281 of the CPC, Articles 30-32 of the Law of Ukraine of June 16, 1992

281 of the CPC, Articles 30-32 of the Law of Ukraine of June 16, 1992

In our country, a monopoly flourishes in the most profitable industries (fuel sales – almost all gas stations belong to several companies; housing – multi-storey buildings, etc.), protectionist legislation continues to operate in a number of sectors of the economy, which provides budget funding (subsidies) for national producers. which distorts competition. In particular, the laws of Ukraine “On stimulation of production in Ukraine” (from 19.09.97), “On state support of the shipbuilding industry” (from 23.12. 97), “On measures for state support of the shipbuilding industry in Ukraine “(from 18.11.99),” On conducting an economic experiment at the enterprises of the mining complex “(from 14.07.99)” On recognizing the armored industry as one of the priorities in the industry and measures to provide it with state support “(from 11.01.2001),” On state support of the aircraft industry in Ukraine “(from 12.07.2001),” About actions under the Program “Ukrainian coal” (the resolution of the Cabinet of Ministers from 19.09.2001), “About stimulation of development of agriculture, economy for the period 2001-2004” (from 18.01.2001), etc. It provides for subsidization of the producer, which distorts the conditions of competition.

And this is exactly what is considered a significant offense under EU law. It is no coincidence that anti-dumping processes are being violated against our country, which are usually resolved not in favor of Ukraine. During the years of independence, a total of more than 80 anti-dumping cases and protective measures have been initiated against our state, most of which resulted in the imposition of sanctions against Ukrainian exports. The state suffers great losses from the losses of anti-dumping processes, the application of compensatory and other special measures. And most importantly – consumers, the population of Ukraine.

Our managers, brought up in the socialist tradition, still cannot understand the difference in state support for industries and enterprises, which is carried out in market economies and in our country.

Methodological support of the philosophy and theory of competition law should answer the question “how”: how to ensure compliance with competition law to these principles. We will try to answer these questions of the methodology of the theory of law in the following publications.

Used literature:

1. The Constitution of Ukraine. – K., 1996;

2. Savlytsky MI Methodology of competition law // Law. – 2003. – No. 17;

3. Yakushev SV Problems of development of competition law in Ukraine upon accession to the WTO. – K., 2004.

09/21/2010

Implementation of the functions of the prosecutor in the judicial process of civil cases

The prosecutor may intervene at any stage of the process if required by the protection of the constitutional rights of citizens, the interests of the state and society, and is obliged to take timely measures provided by law to eliminate violations of the law, no matter from whom they come.

The prosecutor has equal rights with other participants in the court session.

The scope and limits of the powers of the prosecutor who participates in the trial are determined by this Law and the procedural legislation of Ukraine.

Article 36. Support of public prosecution in court. The prosecutor participates in the trial of criminal cases depending on the nature and degree of public danger of the act. In support of the public prosecution, the prosecutor participates in the examination of evidence, submits to the court his views on the application of criminal law and the punishment of the defendant. Thus the prosecutor is guided by requirements of the law and an objective assessment of the proofs collected on case.

If during the consideration of the case the prosecutor comes to the conclusion that the data of the judicial investigation do not confirm the accusation of the defendant, he is obliged to drop the accusation.

According to item 2 of Art. 3 of the CPC, which reproduces the constitutional provision on the right to judicial protection, in cases provided by law, persons acting to protect the rights, freedoms and interests of another person or state or public interests may apply to the court. However, this paragraph of this article does not specify which persons may apply to the court to protect the rights, freedoms and interests of others. These persons are provided by Art. 45 CPC.

In paragraph 1 of Art. 45 of the CPC defines such a form of participation in civil proceedings of the Commissioner for Human Rights of the Verkhovna Rada of Ukraine, prosecutor (selected by the author – MR), public authorities, local governments, individuals and legal entities, as an appeal to the court with applications for protection of rights, freedoms and interests of others or state or public interests in cases established by law.

First of all, the right to initiate a civil case by these entities is limited, as the grounds for exercising these powers are provided by law (paragraph 2 of Article 3 and paragraph 1 of Article 45 of the CPC). In addition, this right of the mentioned subjects is aimed at exercising the right of other persons to judicial protection (paragraph 1 of Article 3 of the CPC). Thus, these subjects, in particular the prosecutor, may initiate a civil case in cases where the person in whose interests the case is initiated has the right to judicial protection, and he also followed the procedure for going to court (Articles 119-122 of the CPC). Otherwise, the judge is obliged to refuse to accept applications submitted by these entities.

It should be noted that by applying to the court with a statement on the protection of citizens’ rights and state interests, the prosecutor’s office implements the constitutional function of representing the interests of a citizen or the state in court. The prosecutor is a special subject of civil proceedings and his participation in civil proceedings is caused by the need to perform the function of representing the interests of a citizen or the state in cases provided by law (paragraph 2 of Article 121 of the Constitution of Ukraine , paragraph 2 of Article 45 of the CPC, paragraph 2 of Art. 5 of the Law of Ukraine of November 5, 1991 “On the Prosecutor’s Office”). That is, the function of representing interests in court is constitutional for the prosecutor’s office.

The concept of “legally protected interest” used, first of all, in Part 1 of Art. 4 of the current CPC and other laws of Ukraine in the logical and semantic connection with the concept of “law” should be understood as the desire to use specific tangible and / or intangible benefits, as due to the general content of objective and not directly mediated in subjective law simple legitimate permission, which is an independent subject of judicial protection and other legal remedies to meet individual and collective needs that do not contradict the Constitution and laws of Ukraine, public interests, justice, good, reasonableness and other common faith law principles (paragraph 1 of the decision Of the Constitutional Court of Ukraine of December 1, 2004 No. 18-rp / 2004) in the case on the constitutional petition of 50 people’s deputies of Ukraine on the official interpretation of part one of Article 4 of the Civil Procedure Code 123helpme.me of Ukraine [2].

The decision of the Constitutional Court of Ukraine of April 8, 1999 No. 3-rp / 99 on the constitutional petition of the Supreme Arbitration Court of Ukraine and the Prosecutor General’s Office of Ukraine on the official interpretation of Article 2 of the Arbitration Procedure Code of Ukraine (case on representation of state interests that the representation of the prosecutor’s office consists in the performance by prosecutors on behalf of the state of procedural and other actions aimed at protecting in court the interests of a citizen or the state in cases provided by law [ 3].

At the practical level, there are certain specific grounds for the prosecutor’s participation in civil proceedings: one’s own initiative and an indication of this in the law. First of all, the Constitution and the CPC give the prosecutor the right, at his discretion, to file a lawsuit to protect the interests of a citizen or the state. However, he can file such a claim only in cases established by both procedural and substantive (special) law. This indicates that this rule is blanket in nature. To do this, in each case, you should refer to the “open form” in the form of a specific regulation, which may contain these legal provisions.

For example, the Law of Ukraine “On Consumer Protection” gives the prosecutor the right to sue in the interests of the buyer. The Law of Ukraine “On Environmental Protection” gives the right to go to court with claims for damages caused as a result of violation of legislation on environmental protection and the termination of environmentally hazardous activities. The Law of Ukraine “On Combating Corruption” gives the prosecutor the right to apply to the court to recover damages caused by corrupt acts, etc. Legal grounds that ensure the direct participation of the prosecutor in a civil case, for example, may be: Articles 165, 240 of the Family Code of Ukraine, Art. 281 of the CPC, Articles 30-32 of the Law of Ukraine of June 16, 1992 “On Associations of Citizens”, etc.

Therefore, in each case of filing a lawsuit, filing an appeal or cassation appeal for revocation of a court decision or ruling, filing an application for review in connection with exceptional or newly discovered circumstances, the prosecutor must justify in his appeal, what is violation of citizens’ rights, interests of the state. In cases where there is no such justification, as well as when no reference is made to the relevant law, the court must refuse to accept the claim, application, complaint of the prosecutor.

It should be noted that the activities of the prosecutor in civil proceedings take place in specific procedural forms provided for in Part 3 of Art. 36-1 of the Law of Ukraine “On the Prosecutor’s Office”. Procedural forms of participation of the prosecutor in civil proceedings are the possibility enshrined in the procedural law of the influence of his activities on the development of civil proceedings – on the initiation of a civil case in court or entry into proceedings already initiated by other persons.

According to Part 5 of Art. 36-1 of the Law of Ukraine “On the Prosecutor’s Office”, the prosecutor independently determines the grounds for representation of interests in court and the forms of its implementation. This provision was confirmed by the above-mentioned decision of the Constitutional Court of Ukraine of April 8, 1999. However, due to the absence of this instruction directly in the procedural law, courts sometimes take the wrong position on this issue [5].