Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.41 N° 77
Abril
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2023
Recibido el 25/12/22 Aceptado el 25/03/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 41, Nº 77 (2023), 335-351
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Court-initiated call for evidence in the
Ukrainian economic process
DOI: https://doi.org/10.46398/cuestpol.4177.23
Artem Selivon *
Nataliia Nykytchenko **
Oleksiy Oderii ***
Olena Korotun ****
Serhii Podkopaev *****
Abstract
The purpose of the article was to study the actual problems of
obtaining evidence on the initiative of the court in the economic
process and, at the same time, to substantiate the proposals for
reforming the economic procedural legislation of Ukraine. In
the research process were used methods of general and special,
namely: historical, comparative legal, synergistic, structural
systemic, analysis and synthesis, logical and generalization
method. It has been shown that evidence is an important part of the judicial
process. It is emphasized that the role of the court in ensuring a prompt and
thorough consideration of the case cannot be passive. It is concluded that
the court, while maintaining objectivity and impartiality, must assist the
participants in the trial in exercising their rights, prevent any kind of abuse
and take measures to full its judicial duties, as a condition of possibility for
the maintenance of the rule of law.
Keywords: evidentiary initiative; evidentiary claim; economic court;
economic process; economic procedural law.
* Judge of the Commercial Court of Kyiv, postgraduate student of the Department of economic law
and process, University of State Fiscal Service of Ukraine, Irpin, Ukraine. ORCID ID: https://orcid.
org/0000-0002-9196-0714
** Doctor in Law, Associate Professor, University of the State Fiscal Service of Ukraine, Irpin, Ukraine,
ORCID ID: https://orcid.org/0000-0001-9545-1434
*** Doctor in Law, Professor, Professor of the Department of Criminal Law Subjects and Forensic
examinations, Faculty № 1 of the Donetsk Law Institute of Ministry of Internal Aairs of Ukraine,
Kryvyi Rih, Ukraine. ORCID ID: https://orcid.org/0000-0002-6999-4387
**** PhD., in Law, Associate Professor, Northern Commercial Court of Appeal, Kyiv, Ukraine. ORCID ID:
https://orcid.org/0000-0003-2328-6913
***** Doctor in Law, Associate Professor, senior research fellow of the Department for Studying Problems
of Criminal Procedure and Judicial Proceedings of Academician Stashis Scientic Research Institute
for the Study of Crime Problems of the National Academy of Law Sciences of Ukraine, Kyiv, Ukraine.
ORCID ID: https://orcid.org/0000-0002-5281-3981
336
Artem Selivon, Nataliia Nykytchenko, Oleksiy Oderii, Olena Korotun y Serhii Podkopaev
Court-initiated call for evidence in the Ukrainian economic process
Reclamo de pruebas por iniciativa del tribunal en el
proceso económico de Ucrania
Resumen
El propósito del artículo fue estudiar los problemas reales de obtención
de pruebas por iniciativa del tribunal en el proceso económico y, al mismo
tiempo, fundamentar las propuestas para reformar la legislación procesal
económica de Ucrania. En el proceso de investigación se utilizaron
métodos de generales y especiales, a saber: histórico, comparativo jurídico,
sinérgico, sistémico estructural, de análisis y síntesis, lógico y método de
generalización. Se ha demostrado que la evidencia es una parte importante
del proceso judicial. Se enfatiza que el papel de la corte para garantizar una
consideración rápida y completa del caso no puede ser pasivo. Se concluye
que el tribunal, manteniendo la objetividad e imparcialidad, debe asistir
a los participantes en el juicio en el ejercicio de sus derechos, prevenir
cualquier tipo de abuso y tomar medidas para cumplir con sus deberes
judiciales, como condición de posibilidad para el mantenimiento del Estado
de Derecho
Palabras clave: iniciativa de prueba; reclamo prueba; tribunal
económico; proceso económico; legislación procesal
económica.
Introduction
Judicial reforms have been recently carried out in many countries of
the world. The reasons for reforming procedural legislation are both
internal and external (international) factors. The processes of revising
and updating national procedural legislations of various countries are
conditioned by the need to bring them in line with modern global practices
of regulating economic, political and other relations. The tendency that is
also characteristic to Ukraine has been indicated.
The modernization of the procedural legislation of most European
countries is aimed at ensuring the right to a fair trial and eective protection
of violated rights and legitimate interests of business entities. “The burden
of injustice falls too heavily on vulnerable groups, facing the threat of loss
of jobs, livelihoods, housing, health and life, the hardest struggle to realize
their rights and access to justice” (Teremetskyi et. al., 2021: 3). At the
same time, improving access to justice occurs by reducing court expenses,
simplifying the rules of court proceedings, etc.
The redistribution of the responsibilities of the parties and the court in
Ukraine has reected a new balance of adversarial and dispositive judicial
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CUESTIONES POLÍTICAS
Vol. 41 Nº 77 (2023): 335-351
principles. The court remains to have authorities to control over the
organization of the case, namely: choosing the procedure for considering
the case, establishing real deadlines for the execution of procedural actions,
etc.
It is well-known that the largest number of comments from scholars and
practitioners during the discussion of the draft of the current version of
the Commercial Procedural Code of Ukraine (hereinafter referred to as the
Commercial Code of Ukraine) were made on the norms regarding the use of
means of proving and obtaining evidence, the role of the court in obtaining
and verifying case evidence, etc.
Therefore, this article is focused on determining the role of the
commercial court through the prism of authorities to demand evidence
within the commercial proceedings and to ensure eective protection
of the rights and legitimate interests of the participants in commercial
legal relations. It is important because the provisions of the Commercial
Procedural Code should reect both private and public legal principles
of judicial proceedings aimed at ensuring a balance of private and public
interests in the commercial proceedings.
1. Literature review
The issue of determining the role of the court in the process of proving
was the subject matter of scientic works by scholars from Ukraine and other
countries. However, few scholars considered the expediency of granting the
court the authorities to request evidence on its own initiative. This conrms
the relevance of studying the role of the court within the procedure of
demanding evidence in the commercial proceedings of Ukraine.
We note such scientic works that became the basis for this study. First
of all, it refers to G.C. Lilly’s work called Introduction to the Law of Evidence,
which provides basic ideas about evidentiary law in the Anglo-American
legal system (1996). The work called A Digest of the Law of Evidence by J.F.
Stephen is also important. It has a great inuence on the development and
formation of modern evidentiary law in the USA (2015).
The rules of allocating authorities on proving are studied in O. Baulin’s
dissertation research “Burden of proving in civil cases” (2005). Teremetskyi
and Petrovskyi (2021) revealed the legal nature of the concepts “special
knowledge” and “special knowledge” is disclosed, dened approaches
for determining the legal status of persons with special knowledge are
indicated, identied regulatory and procedural obstacles and prerequisites
for the participation of a specialist in a certain branch of knowledge as a
subject of proof in the civil process are revealed.
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Artem Selivon, Nataliia Nykytchenko, Oleksiy Oderii, Olena Korotun y Serhii Podkopaev
Court-initiated call for evidence in the Ukrainian economic process
Babenko (2007) in the dissertation research titled “Evidence in the
commercial proceedings” studies the concept and legal status of the subjects
of evidence in the commercial proceedings, namely by analyzing the legal
status and rights of the court.
Biletskaya (2013), researching evidence in the commercial proceedings
of Ukraine draws attention to the fact that the doctrine on evidence and
proving in modern conditions has reached such a level of development
that it is allocated to a separate sub-branch “Evidence Law”, and proving is
precisely the activity of the court and other participants in the proceedings.
Kalamaiko (2019), Melekh (2016), Izarova et al. (2018) focused their
research on the institution of evidence and proving in foreign countries by
paying attention to the role of the court in the proceedings.
Luspenik (2019), Selivon (2021), Demydova and Vasylchenko (2016),
Ryzhenko and Rybas (2016), Dzhepa (2017) emphasize the need to leave
the court’s right to demand evidence while studying the role of the court in
the process of proving.
2. Methodology of the study
The research is based on a complex of general scientic and special
methods of scientic cognition. The following methods have been used:
historical, comparative and legal, synergistic, systemic and structural,
analysis and synthesis, logical and generalization methods. Thus, the
historical method assisted to determine the stages of the development
of the commercial procedural legislation in regard to the court’s right to
demand evidence on its own initiative. The comparative and legal method
was used in researching the legal experience of other countries.
The synergistic method was used to combine the results of scientic
research on the role of the court in the process of proving. The systemic and
structural method made it possible to study the institution of the demand
for evidence as a component of evidentiary law.
The methods of analysis and synthesis were used to analyze the essence
of legal norms regulating the demand for evidence at the initiative of the
court in Ukraine. The logical method and the method of generalization
were used to analyze the data, the legislation of Ukraine and to form own
conclusions.
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3. Results and Discussion
3.1. Role of the court within judicial proving
An important prerequisite for making a fair and impartial court decision
is to establish the factual circumstances of the case – a certain range of facts,
which are the legal consequences according to the law. They are established
with the help of proving, that is, a special procedural activity carried out by
the participants of the case and the court.
The problem of proving occupies one of the central places in the science
of commercial procedural law. Prominent scholars who are experts in the
procedural issues have been involved in its solution for many centuries. The
relevance of this problem is determined by the fact that any commercial
case cannot be solved without proving.
The following key issues are important for court evidence:
1) who precisely carries out the activity on establishing legal facts, that
is, how the burden of proving is distributed and between whom;
2) who should make eorts to establish the circumstances of the case
and to which extent;
3) what is the court’s participating extent in proving;
4) what should happen in case of passivity of proceedings participants
and in case of insucient evidence.
Demydova and Vasylchenko (2016) dene the ultimate goal of the
judiciary as achieving true information about circumstances to be proven
and making a reasoned and fair decision on their basis. Thus, the quality of
the court decision depends on the completeness and objectivity of studying
the evidence.
The importance of proving in a case is emphasized by lawyers of the
DLA Paper company in their research Dispute Resolution in the Middle
East (2022). It is important to understand the rules related to evidence.
Eective evidence management will help to win cases, and poor evidence
management will help to lose it.
Evidence Law in the Anglo-American judicial system is allocated into
a separate institution, which is interdisciplinary for all types of court
proceedings – civil, criminal, arbitration. The rules of evidence dictate how
and when facts can be proved or disproved in court. Evidence Law is the
end product of century-long eort to make the judicial proceedings as fair,
accurate and nal as possible (Sklansky and Roth, 2020).
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Artem Selivon, Nataliia Nykytchenko, Oleksiy Oderii, Olena Korotun y Serhii Podkopaev
Court-initiated call for evidence in the Ukrainian economic process
Evidence Law is a part of procedural law, which in certain cases decides:
1) which facts can and cannot be proven in a specic case; 2) what evidence
must be provided regarding the fact that can be proven; 3) whom should
present the evidence and what is the way of presenting the evidence
(Stephen et al., 2015).
The court decision must be based on the rule of law principles, be legal
and justied. It is possible only in case of examining all the evidence in
the case and establishing all the factual circumstances that are important
for the correct solution of the case. But a party to the case does not always
have the opportunity to independently provide necessary evidence due
to circumstances beyond his / her control, therefore the institution of
demanding evidence as a component of proving within commercial
proceedings acquires special importance (Selivon and Nykytchenko, 2021).
The persons participating in the court proceedings present facts and
arguments justifying their legal position in the case. On the basis of the
evidence examined in the court, those persons make a conclusion about
the stability of their legal position and continue to participate in the case
or withdraw the claim, sign an agreement of lawsuit, plead no defence, etc.
The court analyzes the given facts and arguments of the parties with the
help of procedural rules of evidence. As a result of case’s consideration, the
court makes a decision.
Therefore, during the proving process the persons participating in the
case justify the circumstances of the subject of proving and its elements
with the help of evidence. It leads to the emergence of new knowledge
that is important for detecting the case. Every person participating in the
process of proving within commercial proceedings fullls the procedural
duties assigned by law.
Almost all entities of economic and procedural legal relations are subjects
of proving. The duties of the court do not include proving, but its task in
considering and resolving the case is to ensure that all norms of evidence and
proving are correctly applied. The court examines the evidence, evaluates
it, makes a conclusion in the case, essentially participates in proving.
It is the parties in the case who are obliged to prove the circumstances of
the case. Persons participating in the case perform this duty independently
or through their representatives. And in cases established by the procedural
law the help of the court is resorted in the form of a request to demand the
necessary evidence (Lang, 2018).
Baulin (2005) notes that it is important who carries out the activity of
establishing legal facts within court proving, unlike scientic and everyday
knowledge, that is, how the burden of proving is distributed and between
whom. The importance of the allocation of burdens of proving can be
increased due to the strengthening of the role of the adversarial proceedings.
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Previously the court had to be active in any case, could dominate and
had the duty to fully and comprehensively consider the case. Modern
commercial procedural legislation condently departs from the assignment
of investigative duties to the court, giving the main role in the proving
process to the persons participating in the case.
Traditionally, two types of judicial proceedings are distinguished –
investigative (inquisitorial, searching) and adversarial. The indicated types
of proceedings primarily dier in the position of the court and the parties in
the proceedings. The parties (not the court) in adversarial proceedings have
the initiative during the preparation, hearing and review of the case. But
none of the existing proceedings can be called adversarial or investigative
in its pure form.
The burden of providing evidence and proving in adversarial proceedings
rests with the parties to the dispute. It is on the contrary in the investigative
proceedings, the court is responsible for collecting evidence.
There are two main concepts regarding the subjects of court proving
in the scientic literature. Proponents of the rst one believes that court
proving is a way of learning the actual circumstances of the case. They
understand court proving as the activity of proceedings subjects to establish
the objective truth with the help of procedural means and methods specied
by law, the presence or absence of facts necessary for dispute resolution
between the parties (Treushnikov, 2004; Biletskaya, 2013; Vasylchenko,
2017; Selivon, 2021).
Proponents of the second approach understand proving as the activity,
whose purpose is to convince the court of the truth of the facts under
consideration (Osokyna, 2013; Melekh, 2016). Thus, they mean only the
procedural activity of the parties, which consists of presenting evidence,
refuting the evidence of the other party, ling motions, participating in the
examination of evidence.
We believe that such a position is controversial, because some evidence
cannot be obtained by the plainti without the help of the court. Therefore,
both the active position of proceedings participants and the commercial
court is important during proving.
The court is not always recognized as the subject of proving in procedural
science. We talk about the scholars’ position, who understand the court
proving as the need to convince the opposite party and the court of their
rightness. And since the court does not convince anyone according to
such an approach, it is excluded from the subjects of evidentiary activity
(Martysiuk, 2001; Butyrskyi, 2019).
Osokyna (2013) distinguishes between court proving and nding of
fact and conclusion of law and notes that nding always precedes proving.
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Artem Selivon, Nataliia Nykytchenko, Oleksiy Oderii, Olena Korotun y Serhii Podkopaev
Court-initiated call for evidence in the Ukrainian economic process
The subjects of proving, in her opinion, are persons participating in the
case, their representatives, the prosecutor, state authorities and local self-
government agencies.
She considers proving as the activity of those subjects related to the
court’s conviction of the existence or absence of certain facts. Until the
court goes to the deliberation room, it is only the subject of nding. The
court becomes the subject of proving as a logical mental activity only in the
deliberation room after starting to draw up the nal procedural document.
Babenko (2007) notes that the commercial court as a justice agency
occupies a powerful position. Therefore, it has the right to demand, oer,
oblige the participants of commercial proceedings to provide evidence
necessary for the correct resolution of the dispute, that is, it exercises
coercion.
Biletskaya (2013) states that proving is the activity of the court and other
participants of proceedings, whose purpose is to establish and fully clarify
all the valid circumstances of the case, which are specied (individualized)
depending on the subject matter of the dispute, the parties, as well as those
legal relations that take place between the parties in a particular case.
Kalamaiko (2019) refers to the experience of foreign countries and
noties that the activity of the court in the procedural science and
legislation in some countries is considered in terms of the so-called “case
management”, whose one of the elements is the court’s authorities within
evidentiary activities. The court in Great Britain, who always was an
example of classic adversarial model, plays a passive role; the court has
certain manifestations of “mandatory activity” such as sending the parties a
form with the allocation questionnaire.
The judge in German civil proceedings must administer the proceedings
and focus on the decisive issues. Courts also have the right to make requests
(for example, regarding an expert’s opinion), as well as to study evidence in
the case by conducting a video conference.
Therefore, the specics of implementing the adversarial principle
depend on one or another procedural system. For example, a judge in the
system of continental law is responsible for collecting evidence, forming a
legal position in a case.
A trial in the continental legal system usually consists of a series of short
court hearings to collect evidence, which must be presented during the court
hearing as the nal stage of the analysis and decision-making. In contrast, a
trial in common law countries typically has a preliminary or pre-trial stage,
where the evidence in the case is sequentially presented (Komarov, 2011).
We note that the role of the presiding judge is important in the Anglo-
American legal system, where the burden of proving is responsibility of the
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parties according to the adversarial principle. Court lawyers have broad
discretion to conduct their cases in their own way, but there are signicant
limitations imposed by the trial judge. Evidence Law gives the trial judge
both great power and broad authorities (Sklansky and Roth, 2020).
A. Shtafan (2015) claims that the court: a) does not take a passive position,
allowing itself to be convinced of the existence of certain circumstances; b)
is not only an observer over the compliance with the legal norms by the
participants; c) facilitates to the collection of evidence in the case, forms
the limits of proving, and sometimes the burden of proving. Therefore,
the indicated activity belongs to proving. Thus, the court is a full-edged
subject of proving, acting in the interests of justice.
Treushnikov (2004) emphasizes that the implementation of the idea
of passive behaviour of the court in the process of proving can lead to
diculties in the practice of consideration and resolution of specic cases.
Court proving according to the scholar is a logical and practical activity not
only of the persons participating in the case, but also of the court.
The commercial court takes part in establishing the factual circumstances
of the case and has the opportunity to directly inuence the activities of the
persons participating in the case. That is, the commercial court gets to know
the circumstances and evidence at all stages of the case by participating in
the formation of the subject matter of proving in the case, in the research
and evaluation of the evidence in the case, and in exceptional cases – in the
collection of evidence in the case.
3.2. Changes in the court’s role in reforming commercial
procedural legislation
The current duty of the Ukrainian court to collect evidence on its
own initiative to objectively clarify all circumstances of the case within
commercial proceedongs has been replaced by the function of the court
to assist the persons participating in the case in obtaining the evidence
necessary to resolve the case on its merits.
Butyrskyi (2019), analyzing the current edition of Part 5 of the Art. 13 of
the Civil Procedural Code of Ukraine, concludes that the role of the court
has signicantly changed after the adoption of new procedural codes. Thus,
the court maintaining objectivity and impartiality:
1. manages the course of judicial proceedings;
2. facilitates to the settlement of the dispute by reaching an agreement
by the parties;
3. explains, if necessary, to the participants in the court proceedings
their procedural rights and obligations, the consequences of taking
or not taking procedural actions;
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Artem Selivon, Nataliia Nykytchenko, Oleksiy Oderii, Olena Korotun y Serhii Podkopaev
Court-initiated call for evidence in the Ukrainian economic process
4. assists the participants of court proceedings in exercising their
rights provided by the Commercial Procedural Code of Ukraine;
5. prevents the abuse of their rights by the participants of court
proceedings and takes measures to ensure that they full their
obligations.
Such a procedural position of the court signicantly distinguishes it from
the one it held under the previous edition of the Commercial Procedural
Code of Ukraine. Previously, the commercial court had to create the
necessary conditions for the parties and other persons involved in the case
to establish the factual circumstances of the case and the correct application
of legislation. The commercial court made its decisions based on the results
of the evaluation of the evidence submitted by the parties, other participants
in the proceedings and which were requested by the court.
The adversarial principle between the parties and their freedom in
providing the court with their evidence and in proving their persuasiveness
is enshrined in the Art. 129 of the Constitution of Ukraine. The Article 13
of the Commercial Procedural Code of Ukraine species the content of
this principle within commercial proceedings. Korotenko (2006) denes
the adversarial principle as the competition of parties in a case, when the
actions of one person participating in the case eectively limit the ability
of others to inuence the outcome of the court proceedings individually,
if there is active role of the court, which is empowered to administer and
manage the proceedings.
The adversarial model of civil proceedings is the construction of the
procedure of considering and resolving cases, when legally interested
persons carry out proving activities in support of their claims or objections
at their own discretion with qualied legal assistance. Preparation of
the case for consideration is the responsibility of the parties and their
representatives, which involves questioning witnesses, applying to expert
institutions, etc. The court carries out procedural control while maintaining
impartiality.
The principle of adversariality of the parties implies a high level of legal
culture, legal awareness and conscientiousness of the participants of court
proceedings. Each party must prove the circumstances it refers to as the
basis of its claims or objections (the Art. 74 of the Commercial Procedural
Code of Ukraine).
Part 4 of the Art. 74 of the Commercial Procedural Code of Ukraine
prohibits the court from collecting evidence related to the subject matter
of the dispute on its own initiative, except for the demand of evidence
by the court in case if it has doubts about the good faith of exercising
the procedural rights by the participants of the case or the fullment of
obligations regarding evidence.
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According to E. Martysiuk (2001), the guarantees for implementing
the adversarial principle are: 1) the refusal of commercial courts to initiate
the collection of evidence; 2) establishing the absolute truth; 3) increasing
the degree of responsibility of persons participating in the case, under the
threat of a decision unfavourable to them; 4) increasing the general legal
awareness for the subjects of legal relations, which corresponds to the
tasks of commercial justice system. Such scholar’s position is controversial,
because the main feature of the adversarial system is that the judge is not
obliged to establish the truth in the case.
The court was considered as an active participant in commercial
proceedings by collecting evidence in the case on its own initiative before
the adversarial principle was established in the procedural legislation of
Ukraine. However, there are situations in practice, when the adversarial
principle of the parties cannot be followed and the court must have
authorities to take active actions. This may be caused by the low level of
training of the participants of the court hearing, the tactics chosen by the
party in the case, etc.
Vedeneev (2001) singles out two groups of judicial powers, if we consider
the powers of the court in proving from the point of view of their impact on
the activities of the plainti and the defendant in proving:
1) the court takes part in establishing the factual circumstances of
the case and has the opportunity to directly inuence on the willful
activity of persons participating in the case on proving. For example,
in the form of determining the subject matter of proving in the case or
while checking the relativity, admissibility, reliability and suciency
of the evidence provided in the case;
2) the current procedural codes also enshrine the powers of the
court, whose implementation creates the necessary conditions
(preconditions) for persons participating in the case to carry out
evidentiary activities in a specic case in accordance with procedural
principles.
The mentioned groups of court powers are called in the literature as
“administrative powers” and “organizational powers”.
The organizational powers of the commercial court enshrined in
the current commercial procedural legislation do not directly aect the
volitional activity of persons participating in the case on proving, but
only create the necessary conditions (preconditions) for a more complete
realization of their procedural rights in the case. On this basis one can
conclude that the organizational powers of the court are consistent with
the adversarial principle and contribute to its implementation within
commercial litigation.
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Court-initiated call for evidence in the Ukrainian economic process
The court’s demand for evidence belongs to administrative powers, and
this procedure must be strictly regulated in the procedural norms in order
to develop and strengthen adversarial system in commercial proceedings,
to increase the authority of the court and impossibility to make adversarial
system to be a ction.
Melekh (2016), having studied the institution of evidence and proving
in foreign countries, concluded that the court in the procedural legislation
of a number of foreign countries has powers on proving in the case, which
at rst glance do not belong to the judicial model built on the adversarial
principle.
At the same time, the scholar points out the impracticality of copying
the powers of the court on proving in the case based on the legislation of
foreign countries. According to her opinion, the active use of such powers
by the court in Ukrainian legislation can lead to an inuence on the
parties’ procedural activity on proving, by imposing them own vision and
understanding of the essence of a specic commercial dispute.
There is still no unied approach to the issue of judicial control over the
process in the European Union. The main tendencies in civil proceedings
reforms among the EU member states are to ensure the eectiveness of the
process by providing judges with an appropriate level of judicial control.
At the same time, there is still insucient public trust in judges and the
judicial system in general in post-socialist countries (Izarova et al., 2018).
Provisions of the Art. 81 of the Civil Procedural Code reect the private
law principles of adversarial civil proceedings, according to which the
burden of proving rests entirely on the parties (Luspenik, 2019). Therefore,
the stated duty on proving is characterized by the specicity and arises
when a person exercises his / her right to judicial protection. At the same
time, a person has the right to independently choose the range of evidence
that he / she refers to and submits to the court, based on the procedural
interest and position in the case.
However, this right of the parties has its limits. For example, the parties
must not abuse their procedural rights (we mean the use of procedural rights
in the eld of proving contrary to their purpose, unscrupulous practice that
violates the interests of other persons, etc.).
The current edition of the Art. 74 of the Commercial Procedural Code
of Ukraine is criticized by scholars and practitioners in view of the fact
that it deprives the court of the right to demand independently insucient
evidence submitted by the parties.
One should agree with Vatamaniuk (2011), who notes that the legislator
signicantly inuenced the comprehensiveness and fairness of the
court proceedings by determining in the new edition of the Commercial
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Procedural Code of Ukraine that the burden of proving rests exclusively on
the parties, and the commercial court on its own initiative is deprived of the
right to demand evidence from enterprises and organizations regardless of
their participation in the case, if submitted evidence is insucient.
Hence, considering the case on its merits and understanding that the
rights of one party have been violated by the illegal actions of the other
party, the court has currently no opportunity to establish the truth and
justice in the resolution of this dispute in case, in particular, of improper
legal support of the interests of the party by its representatives, but as
an observer must analyze the evidence presented and resolve the dispute
purely on its basis.
Demydova and Vasylchenko (2016) note that the right to demand
additional evidence is not a manifestation of judicial interest in the outcome
of the dispute, but an additional mean of ensuring the completeness of
evidence examination and establishing the valid relations of the parties.
The court making a procedural decision to demand this or that evidence
cannot be aware in advance about the results of such a procedural action. At
the same time, dubious circumstances should in no case serve as the basis
for making a decision. The adversarial system of the parties in its absolute
meaning is an ideal that should be strived for, but should not be formalized
too much.
Ryzhenko and Rybas (2016) suggest to supplement the Commercial
Procedural Code of Ukraine with a norm on the court’s right to demand
evidence on its own initiative in cases dened by law.
According to Yu. Dzhepa (2017), limiting the powers of the court to
collect evidence is a tendency that can lead to the fact that the court will be a
“hostage” of the parties and other participants in commercial proceedings,
especially in cases between related business entities, which due to the
relevant norm of procedural law, will be able to tamper the court, which
undermines its authority and mitigates the function of an independent
arbitrator.
Vasylchenko (2017) considers it positive, scientically based and
practically justied the establishment in Part 4 of the Art. 74 of the
Commercial Procedural Code of Ukraine an exception to the general rule
regarding the court’s right to independently demand evidence, when it
has doubts about the conscientious exercise of the procedural rights by
the participants of the case or the fullment of their obligations regarding
evidence.
Such a court right is undoubtedly necessary to ensure eective
protection of violated, unrecognized or appealed rights and legitimate
interests of individuals and legal entities or the state. However, the judges
in the relevant rulings on the demand for evidence on the basis of Part 4 of
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Court-initiated call for evidence in the Ukrainian economic process
the Art. 74 of the Commercial Procedural Code of Ukraine do not always
indicate the reasons for such a demand.
The court in accordance with Part 4 of the Art. 74 of the Commercial
Procedural Code of Ukraine has the right to collect evidence in case if it
has doubts about the conscientious exercise by the participants of the case
of their procedural rights or the fulllment of their obligations regarding
evidence. For example, in case if the court comes to the conclusion that the
claim is of articial nature, and the commercial litigation, contrary to the
principle of good faith in exercising procedural rights, is not used for its
intended purpose, it has the right to demand all the necessary evidence, in
its opinion.
Provisions of the Art. 74 of the Commercial Procedural Code of
Ukraine reect the public and legal principles of commercial litigation
and are aimed at ensuring the good faith of the procedural behavior of the
participants in the case in terms of the adversarial model of the judiciary,
based on the principle of proportionality, which is designed to ensure the
balance of private and public interests during the administration of justice
in commercial cases.
In addition to the mentioned Part 4 of the Art. 74 of the Civil Procedural
Code of Ukraine, one can nd their other cases when the court can collect
evidence on its own initiative (Part 7 of the Art. 82, Part 6 of the Art. 91, Part
5 of the Art. 96, the Art. 99 of the Civil Procedural Code of Ukraine, etc.).
Luspenik (2019) notes that the provisions on the possibility of collecting
evidence by the court on its own initiative should be justied not only
through the prism of competitiveness, but also taking into account the
principle of proportionality in terms of the tasks and purpose of the judicial
proceedings.
Conclusion
Having analyzed the current legislation and caselaw, we should point
out the need to improve certain provisions of evidentiary law and the theory
of evidence. We believe that the role of the court in ensuring a quick and
comprehensive consideration of the case cannot be passive. First of all, it
is related to ensuring the balance of private and public interests during the
administration of justice within commercial disputes.
Therefore, the establishment of an exception to the general rule
regarding the court’s right to independently demand evidence, when it
has doubts about the conscientious exercising the procedural rights by the
participants of the case or fullling their duties, is precisely the tool that
will ensure the conscientious procedural behavior of the participants of the
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case, as well as to prevent abuse by the parties of their procedural rights or
manipulation of the court, aimed at undermining its authority and leveling
the function of an independent arbitrator.
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