| Article | Dispute Settlement with the Participation of a Judge as an Independent Type of a Conciliation Procedure in Economic Litigation |
|---|---|
| Authors | YAROSLAV YAROSH |
| Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) |
| Issue | 6 / 2022 |
| Pages | 149 - 166 |
| Annotation | In the process of development of the legal system, the mankind came to a conclusion that a settlement of disputes, without of which it is impossible to imagine society, doesn’t always require court procedures. Along with the advantages of judicial review of the disputes as well there is a point about the growing number of its disadvantages. The duration of the court process, the excessive amount of the legal costs, the results of the judgement in court which, as a rule, leave one of the parties dissatisfied and encouraging the conflicting parties to find other extrajudicial forms of dispute resolution. The states themselves contribute to the development of the conciliation procedures. The main reason of this is a constant increase in the workload on judges, which enhances the judicial apparatus and expenses for ensuring its activities, the high cost of the judicial process for the state itself due to its duration, etc. That is why various conciliation procedures are not only recommended to the parties, but those are increasingly introduced into the national legislation systems of the various states. World scientific doctrine and practice have developed a number of alternative ways of resolving the economic disputes. Ukraine did not remain aloof from these processes of development. Back in 2017, a new institute of economic justice was created in the national economic procedural legislation and, as a result, according to the judicial practice – the institute of a dispute settlement with the participation of a judge was created. However, the effectiveness of the both establishment and implementation of a new institution of economic justice can be determined not only by the legal norms adopted in the current legislation of Ukraine, but the most important by its practical application use – judicial practice, which will make it possible to identify problematic aspects and shortcomings of the legal support of the institution of dispute regulation with the participation of a judge as a kind of a conciliation procedure in commercial proceedings. The purpose of this article is to substantiate the provisions of the theoretical and legal basis of the dispute settlement with the participation of a judge as an independent type of a conciliation procedure in economic litigation. The existing doctrinal approaches to the definition and features of the institution of dispute settlement with the participation of a judge analyzed in the article, as well as the provisions of the current legislation of Ukraine regarding to the principles of its regulation, provided grounds for defining the dispute settlement procedure with the participation of a judge as a special, independent conciliation procedure conducted by the mutual consent of the parties in within the framework of legal proceedings before the start of consideration of the litigation in essence, and is carried out with the participation of a judge as a mediator in the form of joint and/or closed meetings with an aim of a peaceful settlement of the dispute. The author substantiates that the dispute settlement procedure with the participation of a judge can be considered as a special conciliation procedure, which is carried out by the mutual consent of the parties within the framework of the legal proceedings before the start of the consideration of the case in essense, and is carried out with the participation of the judge as a mediator in the form of joint and/or closed meeting for the peaceful settlement of the dispute. It is proved that the concepts of “dispute settlement with the participation of a judge” and “mediation” are not similarand have certain mutually exclusive features, in particular, the main feature by which these conciliation procedures can be distinguished in the current legislation of Ukraine is the extrajudicial nature of mediation, therefore, an integrated approach to the dispute settlement process with the participation of a judge in economic procedural legislation. It was established that one of the shortcomings of the institution of dispute regulation with the participation of a judge is the existence of a restriction on the possibility of participation in the procedure under investigation with third parties who make its’ independent claims according to the subject of the dispute. We consider that the restriction provided for in Clause 3 of Part 2 of an Article 186 of the Civil Procedure Code of Ukraine regarding the prevention of settlement of the disputes with the participation of a judge in disputes in the event of the entry into the case of a third party that makes independent claims regarding to the subject of the disputes are unjustified and should be excluded. It is proved that in accordance with the Part 2 of Article 188 of the Civil Procedure Code of Ukraine, settlement of a dispute with the participation of a judge is carried out in the form of joint and/or closed meetings. A proposal was made regarding to the expediency of changing the name from the “closed meetings” to the “individual meetings”. |
| Keywords | conciliation procedures; dispute settlement; court procedure; dispute settlement with the participation of a judge |
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