SUMMARY

Rabotynska V.O. Principle of publicity of the civil process. – Qualification Research Paper. Manuscript copyright.

Thesis for a Candidate Degree in Law, specialty 12.00.03 «Civil Law and Civil Procedure; family law; international private law».

The theoretical and practical research of the principle of transparency in the civil proceeding was conduct in dissertation. Analysis of historical and legal materials showed that the consideration of civil cases in Ukrainian territories was public. However, in the early years of Ukrainian statehood there were cases of closed court proceedings, which was associated with the activity of church courts in the times of Kievan Rus. The audience in the courtroom fulfilled, not only with the role of public control over judicial activity, which we are today familiar with, but often assumed the duties of a judge, advised judges on the actions and content of local law (especially customs), and also acted as witnesses, who remembered the content of the court decision and procedural actions during the civil case review, etc.

The publicity of the civil proceeding derives from the broader concept of public law, which can be understand in three ways: institutional, functional and economic. As jurisdictional activity is the main activity of the courts, where the functions of the courts are implementing, the publicity of the civil proceeding is associated with the publicity of the judiciary in the functional sense. At the same time, the publicity of the judiciary is an element of publicity of public authorities that has not only a legal, but also a political burden. In the latter case, it may be determined as a synonym for a term transparency.

The essence of the publicity of civil proceeding reveals the features that are inherent in it. The paper compares and reveals content of the publicity of civil proceeding features, such as: the openness of the civil proceeding; obtaining information by the participants and the public in a civil case for the purpose of its further use; use of procedural legal and material means of information dissemination; the official nature of the dissemination of information from civil case; immediacy of obtaining the information from a civil case by participants (other than parties and third parties, applicants and interested persons who can act through a representative) and the public.

In order to identify specific features of the publicity of the civil proceeding, a study of classify this legal phenomenon was conducted. The main attention in the work pays to the division of publicity of the civil proceeding by the circle of persons that are perceiving information from a civil case, for publicity in a broad and narrow sense. The paper argues that publicity in the narrow sense extends not only to participants in the civil process, but also to judges who hold a judicial mandate or provide evidence. Publicity in the broad sense traditionally understood as the direct perception of information from a civil case by the public. Given the rules for considering civil cases by courts of different instances and the existing limitation of publicity in higher instances, publicity of the civil proceeding is highlighted to the publicity in the court of the first, appellate and cassation instance. In the way of perceiving information on civil cases, there are publicity of the civil proceeding, where information perceived with a personal presence in the courtroom, and the publicity of the civil process, where information perceived without a personal presence in the courtroom.

The publicity of the civil proceeding revealed through its legal nature: the functional principle of the civil process. It is proved that meaning of the principle of publicity of civil proceeding consists of four parts: a) the civil case is open to civil process participants, which must be informed about the civil case so far as it’s necessary for exercise their procedural rights and obligations (publicity of civil proceeding in the narrow sense); b) the consideration of a civil case is open to the public, which must have free access to the place where civil case is hearing or to perform a separate procedural step to ensure that they exercise their rights to receive information about a civil case (publicity of civil proceeding in a broad sense); C) in cases clearly stipulated by the law, the norms of law may restrict the information for the participants in civil cases, if this is necessary for the protection of the rights and interests of participants in civil proceedings, or this follows from the procedural form of the commission of separate procedural actions or the procedure for consideration of certain categories of civil cases (limiting the publicity of the civil proceeding in the narrow sense); D) in cases clearly stipulated by the law, the norms of law may restrict public information about civil cases and the results of their consideration to protect private or public interests (limiting the publicity of civil proceeding in a broad sense).

In order to implement the provisions of the principle of publicity of the civil proceeding in practical activity of the court, civil process participants and the public should understand and improve the mechanism of implementation of the principle of publicity of the civil proceeding. This mechanism is a complex phenomenon that has an internal structure.

The article analyzes the peculiarity of the manifestation of the principle of transparency in a broad sense, that is, with respect to the public. It specified that the public is an uncertain circle of people who have the right to receive information about civil case, where these rights have long been an international standard of modern justice. The subjective rights of the public to receive information on the case must enable it directly, in the unchanged form, take into account information from the court proceedings and participants in the civil process. If the public perceives information indirectly, in creative work (for example, as an article in a newspaper), this will not be covered by the content of the principle of publicity of the civil proceeding.

In the article thesis that the principle of publicity of the civil proceeding extends not only to the public but also to the participants of the civil process supports. Moreover, not only those who involved in the case (legally interested participants in the civil process) taken into account, but also other participants of the process (those who are not legally interested in the process).

Among the disadvantages of the principle of publicity of the civil proceeding for persons involved in the case, there are situations of not providing such entities, with even elementary information about the time and place of their consideration.

The specificity of the principle of publicity to other participants in the civil process is that, unlike the public and those whom involved in the case, said entities do not have a general legal status, the element of which would be their right to receive all information from a civil case. Such entities, as a rule, are given these information to perform their procedural and / or labor duties, and therefore they do not have access to all information from the case. By its nature, information relations within the civil affairs for other participants in the civil process are relative.

The author does not support the attempt of some scholars to consider restrictions on the implementation of the principle of publicity of the civil proceeding as a separate principle of the civil process - the principle of confidentiality. Similar views contradict the nature of the principles that must be general, and not exclusive.

The restrictions of the publicity of the civil proceeding in the broad sense that is to the public of two types: legal and natural, are analyzing. The first is due to the provisions of the law, and the second - due to technical or natural reasons. It was conclude that the removal of natural (technical) restrictions of the principle of publicity should be a priority task during the judicial reform, while legal restrictions of the principle of publicity of the civil proceeding are not associated as violation of this principle.

Closed court hearings and non-publication of court decisions are a manifestation of limitation of the principle of publicity to the public. Two forms of a closed court session analyzed: ordinary and combined. In the usual form of a closed court session, the public completely removes the courtroom from the preparatory part of the court session until it completes by the declaration of judgment.

All restrictions of the principle of publicity of civil proceedings for persons involved in the case divided into two types: restrictions on direct perception of the information and restrictions on indirect perception of information in civil cases. The first type is most widespread in practice, because it relates to the non-challenge of the persons involved in the case to the courtroom or the expulsion from it. The second type relates to procedural fictions and presumptions during the call of the certain persons in the case, and during the loss of civil case materials.

Generally, other participants in the civil process cannot be restricted in the implementation of the principle of publicity of the civil proceeding; otherwise, they will not be able effectively perform their functions in the case. However, there is one exception from this rule for a legal aid person.

Key words: civil process, principle of publicity, classification of publicity, mechanism of publicity implementation, limitation of publicity.