Article | Some Aspects of Dispute Settlement with Participation of a Judge In Economic Court Proceedings |
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Authors |
LIUDMYLA NIKOLENKO
Doctor of Law, Professor, Head of the Department of Legal Disciplines of the Donetsk Law Institute of the Ministry of Internal Affairs of Ukraine (Mariupol, Ukraine) Orcid ID: https://orcid.org/0000-0002-3437-6968 Researcher ID: http://www.researcherid.com / rid / I-2143-2018 nln2006@ukr.net
SERGIY MASLOVSKYI
Judge of the Commercial Court of Luhansk region (Kharkiv, Ukraine) Orcid ID: https://orcid.org/0000-0002-7563-621X law31s13@gmail.com
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Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
Issue | 7 / 2020 |
Pages | 110 - 119 |
Annotation | The high level and quality of administration of justice in countries which have a well-developed legal system is demonstrated not only through the existing coherent judicial system, but also through the system of conciliation procedures. To such procedures we may ascribe the institute of dispute settlement with participation of a judge, which provides a fair and legitimate resolution of a dispute and provides a guarantee andopportunity for implementing the main goal of economic court proceedings. The study of the institute of dispute settlement with participation of a judge is also relevant given that the conciliation procedure is an alternative to the customary court procedure. However, as compared with the latter, using the conciliation procedures the parties may independently determine the ways to mutual understanding and find the most mutually beneficial resolution to a dispute. The purpose of the article is to determine the specifics of dispute settlement with participation of a judge, with due regard for changes in legislation and the judicial reform processes in Ukraine, and to establish the ways towards improvement of legal provisions relating to dispute settlement with participation of a judge, which is important both in terms of the theory of procedural law and in terms of judicial practice. The authors established that dispute settlement with participation of a judge should be regarded as the institute of economic procedure law encompassing a system of rules which are aimed at peaceful settlement of relations between parties to a dispute with participation of a judge, with a view to resolving a dispute on the merits based on confidentiality, voluntariness and mutual understanding. The article suggests that the procedure of dispute settlement with participation of a judge should be improved, namely, in terms of the following: duties of a judge; form of implementation; time limits for dispute settlement, etc. Based on the study result, the authors suggest relevant amendments and additions to the Code of Economic Procedure of Ukraine for improving dispute settlement with participation of a judge, with the aim of ensuring the most efficient application. The authors conclude that there is a need for further development of the institute of dispute settlement with participation of a judge. It is noted that development of this institute will reduce the load on judges, speed up dispute resolution and, consequently, will reduce the number of appeals and cassation appeals. In some cases, this institute may be used as a means to delay consideration of a case, change a judge, i.e., an abuse of procedural rights. But it should be regarded primarily as a means of legal education and introduction of legal culture not only for participants to a case but also from the perspective of changing public consciousness and reorienting it towards dispute resolution on the basis of reconciliation.
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Keywords | dispute settlement with participation of a judge; mediation; dispute resolution; alternative dispute resolution methods; conciliation; mediator’s involvement; economic court proceedings |
References | Bibliography Journal articles 1. Ostafiichuk L, ‘Pryntsypy vrehuliuvannia sporu za uchastiu suddi’ [‘Principles of dispute Resolution with the Participation of a Judge’] (2019) 146 Problemy zakonnosti 257 (in Ukrainian). 2. Petrenko N, ‘Vrehuliuvannia sporu za uchastiu suddi u hospodarskomu sudochynstvi’ [‘Settlement of a Dispute with the Participation of a Judge in Commercial Litigation’] (2018) 10 Pidpryiemnytstvo, hospodarstvo i pravo 74 (in Ukrainian). 3. Podokovenko T, ‘Mediatsiia yak sposib alternatyvnoho rozv’iazannia konfliktov: heneza ta instytutsiini zasady’ [‘Mediation as a Way of Alternative Conflict Resolution: Genesis and Institutional Principles’] (2017) 1 Aktualni problemy pravoznavstva 20 (in Ukrainian). 4. Stepanova T, ‘Pryntsyp arbitruvannia yak osnovnyi pryntsyp hospodarskoho sudochynstva’ [‘The Principle of Arbitration as the Basic Principle of Commercial Litigation’] [2008] 20 (11) Rynkova ekonomika: suchasna teoriia i praktyka upravlinnia 126 (in Ukrainian). 5. Zeldina O, ‘Novely sudovoi reformy: pozytyvni ta nehatyvni naslidky’ [‘Judicial Reform Novels: Positive and Negative Consequences’] (2017) 43–44 Yurydychnyi visnyk Ukrainy 4–5 (in Ukrainian).
Theses 6. Fedorova T, ‘Hospodarska yustytsiia v systemi instytutiv suchasnoi derzhavy’ [‘Economic Justice in the System of Institutions of the Modern State’] (dys kand yuryd nauk, 2018) (in Ukrainian). 7. Odosii O, ‘Zabezpechuvalni zakhody v tsyvilistychnomu protsesi Ukrainy’ [‘Security Measures in the Civil Process of Ukraine’] (dys kand yuryd nauk, 2018) (in Ukrainian).
Newspaper articles 8. Cerhieieva S, ‘Vrehuliuvannia sporu za uchastiu suddi u hospodarskomu protsesi’[‘Settlement of a Dispute with the Participation of a Judge in the Economic Process’] (Yurydychna hazeta, 2018) <https://yur-gazeta.com/publications/practice/gospodarskepravo/ vregulyuvannya-sporu-za-uchastyu-suddi-u-gospodarskomu-procesi.html> (accessed: 22.06.2020) (in Ukrainian). 9. Kibenko O, ‘Sudova mediatsiia v hospodarskomu protsesi – buty chy ne buty?’ [‘Judicial Mediation in the Economic Process – to be or not to be?’] (Tsenzor.Net, 2018) <https://censor.net.ua/blogs/3051121/sudova_medatsya_v_gospodarskomu_protses_ buti_chi_ne_buti> (accessed: 22.06.2020) (in Ukrainian). 10. Konovalenko D, ‘Sudova mediatsiia – challenge dlia Ukrainy’ [‘Judicial Mediation is a Challenge for Ukraine’] (Yurydychna Hazeta, 2017) <http://yur-gazeta.com/ publications/practice/mizhnarodniy-arbitrazh-ta-adr/sudova-mediaciya--challengedlyaukrayini.html> (accessed: 22.06.2020) (in Ukrainian).
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