SPECIFICS OF COMPETITIVE RIGHTS IMPLEMENTATION IN SPECIAL PROCEEDINGS OF CIVIL PROCEEDINGS

Abstract

The article is devoted to the specifics of implementation of competitive rights in special proceedings. Doubts are expressed regarding the expediency of enshrining in Part 3 of Article 294 of the Civil Procedure Code of Ukraine the provision according to which cases of special proceedings are considered by the court in compliance with the general rules, established by this Code, with exception of the provisions on adversarial nature. It is noted that the absence of a dispute between the parties in cases of special proceedings raises doubts about the validity of the judicial procedure for resolving them. However, attention is drawn to the fact that society recognizes the judicial procedure for protecting certain indisputable rights, freedoms or interests as correct and appropriate, and the court decision is the act that most qualitatively performs its function in a certain area of legal relations, taking into account, at least, most categories of civil cases in special proceedings that are considered in this manner. It is argued that in context of legal nature of special proceedings cases, a dispute about law should not be confused with a dispute about facts and evidence. If disputed legal relations of a substantive nature arise, then, in accordance with Part 6 of Article 294 of the CPC of Ukraine, the court leaves the application without consideration and explains to interested persons that they have the right to file a claim on general grounds. As for challenging facts and evidence, these are adversarial rights that belong to all participants in special proceedings in accordance with Article 43 of this Code. A comparative analysis of provisions of Article 12 “Party Competition” with the provisions of Section IV “Separate Proceedings” of CPC of Ukraine and the substantive elements of legal nature of certain categories of civil cases considered by courts in the order of special proceedings was carried out, as a result of which a reasoned conclusion was made that the provisions of Part 3 of Article 294 of the Code, according to which cases of special proceedings are considered by the court in compliance with the general rules established by this Code, with the exception of provisions on adversarial proceedings, do not correspond to the actual state of affairs, since the majority of Article 12 provisions apply to participants in specail proceedings: equality of participants in special proceedings in exercising all procedural rights and obligations provided for by law (Part 2 of Article 12), the obligation to prove the circumstances that are relevant to the case and to which the applicant and other participants in special proceedings case refer as the basis for applying to the court with an application, providing the court with an opinion, etc., objections to granting the application, etc. (Part 3 of Article 12), the potential presence of risks for applicants in special proceedings cases of consequences associated with their taking or failing to take procedural actions (part 4 of article 12). It is also proven that when considering special proceedings cases, the court exercises the rights and obligations stipulated in Part 5 of Article 12 of CPC of Ukraine: management of the course of civil proceedings; clarification, if necessary, to the participants in the trial of their procedural rights and obligations, the consequences of committing or failing to commit procedural actions; assisting participants in the judicial process in exercising their rights provided for by this Code; preventing abuse of their rights by participants in the judicial process and taking measures to ensure that they fulfill their obligations.