Civil procedure

Civil procedure. In Kyivan Rus’ the rules of judicial procedure were included in the material law. The process had, by that time, achieved a public character; the trial was open and oral. As a rule, court action was initiated by the injured party, but sometimes it was effected on the basis of mutual agreement of both parties. The decision was rendered on the evidence presented at the trial.

In the Lithuanian-Ruthenian state court procedure became increasingly public. It aimed at ‘establishing justice.’ The trial, during which evidence was evaluated, was open, but the verdict was reached at a closed session of the court. An appeal was admissible to a higher court.

In the Hetman state, under Russian influence, the procedure became more formal, mainly because the judicial and administrative functions were united in the hands of the Cossack starshyna. The Zaporozhian Sich, however, retained a procedure that was more liberal and democratic, less formalistic, and more public; often the Cossacks themselves participated in the execution of sentences.

On the Ukrainian territory that came under the domination of the Russian Empire, the traditions of the civil procedure according to the Lithuanian Statute were soon replaced by strict Russian laws. The new Code of Civil Procedure of 1864 was based on French models and included the ‘dispositive power’ of the plaintiff to file or withdraw a suit and an open trial and free evaluation of evidence. Procedural (formal) law was separated from material law.

Austrian laws were introduced after Austria annexed the Western Ukrainian provinces in 1772. Court procedure developed under the influence of West European ideas, as expressed in the Code of 1895. It was based on the principles of an open and oral trial and the ‘dispositive power’ of the plaintiff and provided for three court instances with the right of appeal to the court of a higher instance and revision by the supreme court.

During the period of the Ukrainian struggle for independence (1917–20) the procedural rules of former occupying countries—Russia and Austria—continued in force, with necessary amendments. In Western Ukraine, again under Polish domination (1919–39), the rules of civil procedure of Russia and Austria remained in force until 1930, when a new code, based on modern European principles, was enacted.

In the Ukrainian Soviet Socialist Republic the laws of the Russian Soviet Federated Socialist Republic were imposed as models, beginning with the Russian Decree on Courts of 24 November 1917, which declared void former tsarist laws. Accordingly, the decree of the People's Secretariat of 17 January 1918 on ‘people’s courts ’ and the decree of the Council of People's Commissars of the Ukrainian SSR of 14 February 1919 on ‘People’s courts and revolutionary tribunals’ laid the foundation for the new court procedures. They were followed by the civil procedure codes of 1924 and 1929 (see Civil Procedure Code of the Ukrainian SSR). A new code was enacted by the Supreme Soviet of the Ukrainian SSR on 18 July 1963, in compliance with the Principles of Civil Procedure of the USSR and the Constituent Republics that had been approved by the Supreme Soviet of the USSR in 1961.

This code regulated court procedure in cases arising from civil, family, labor, or collective-farm relations. It contained such items as general provisions, parties to the litigation, procedure in the court of the first instance, procedure in the courts of appeal, execution of court decisions, and international procedural questions. The code provided that the people’s court had general, initial jurisdiction but allowed higher courts to take over the proceedings in every case. It also stressed the public interest in civil cases, assuming that a violation of private rights also violated state interest. Therefore, although the plaintiff had the ‘dispositive power’ to file a court suit or to withdraw it at will, the public prosecutor, acting for the state, had the power, if he/she felt that the interest of the state warranted it, to submit a civil case between private parties to the court, to enter as a third party into a civil suit at any stage, and even to ‘protest’ a technically final judgment. The court also had the right to adjudicate the claims of the parties independently. The decision of the court could be protested or appealed. A higher court, by an action called ‘cassation,’ could annul, reverse, or modify the decision of a lower court. (See also Court system.)

Yurii Starosolsky

[This article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]

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