Selivon A. Demand for evidence in commercial proceedings

The dissertation is devoted to the study of the legal regulation of the discovery of evidence in commercial proceedings, as well as the development of recommendations for improving the relevant legislative provisions and practice of their application. In Chapter 1 "Theoretical and Legal Foundations of Discovery of Evidence in Commercial Proceedings", which is devoted to the study of the theoretical and legal foundations of discovery of evidence as a component of proof in commercial proceedings, the author examines the concept of discovery of evidence, the place of the institution of discovery of evidence in the system of law, the purpose and principles of discovery of evidence, and analyses the history of development of legal support for discovery of evidence. The author finds out that in different periods of development of economic proceedings in modern Ukraine, there have been transitions from the adversarial model to the investigative model and vice versa, which accordingly caused changes in the roles of the parties to the proceedings and the court in the process of proving a case and determined the presence or absence of the court's right to request evidence on its own initiative or at the request of the parties. Based on the study, the author gives the author's own definition of discovery of evidence in economic proceedings. The discovery of evidence in economic proceedings is the actions of persons involved in a case and the court which are aimed at obtaining evidence and recording it to form the evidence base necessary for resolving an economic case. This will improve the quality of legal regulation and ensure uniform and unambiguous application of the relevant legal provisions. In Section 2 "The Mechanism for Recovering Evidence in Commercial Proceedings", the author examines the peculiarities of the legal mechanism for recovering evidence, the legal grounds for recovering evidence and legal relations related to the recovery of evidence in commercial proceedings. The author has developed his own definition of the concept of "mechanism of discovery of evidence", which is understood as a system of legal means organised in a certain sequence and aimed at obtaining evidence at the request of the parties or at the initiative of the court and recording it to form the evidence base necessary for resolving an economic case on the basis of the principles of economic procedure. The author proves that the subjects of legal relations for the discovery of evidence in commercial proceedings are the court and other parties to the case. The role of the court in ensuring a prompt and comprehensive consideration of a case should be active, but at the same time respectful of the equal rights of the parties. The court has the right to initiate the discovery of evidence on its own initiative, but the range of such situations should be clearly defined in the commercial procedure legislation. Section 3, "Procedural Peculiarities of Discovery of Evidence in Commercial Proceedings", analyses discovery of evidence in foreign countries and in international commercial arbitration, measures of procedural coercion for violation of the procedure for discovery of evidence, and problems of discovery of evidence in commercial proceedings and ways to solve them. A study of foreign experience shows that the principles of adversarial and dispositive nature underlying commercial proceedings do not prevent the court from taking an active part in the evidentiary process, including by requesting the necessary evidence or satisfying the parties' requests for evidence. The court's power to order evidence does not replace but rather complements, the procedural activities of the persons involved in the case. If procedural mechanisms are developed to ensure the consistent implementation of the adversarial principle, even a partial strengthening of the role of the court in commercial proceedings does not lead to a violation of this fundamental principle in commercial proceedings. Based on the analysis, the author prepared a comparative table of discovery of evidence as a means of securing evidence (the Articles 110-112 of the Commercial Procedure Code of Ukraine) and discovery of evidence as a separate procedural action (the Articles 81, 811 of the Commercial Procedure Code of Ukraine), where the main distinguishing feature that allows distinguishing between these legal mechanisms is the grounds for their application. Discovery as a means of securing evidence is applied when there is an assumption that the means of proof may be lost or that the collection or submission of relevant evidence will become impossible or difficult in the future, while discovery as a separate procedural action is applied when it is impossible to obtain evidence on its own.