106 of the Constitution, however, even in this provision of the Basic Law, the President is not endowed with such functions.

The results of the candidate’s testing should be determined by answering 5-6 questions indicated in the tickets. It may also make sense to invite the chairman or a representative of the court to which the candidate intends to work to such meetings of the judges‘ qualification commission.

The HCJ, like the relevant profile committee of the Verkhovna Rada of Ukraine, should not attest a candidate, forcing him to retake the exam to the same extent as it does now, and thus level the activities of judges‘ qualification commissions. Their functions are, as provided by the laws of January 15, 1998 No. 22/98-РВ „On the High Council of Justice“ and of March 18, 2004 No. 1625-VІІ „On the procedure for election to and dismissal of a professional The Verkhovna Rada of Ukraine ”, namely in the organization of inspections of complaints, if any, the correctness and completeness of the materials for the appointment, election of a judge to office, as well as in the preparation of the relevant submission. Of course, they should also conduct a conversation with the candidates to verify the correctness of the decisions made by previous instances and to determine the candidate’s suitability for the position of a judge.

The deadline for submission of materials for the appointment of judges for the first time in the Secretariat of the President of Ukraine should be legally fixed.

Experts have different views on when a candidate for a judge should undergo professional training and in which institution.

We believe that only after a citizen is appointed by the President of Ukraine to the position of a judge, his training should be conducted for at least six months at the Academy of Judges of Ukraine or its branches or the National Law Academy. J. Mudry or Odessa National University. І.І. Mechnikov. Only after this and the obligatory taking of the oath before the President of Ukraine can he start performing the duties of a judge.

The issue of appointing judges to administrative positions remains no less relevant than the appointment of a judge to a position for the first time or indefinitely. The mechanism for appointing judges to such positions is enshrined in the Law „On the Judiciary of Ukraine“, in particular Part 5 of Art. 20. Pursuant to this provision of the Law, the chairman of the court, the deputy chairman of the court are appointed for a term of five years from among judges and dismissed by the President of Ukraine on the proposal of the Chairman of the Supreme Court of Ukraine. on the basis of the recommendation of the Council of Judges of Ukraine (for specialized courts – recommendations of the relevant council of judges).

Thus, the Law „On the Judiciary of Ukraine“ stipulates that the subject of appointment of judges to administrative positions is the President of Ukraine. However, the analysis of the current legislation and the practice of appointing judges to administrative positions raises the question of whether such a procedure is justified and whether the said Law in this part meets the requirements of the Constitution.

The powers of the chairmen of courts of all levels and their deputies, in addition to performing the duties of a judge, include the implementation of organizational management of the court, including its staff. The law prohibits these individuals from interfering in the proceedings of any case and influencing the outcome of the proceedings. Thus, in fact, the administrative functions of the chairman of the court or his deputy are not of national importance and relate exclusively to the internal activities of the court and the activities of judicial self-government bodies.

In view of this, it is necessary to discuss and resolve the issue of appointing judges to administrative positions by the judiciary by analogy with the appointment to administrative positions in the executive and legislative branches.

Statistics also support this. In particular, in 2003 out of 158 candidates for administrative positions the President of Ukraine appointed only 40, in 2004 out of 296 people – 222, at the end of the year after repeated appeals of the Supreme Court of Ukraine to expedite consideration of relevant materials … And 60 candidates for the post of judge were never appointed.

The norms of the Law „On the Judiciary of Ukraine“ on this issue and the norms of the Constitution do not agree.

Yes, in Art. 128 of the Constitution stipulates that the President of Ukraine shall make only the first appointment to the position of a professional judge for a term of five years. Any information that he should appoint judges to administrative positions in chap. VIII Constitution of „Justice“ does not exist at all. As you know, the powers of the President of Ukraine are defined in Art. 106 of the Constitution, however, even in this provision of the Basic Law, the President is not endowed with such functions.

Thus, all the above facts indicate that the current procedure for appointing judges to administrative positions should be changed to a new one, which would meet both the modern requirements of the judiciary in the state and the role of the court in the administration of justice. This issue should be resolved by appointing judges to administrative positions in all courts of general jurisdiction for a term of five years and dismissal from these positions by the Plenum of the Supreme Court of Ukraine on the proposal of the Chairman of the Supreme Court of Ukraine agreed with the Council of Judges of Ukraine. This practice was in the 90s of the last century and proved to be extremely positive and effective.

24.09.2010

Functional and organizational principles of economic procedural law

All aspects of the organization and activities of the court are governed by law. But among them it is necessary to distinguish those that determine the most common and important aspects of them, which acquire, by virtue of this importance, the principles of justice

The principles define the basic principles, rights aimed at ensuring the procedural activities of the court, the basics of the organization of justice, as well as the legal status of participants in the trial. With the development of the state and law, the principles develop taking into account the political, social, economic interests of citizens, legal entities and society.

Given the above, the principles of commercial litigation are defined as the basic rules of the commercial court, the basic basis by which the economic process is built and the relations arising in the field of justice. Principles operate within a single coherent, interdependent and interdependent system, so a violation of any one principle entails a violation of others.

The content of these principles is expressed and enshrined in the Law of Ukraine „On the Judiciary of Ukraine“ and the Commercial Procedural Code of Ukraine. Each of these principles finds its consolidation and expression, as a rule, not in one, but in several legal norms and most often in procedural, which characterize the content of this principle. The performance of the tasks of commercial litigation depends on the correct application of the rules of substantive and procedural law by the commercial court.

The legal literature expresses different views on the concept, quantity, classification, name and content of the principles of economic process as the main provisions that together characterize the most essential features of the process, as well as the content and purpose of its main institutions.

The principles of commercial procedural law are the basic ideas, ideas about the court and justice, which are enshrined in procedural law and determine the nature of commercial procedural law and the procedure for its application.

The principles are manifested and implemented in all activities of commercial courts, at all stages of the economic process. They regulate the most important aspects of law enforcement activities of commercial courts. The correct idea of ​​the essence and content of each principle, as well as their entire system as a whole helps to understand the essence and meaning of many rules of the economic process and, accordingly, their reasonable application in practice.

The principles of justice, although interconnected, are divided into two subsystems: functional (judicial) and organizational (judicial).

The following principles are functional:

The principle of legality is a constitutional principle, as Part 2 of Article 19 of the Constitution of Ukraine states that public authorities are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.

The principle of legality as the main principle of justice is also established by paragraph 1 part 3 of Article 129 of the Constitution of Ukraine. Legality in the judiciary has its own specific features, due to the tasks and means of justice. The task is to guarantee the independence of judges and courts (Article 126 of the Constitution of Ukraine, Articles 14, 15 of the Law of Ukraine „On the Judiciary of Ukraine“, Article 11 of the Law of Ukraine „On the Status of Judges „) and their submission only to the law. outside influence on judges.

The peculiarities of the principle of legality in commercial litigation are reduced primarily to the obligation to consider all disputes, strictly adhering to economic procedural norms, to resolve commercial disputes in strict accordance with the law. The Commercial Court has the right to invalidate in whole or in part the contract that is contrary to law.

An important guarantee of ensuring this principle is that the decisions, rulings, rulings of the commercial court can be reviewed on appeal and cassation at the request of the party, at the request of the prosecutor, as provided by the Code of Civil Procedure of Ukraine … The Supreme Commercial Court of Ukraine provides guidance in order to ensure uniform dispute resolution and strict compliance with the law.

Procedural equality of all participants in the trial. This principle is enshrined in paragraph 1, part 3 of Article 129 of the Constitution of Ukraine, Article 7 of the Law of Ukraine „On the Judiciary of Ukraine“ Article 4-2 of the Code of Civil Procedure of Ukraine, which states that justice in commercial courts is administered on the basis of equality of all participants. before the law and the court. The law establishes equal opportunities for the parties and guarantees them the right to protect descriptive narrative essay topics their interests.

The court in resolving commercial disputes applies the rules of substantive law to all participants to the same extent, the legal status of participants in economic proceedings is determined only by procedural provisions.

The principle of equality of participants is an important means of protecting their rights and legitimate interests, which eliminates any pressure from one party to another, infringement of anyone’s procedural rights.