Право і безпека (Jun 2022)
Instrumental aspects of proportionality in civil proceedings
Abstract
The purpose of the work is to define the role of proportionality as a tool for overcoming legal uncertainty in the application by courts of the principles and norms of law in modern civil proceedings. It was supported the statement that within the limits of modern legal understanding, different from the objective or subjective determination of legal phenomena, which were traditionally characteristic of the national legal doctrine, the understanding of principles is not limited to the properties of technical means for constructing norms or means of overcoming gaps in legal regulation. The principles of law determine the purpose, possibility, regime and limits of law enforcement. Based on intersubjective legal understanding, an instrumental approach has been applied to the analysis of principles in law, their role and significance for the implementation of civil justice, primarily for those legal situations in which the procedure for carrying out proceedings is determined discretionarily. The position regarding the separation of written and unwritten, as well as structural and ideological principles has been supported. It has been concluded that the hierarchy of values in society determines the hierarchy and content of principles in law, namely: basic (fundamental, primary) principles of law and legal (general, inter-branch, branch) principles. The impracticality of assessing the effectiveness of civil proceedings only through the implementation of the protective function (due to effectiveness) has been emphasized and it has been suggested to pay attention to such a category as the balance of interests implemented in civil proceedings. It has been concluded that fair is justice, which guarantees a balanced, necessity-based limitation of opportunities in the realization of procedural and legal interests, in the exercise of rights, as well as compliance with the procedure established by law, which is a reflection of public interests in legal security. It has been emphasized that proportionality is an instrumental principle that allows to ensure legal discourse, which is a means of achieving a balanced legal and social result, which is connected with ensuring the rule of law during the exercise of power. The decisive factor in the application of proportionality is the reflection by the subject of law enforcement of his/her understanding of the law, as well as his/her own good faith. The application of proportionality in the version of the test, in which the procedure for solving the case (committing a procedural action) is based on a factual (pragmatic) approach in combination with a procedural institutional approach, allows the application of relatively defined legal norms, in relation to which the rules of deontic logic do not apply.
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