法官参与纠纷解决:这一程序是否有效?

Roksolana Khanyk-Pospolitak, Roman Nuryshchenko
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引用次数: 0

摘要

本文通过分析一审法院除刑事诉讼外的所有类型诉讼中的立法和司法实践,研究了由法官参与的争端解决制度的有效性。值得注意的是,自2017年以来,除刑事诉讼外,乌克兰的诉讼法以及此后的司法实践中都出现了一个由法官参与解决争端的全新程序机构。将其纳入乌克兰程序法是为了解除司法制度。然而,要查明该机构是否履行了指定的意图,还需要对司法实践进行分析。因此,对司法实践进行了分析,包括该机构在民事、行政和商业诉讼中存在的所有年份,以确定其在实践中应用的频率和成功率。这表明,由法官参与行政诉讼的争端解决几乎不适用。此外,根据对上一时期100起案件的分析,在某些类别的案件中,法官参与的争端解决更为常见。最终得出的结论是,今天,由法官参与的争端解决机构尚未得到广泛使用,其效力仍然微不足道。因此,法官参与的纠纷解决制度需要进行重大改革——包括法官强制执行调解,特定类别案件的具体解决方式,以及在程序法典中插入相应条款,并向群众普及。
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Settlement of Disputes with the Participation of a Judge: Is This Procedure Effective?
The article studies the effectiveness of the institution of dispute resolution with the participation of a judge through the analysis of legislation and judicial practice in all types of proceedings in the courts of first instance, except criminal. It is noted that since 2017, a completely new procedural institute for the settlement of disputes with the participation of a judge has appeared in procedural codes of Ukraine, except criminal, and in judicial practice thereafter. Its introduction into Ukrainian procedural law was with the intention to relieve the judicial system. However, to find out whether this institute has fulfilled the assigned intention, the analysis of judicial practice is required. Accordingly, the analysis of judicial practice has been conducted, comprising all years of existence of this institution in civil, administrative, and commercial litigation in order to determine the frequency and success rates of its application in practice. This revealed that dispute settlement with the participation of a judge in administrative proceedings barely applies. In addition, based on the analysis of one hundred cases for the last period, there are certain categories of cases where dispute settlement with the participation of a judge was used more often. Eventually, it was concluded that today the institute of dispute settlement with the participation of a judge has not been widely used and its effectiveness remains insignificant. Therefore, the institution of dispute resolution with the participation of a judge requires a great reformation – consisting of enforcement of mediation execution by judges, specific ways of resolution of cases belonging to certain categories as well as insertion of corresponding provisions in procedural codes, and popularization to the masses.
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审稿时长
24 weeks
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