoration of the plaintiff’s rights as fully and quickly as possible and within the limits of the result (legal consequences in the form of emergence, change or termination of legal relations), for the achievement of which the plaintiff appealed to the court. Refusal of a lawsuit due to the incorrect wording of its subject matter is a manifestation of excessive formalism, and it also leads, contrary to procedural economy, to an artificial duplication of legal proceedings regarding the same legal dispute, without any positive effect, due to which such an approach is incompatible with the purpose of civil proceedings and should not be allowed. The wording of claims, which are based on certain methods of protection, are constituent elements of the legal aspect of the claim, due to which they are quite naturally covered by the scope of the principle ‘the court knows the law’. At the same time, the proactive intervention of the court with the claims defined by the plaintiff must be accompanied by its procedural actions and decisions in order to comply with the principles of objectivity and impartiality of the court, the dispositive nature of civil proceedings and the adversarial nature of its parties. Among other things, the defendant must be provided with the opportunity to submit explanations and evidence in connection with the change (correction) of the subject of the lawsuit by the court, about which the court must notify the parties in the case in advance during the preparatory proceedings or consideration of the case on the merits. For a more predictable application of the principle ‘the court knows the laws’ in all its aspects, including its specific requirements, grounds and methods of its application, should be regulated in the procedural law.