Gluschenko S. High specialized courts in the system of judicial power of Ukraine.

Українська версія

Thesis for the degree of Doctor of Science (DSc)

State registration number

0515U000885

Applicant for

Specialization

  • 12.00.10 - Судоустрій; прокуратура та адвокатура

30-10-2015

Specialized Academic Board

Д 64.086.03

Yaroslav Mudryi National law university

Essay

On the basis of analysis the thesis substantiates the concept of unity of court jurisdiction in the context of organization and activity of high specialized courts in the system of judicial power of Ukraine subject to transformation processes in the state and society, making arrangements for judicial reform. Theoretical basis for examination of the mentioned concept is the study of judicial law, development of the theory of legal process and the theory of unity of judicial process. This made it possible to advance arguments for the fact that court jurisdiction as a definition of a sphere of judicial activity has territorial, objective and functional components. Therefore, court jurisdiction systematically characterizes the structure of judicial authorities and is the basis for creation of relatively independent structures of specialized courts. Unity of court jurisdiction does not contradict with its division by criterion of jurisdiction of disputes, which enable to give arguments for existence of particular court jurisdiction as a systemic phenomenon under the single court jurisdiction (constitutional, civil, criminal, and administrative). As a rule, such differentiation is the reflection of industry influence or status of a judicial authority. Thus, in civil jurisdiction it is permitted to examine disputes arising from civil relations between legal entities. The objective criterion is not a priority in substantiation of economic jurisdiction and judicial authorities of civil jurisdiction must have a specialization for examination of all cases arising from private relations. The thesis systematically and entirely examines issue relating to legal status of high specialized courts as public authorities, establishment and development of legislation about high specialized courts, their tasks, functions and places in the judicial system, mechanism of realization of legal status of the mentioned courts - basic principles and functional sphere of activity, organizational and legal aspects of their functioning and securing equal application of legislation. It is reasonable that the limits of organizational and procedural influence of a high specialized court in the context of solution of mentioned issues are determined by a certain court jurisdiction. On the basis of comparative analysis basic factors for functioning of specialized (special) judicial authorities in countries with common legal system are non-common peculiarities of legal procedure, fixed judiciary traditions and security of high level of public confidence in judicature. Taking into account the specifics of state system of a particular country specialized functioning of such courts is different in terms of organization and procedural plan, functional effectiveness and level of formalization of the procedure. Implementation of specialization in judicial systems of countries of continental law is reflected in creation of specialized judicial structures (administrative justice) with organization of high judicial instances; in creation of particular court systems as a constituent of judicial system of the country; in functioning of network of specialized courts at the level of lower units of judicial system with their jurisdiction extending to the whole territory of the country or a part of the country; in existence of courts of military justice as specialized; in organization of judicial authorities of juvenile jurisdiction. It is argumented that in post-Soviet countries specialization of judicial systems is conducted through severance from a range of legal conflicts of public and economic nature (industrial criterion of specialization); functioning of military courts and juvenile courts is based on application of objective criterion. As to high judicial authorities, they act as courts of first instance, appeal courts, supervisory authorities; however, some of them are either a part of supreme courts or separate functions of high judicial instance are performed by supreme courts. On the basis of the concept of unity of court jurisdiction the thesis substantiates appropriate measures for reformation of the general courts system. Basic of which are defined formations of local and appellate judicial districts, creation of the High Civil Court of Ukraine and High Criminal Court of Ukraine along with the High Administrative Court of Ukraine with concurrent liquidation of economic court jurisdiction, enabling high special courts to exercise the right of independent submission of constitutional applications to the Constitutional Court of Ukraine according to the procedure prescribed by part 1, art. 150 of the Constitution of Ukraine and authorization of the Supreme Court of Ukraine along with the powers to revise decisions of cassation instances as to unequal application of rules of law, revisory powers to revise decisions of the mentioned courts due to absence of unequal application of legislation.

Files

Similar theses