Lubiana K.A. Participation of a lawyer in simplified civil proceedings in
Ukraine. – On the rights of the manuscript.
The dissertation for the scientific degree of the doctor of philosophy on a
specialty 081 “Law”.– Taras Shevchenko National University of Kyiv of the Ministry of Education and Science of Ukraine. – Kyiv, 2021.
The dissertation research is devoted to the analysis of the lawyer ‘s participation in the simplified civil proceedings of Ukraine. The ontological basis of the lawyer’s participation in the simplified civil proceedings of Ukraine is analyzed. The elements of the strategy and tactics of the lawyer’s activity in the simplified claim proceedings are classified. A description of the methodology of the lawyer during the simplified litigation of civil proceedings in Ukraine.
It is substantiated that a lawyer in the simplified civil proceedings of Ukraine is a natural person with exclusive powers to exercise judicial representation in the simplified civil proceedings of Ukraine due to its status as a person who conducts independent professional activities for protection, representation and other legal assistance. principles of confidentiality, dominance of clients’ interests, inadmissibility of conflict of interests, competence and good faith in the performance of their duties to the client.
It is noted that the strategy of the lawyer in simplified litigation involves determining the intended purpose, which takes into account the expected outcome of the client, as well as planning the most effective ways and methods to be used by the lawyer in implementing the strategy. In turn, the tactic is to anticipate the predicted actions taken by the lawyer at each stage of the simplified litigation, aimed at implementing the planned strategy. Our study showed that the strategy and tactics of the lawyer in the simplified litigation in general is characterized by its own specifics, due primarily to the peculiarities of civil procedural law. The simplified form significantly restricts the lawyer in choosing the methods he can use, but even in this case his possibilities are still quite wide both in the choice of methods mediated by the court decision and methods due to the specifics of advocacy.
The peculiarities of the lawyer’s activity before filing a lawsuit in the order of simplified claim proceedings are singled out. The content of the lawyer’s activity at the stage of opening a simplified claim procedure in a civil case is detailed. The specifics of the lawyer’s activity at the stage of court proceedings in the order of simplified claim proceedings are determined. The list of features of activity of the lawyer during appellate and cassation appeal of the decisions accepted following results of consideration of case by way of the simplified claim procedure is formulated and the value of each of them is characterized.
It is argued that in the process of investigating the activities of a lawyer before the stage of filing a lawsuit in summary proceedings and within the provision of legal assistance in drafting procedural documents at this stage, we found that the lawyer’s actions at this stage are key to further proceedings. by way of simplified civil proceedings. First, at this stage, the lawyer decides whether the case can be considered in a simplified claim procedure and whether it is in the interests of the principal to consider the case without notifying the parties on the available materials in the case. Second, the lawyer collects the evidence necessary to file a lawsuit in summary proceedings, as well as prepares the necessary procedural documents. As a result, the effective work of a lawyer at this stage is crucial for establishing the circumstances justifying the claims and other circumstances relevant to the resolution of the case in a simplified civil proceedings, as well as for fair, impartial and timely consideration and resolution of civil court cases in order to effectively protect violated, unrecognized or disputed rights, freedoms or interests of the person.
It is emphasized that among the complications that make it impossible to initiate simplified civil proceedings, the following should be highlighted: first, the proceedings cannot be opened as simplified civil proceedings if the case is not one that can be considered in the procedure for simplified civil proceedings; secondly, the court may refuse to consider the case under the rules of simplified civil proceedings if, after the court accepts the plaintiff’s application to increase the amount of claims or change the subject of the claim, the case cannot be considered under the rules of simplified proceedings; thirdly, the petition for consideration of the case under the rules of simplified civil proceedings may be challenged by the defendant. We would like to draw your attention to the fact that in all cases the refusal of the court to consider the case in the order of simplified claim proceedings does not exclude the possibility of its consideration in the order of general claim proceedings. Consequently, the lawyer has an alternative option to protect the violated, unrecognized or disputed rights, freedoms or interests of the person he represents.
It is proved that the complications that arise at the stage of opening a simplified claim in a civil case are circumstances that affect the normal course of court proceedings, complicating its consideration in a simplified claim procedure in a civil case, making it impossible to consider a simplified claim. civil proceedings, or making it impossible to consider it at all.
Complications at the stage of opening simplified litigation in a civil case, which may make it impossible to consider it in the simplified litigation procedure in civil proceedings, in our opinion, can be classified into general and special. Complications typical of general civil proceedings are common. There are special complications that make it impossible to consider the case in a simplified civil proceedings.
It is summarized that the negative aspect is that the lawyer’s activity at the stage of court proceedings in the simplified civil proceedings is much more limited in the protection of the rights of the person whose interests he represents – simplified civil proceedings are characterized by fewer stages, and the lawyer it cannot take advantage of many opportunities (in particular, to conduct an examination). On the other hand, in our opinion, the positive aspect is that the lawyer’s activity at the stage of court proceedings in the simplified civil proceedings is simpler – in fact, the lawyer is only required to provide oral explanations (all other lawyer’s activities are carried out at other stages simplified civil proceedings).
The peculiarities of the lawyer’s participation in the consideration of insignificant cases of simplified civil proceedings are named and the essence of each of them is determined. The specifics of the lawyer’s participation in the consideration of cases arising from labor relations and the granting by the court of permission for temporary departure of the child outside Ukraine are outlined.
Summing up the study of the lawyer’s participation in the consideration of cases arising from employment and the court’s permission for temporary departure of the child outside Ukraine, we conclude that his role in such cases is primarily in the preparation of claims. These cases, in contrast to minor disputes, are mostly considered in the general order provided for all cases considered in simplified civil proceedings. Therefore, the lawyer’s primary task is to find evidence and prepare procedural documents on the basis of which the court will make a decision in the interests of the party he represents.
The essence of cases on granting permission by a court for temporary departure of a child outside Ukraine is that the court must establish an unfounded and unfounded refusal of one of the parents to grant permission for temporary departure of a child abroad, or vice versa confirms the validity of such refusal. The court must give permission to the other parent to take the child out of Ukraine if the child is leaving for the purpose of rehabilitation and treatment of the child, his meeting with relatives, cultural and educational upbringing (for example, education or learning foreign languages), development, training to independent living, ie primarily to act in the interests of the child, not one of his parents. On the other hand, for the consideration of such cases, the current civil procedural legislation provides for a special procedure for their consideration, ie the procedure for consideration of cases in simplified civil proceedings, which is generally duly regulated.
Key words: lawyer, simplified claim proceedings, participation of a lawyer in the process, civil proceedings, civil proceedings, advocacy.