Теорія і практика правознавства (Jun 2017)
The constitutional bases of jurisdiction of civil courts
Abstract
The article is devoted to the essence and content of the constitutional bases of jurisdiction of the civil courts. With the Law of Ukraine «On the Amendments to the Constitution of Ukraine (on the part of Justice)» the amendments to the Article 124 of the Constitution of Ukraine as for the determination of judicial jurisdiction are being introduced. Regarding the circumstances above in the scientific article the questions of the constitutional principles of civil courts jurisdiction are studied considering the legislator’s modern view on the sphere of jurisdiction as the sphere of judicial organs activity which consider and resolve civil disputes. At the theoretical level the similar but not equal concepts of ‘jurisdiction’ and ‘competence’ are studied. Understanding the content of the mentioned categories can also have practical value as the Chapter 2 of the CPC of Ukraine defines the content of civil jurisdiction through the view of the courts’ competence as for the resolution of civil cases (Art. 15 of the CPC of Ukraine). Some attention in the work is paid to the correlation of civil jurisdiction with the determination of a fair trial according to the Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In addition to the foregoing the subject of the study in the present scientific article is the definition of the legal dispute content with which the Constitution of Ukraine in the new edition binds with the necessity to establish the competence of the courts as for the possibility to resolve a case. However, the abovementioned constitutional provision in the new version provides for the possibility of consideration by courts other cases, the content of which, based on the analysis of these regulatory requirements, do not necessarily contain controversial features. This current version of the constitutional provision necessitates new thinking about the content and significance of judicial jurisdiction despite of the presence of relatively numerous dissertations on these issues which were performed, considering the content of art. 124 of the Constitution of Ukraine before the amendments to the mentioned provision by the Law of Ukraine «On Amendments to the Constitution of Ukraine (on justice)» on June 2, 2016 were introduced. Considering the above in the work the conclusion is made that jurisdiction should be understood as the subjective characteristics of the judicial or jurisdictional organ which has the authority to resolve legal matters. Based on this the civil court jurisdiction is characterized as subjective competence of courts to consider and resolve civil cases as determined by the civil procedural law. Taking into account the European Court of Human Rights practice the author singles out the most characteristic features of a ‘dispute’ based on the content of the Art. 6 of the European Convention on Human Rights and Fundamental Freedoms. It is noted that a dispute must relate to «civil rights and obligations»; the courts can decide a dispute only if there is the latter; a dispute may relate not only to the existence of a right but also to its scope or the manner in which it should be used. The definition on the theoretical level of the content of civil courts jurisdiction is linked by the author with the legal opinion of the Constitutional Court of Ukraine, which positively approved the distribution of the courts jurisdiction on all legal relations arising in the state. In this regard, the position, according to which the civil courts jurisdiction can only be spread to the cases of civilistic character, with the signs of a dispute on the civil right can hardly be considered as fair. Following this, it is concluded that consideration of the categories of civil cases, the content of which is not of a disputed nature should be referred to civil courts jurisdiction contents and civil justice as a whole. Such position is proved by the constitutional provision and the Art. 15, part 2 of the CPC of Ukraine which allow to refer to the courts competence the possibility to resolve other types of cases determined by the procedural law.
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