Subject and subject jurisdiction in the plane of legal certainty: problems in civil procedure law

Abstract

This article is devoted to the subject and subject-matter jurisdiction in the plane of legal certainty. The article analyzes the problems through the prism of legal certainty, arising when attributing a case to the competence of courts: general, administrative and economic because the civil legislation does not enshrine any rules of attributing a particular case to the competence of a particular court. Ukraine in 2014 chose the European vector of development, so the legislation, in particular the civil procedure, must meet the criteria of the rule of law, the foundation of which is the rule of law. The interrelation of subject and subject-matter jurisdiction and the rule of law is revealed through the elements of legal certainty, namely: clarity, precision, provision of law, the ambiguity of its norms, established court practice, mandatory execution of court decisions, finality of court decisions. Considerable attention to this topic was paid by scientists A. Savchuk, A. Tkachuk, and A. Monayenko. The authors analyzed quite a few decisions of the European Court of Human Rights and noted that since the civil procedure law does not contain criteria for distinguishing the subject and subject jurisdiction, so a significant role is played by the court practice, which should be established and stipulated. According to the authors, this does not mean that the Supreme Court should not be able to deviate from its previous legal positions, as the development of judicial practice is not contrary to proper law enforcement, as the lack of an evolutionary and dynamic approach prevents any changes or improvements. The Supreme Court in such situations is only required to provide a more substantive justification for deviating from previous legal positions. As a result of the study of scientific works, and court practice, we analyzed each criterion of delimitation of subject and subject-matter jurisdiction, which were made in the exercise of judicial proceedings by the courts, and gave examples from judicial practice. The legislator is obliged to fix them at the level of the civil procedural law, which in turn will promote public confidence in the state, and the judicial system, to ensure the proper attitude to the law and the law as a whole.