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Section 1. Civil Procedure
Vasylyna Nataliia Vladimimirovna, Associate professor, Faculty of law, of the Department of Justice, Taras Shevchenko National University of Kyiv E-mail: n.vasylyna@gmail.com
RESOLUTION AND SETTLEMENT OF CIVIL DISPUTES
Abstract: the paper is devoted to the actual issues of participation of a judge in the procedure of conciliation procedure and issues of pre-trial, extrajudicial conciliation. The author focuses on the difference between the concepts of "resolution of civil dispute" and "settlement of civil dispute". Keywords: civil dispute, mediation, conciliation, judge, compromise, conflict.
The Civil Procedure Code of Ukraine, adopted in the new wording, initiates a series provisions for civil justice in Ukraine. Among them, it should be noted the procedures of conciliation in civil proceedings, in particular, with the participation of a judge. Legislative consolidation also requires the possibility of conciliation procedures by a notary. This is a logical continuation of the implementation of the concept of conciliation both during the judicial proceedings and in the order of pre-trial, extrajudicial conciliation or settlement of a civil dispute. At the same time, it should be emphasized that the viability of such innovations requires understanding of its content characteristics, principles of activity, and, in our opinion, the most important place in the system of resolution and settlement of civil disputes.
The change of the modern world first of all occurs due to the evolutionary improvement of society, and therefore social in particular, legal relations. The mechanisms of self-regulation are of particular importance in this case. Provided to the subjects of the legal relationship certain independence in establishing, at their discretion, the rules of conduct and ensuring the control of their compliance is litmus in relation to the level of social justice and democracy.
The highest level of legal consciousness of a society should be the maximum delegation of the state of its exclusive powers to civil society institutions.
Stability and a certain consistency in the departure of civil society from paternalism in the construction of social relations (lat. paternus - parent, denotes a built-in system of relations including legal, which allows to establish clear patterns of behavior of subjects of these relations, regardless of the public or private sphere of their existence) and maximum approximation to pluralism (lat. pluralis - plural), which in turn implies a plurality ofviews, the right to free choice, the existence of alternatives will ensure the development of an effective state apparatus in a democratic society.
The idea of introducing conciliation procedures as one of the priority areas for reforming national justice has been reflected in the new wording of the Civil Procedure Code of Ukraine.
It should be noted that the issue of judicial and extrajudicial conciliation procedures, procedural agreements, definition of the concepts of "dispute about the right", "conflict", "compromise", "form and method of protection", etc., paid attention by S. A. Kurochkin, I. V. Reshetnikova, M. V. Gvozdareva,
Section 1. Civil Procedure
D. L. Davydenko, S. V. Bobrovnik, A. A. Brizhynsky, J. D. Pritika, A. O. Kot, N. A. Vlasenko, T. V. Cher-nyshova and others. At the same time, the definition ofofthe concepts "resolution" and "settlement" of the civil dispute, the issue of judicial pre-trial / extrajudicial resolution and settlement of civil disputes remain out of the note.
According to Article 1 of the Civil Procedure Code ofUkraine, the task of civil justice is fair, impartial and timely consideration and resolution of civil cases. In this regard, the purpose is precisely the protection of the violated, non-recognition, disputed rights, freedoms or interests of individuals, the rights and interests of legal entities and the interests of the state [1].
Therefore, the consideration and resolution of civil cases is the task of civil justice. At the same time, taking into account that such consideration and resolution of the case is carried out in order to protect the violated, non-recognition, disputed rights, freedoms, interests, we conclude that this category of legal cases contains a dispute about the right.
Every person has the right to protect his or her civil rights in case of violation, non-recognition or controversy. That is, the result of protection should be a minimum of restoration, recognition of civil law by other, in particular, the contracting party of our subject requirements.
At the same time, due to the contractual evolution of legal relations, should not exclude also a partial restoration or recognition of only a certain amount of rights that satisfies both parties and is a certain compromise between them. Therefore, in the event that the parties are prepared to compromise on their own claims to each other, consideration should be given to the possibility of settling this dispute.
In the wording of the Law No. 1401-VIII dated 02.06.2016 [2], the delegation of functions of courts, and also the appropriation of these functions by other bodies or officials is not allowed. At the same time, part 3 of the new wording ofArticle 124 of the Constitution of Ukraine does not limit the legislator to establish by law obligatory pre-trial procedure for
resolution a dispute. The said norm of the Constitution of Ukraine provided the opportunity to transfer a significant number of civil disputes to the area of pre-trial or extrajudicial settlement, and also brought the matter out of the jurisdiction of the Constitutional Court of Ukraine ofJuly 9, 2002 (Case N1-2 / 2002 N15-rp / 2002) [3].
The resolution of a dispute involves a complicated, multi-stage procedure aimed at eliminating the source of conflict between the parties, full or partial satisfaction of the rights and interests of contracting party in a situation where the parties not only do not contribute to one another in the successful resolution of the subject matter of the dispute, but rather make the most of efforts to delay the conflict or resolve it is solely in its own interests. In addition, the resolution of the dispute by the court, in particular, provides for a mechanism for the enforcement of a court decision in cases of refusal to voluntarily execute it.
In turn, the settlement of a dispute involves active actions of the parties aimed at reaching agreements on disputed issues, while such reconciliation should be voluntary. Settlement of dispute is a kind of compromise reached by the parties in order to prevent greater losses (emotional, material, human, time, etc.) as a result of delaying the conflict. It also provides for its accelerated voluntary execution (in this case, we obviously do not take into account the apparent reconciliation in order to delay the time, abuse of the law, etc.). Ignoring the consequences of unresolved conflicts leads to the fact that the parties deal not only with the dispute between themselves but also with the consequences of not settling it, which can be much more unprofitable than the dispute itself.
Therefore, the settlement of a dispute between the parties is possible either through direct negotiations between the parties, or through negotiations with the participation of a third party (person), a legally uninteresting participant, namely the mediator.
At the same time, it should be noted that mediation (lat. mediation-intervention) in private law is un-
derstood as a process of settling disputes in which the parties, through one or more mediators, negotiate disputes in order to reach an agreement [4].
Depending on the resolution or settlement of the dispute, we observe the most common in the classification theory, namely, jurisdictional and non-jurisdictional forms of protection. The exercise of powers to resolution, settlement a dispute by the authorized state agency belongs to a jurisdictional form. In turn, all other forms are considered non-jurisdictional. Therefore, in cases of resolution or settlement dispute between the parties but with the participation of a judge, it should be attributed to jurisdictional forms. Self-defense, including, today, mediation should be considered a non-jurisdiction-al form of settlement of a dispute.
It should also be emphasized that in cases of impossibility of volu ntary settlement of a dispute, its solution involves the possibility of a voluntary decision by a third party, in particular a court, which will be used to terminate the dispute and in most cases will satisfy only one of the parties.
In the light of the foregoing, if we are talking about resolving a dispute, it should be understood that the powers of the parties to such a relationship are limited in particular to the subject of the dispute, evidence gathered and investigated in support of their claims or objections, the dispute resolution process involves discretion and compe-
tition, as well as the right to compulsory execution of the decision provided the refusal to perform voluntary.
In turn, the settlement of a dispute is, first of all, a voluntary orientation of the parties to the dispute to resolve all contradictions with the least losses for each party. In this regard, the parties will try to make certain compromises even at the expense of issues that are not directly related to the subject matter of the dispute. If you speak, for example, the conclusion of a settlement agreement in court, it should be noted that, in contrast to the previous version of the Civil Procedure Code of Ukraine, the new wording of Article 207 of the Civil Procedure Code of Ukraine provides for the right of the parties to reach an agreement beyond the bounds of the subject matter of the dispute. In cases of failure to reach an agreement, the parties address to the state authorities upon its decision.
Consequently, the settlement of a dispute is a certain stage in its solution, while such a stage can become the only one for the parties.
Taking into account the above, it should be concluded that the concept of "resolution of civil dispute" and "settlement of civil dispute" are not identical concepts. At the same time, these concepts are compatible, where the notion of "settlement of civil dispute" is subordinated to the concept of "resolution of civil disputes".
References:
1.
2.
Civil Procedure Code of Ukraine [Electronic resource] // The official web portal of the Verkhovna Rada of Ukraine - Access to the resource: URL: http://zakon0.rada.gov.ua/laws/show/1618-15. Constitution ofUkraine [Electronic resource] / / The officialweb portalofthe Verkhovna Rada ofUkraine-Ac-cess to the resource: URL: http://zakon0.rada.gov.ua/laws/show/254%D0%BA/96%D0%B2%D1%80/ paran4761#n4761
3. Judgement Constitutional Court ofUkraine ofJuly 9,- 2002. (Case N1-2 / 2002 N15-rp / 2002) [Electronic resource] // The official web portal of the Verkhovna Rada of Ukraine - Access to the resource: URL: http://zakon2.rada.gov.ua/laws/show/v015p710-02.
Recommendation Rec - 2002. 10 of the Committee of Ministers of the Council of Europe to Member States on mediation in civil matters [Electronic resource] - Access to the resource: URL: http://www. scourt.gov.ua/clients/vsu/vsu.nsf/6b6c1e2e6ad3e2fcc2257
4.
