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DOI: https://doi.org/10.34069/AI/2022.56.08.5
How to Cite:
Senyk, S., Churpita, H., Borovska, I., Kucher, T., & Petrovskyi, A. (2022). The problems of defining the legal nature of the court
judgement. Amazonia Investiga, 11(56), 48-55. https://doi.org/10.34069/AI/2022.56.08.5
The problems of defining the legal nature of the court judgement
Проблеми визначення правової природи судової ухвали
Received: September 13, 2022 Accepted: October 13, 2022
Written by:
Senyk Svitlana15
https://orcid.org/0000-0003-3492-5282
Churpita Hanna16
https://orcid.org/0000-0003-3915-347X
Borovska Iryna17
https://orcid.org/0000-0002-4961-9707
Kucher Tetiana18
https://orcid.org/0000-0002-0750-7782
Petrovskyi Andrii19
https://orcid.org/0000-0001-8607-282X
Abstract
Description: The purpose of the article is to
consider the procedural legislation on the
functioning of court decisions as one of the types
of court decisions. The subject of the study is
court rulings in the Civil Procedure of Ukraine.
The scientific study of judgments in civil
proceedings was conducted on the basis of the
complex use of general scientific and special
methods of scientific knowledge, namely:
dialectical, formal and dogmatic, system
analysis, system and structural, hermeneutic,
legal and comparative, legal and modeling,
method of theoretical generalization. Results of
the research. The formation and development of
the doctrine of court decisions is analyzed. The
notion of a court decision, a court decision is
defined, and also the provisions of normative
legal acts on this issue are considered. The
features inherent in a court decision and a court
decision in particular, as well as the rules for
issuing court decisions are considered. Practical
meaning. The clear system of requirements for a
court decision as a procedural document and law
enforcement act is established. Value /
originality. Emphasis is placed on the need for
15
PhD in Law, Associate Professor of Civil Law and Legal Proceedings Department Ivan Franko National University of Lviv,
Ukraine.
16
Doctor of Law, Professor, Professor of the Department of Civil Law Disciplines of the National Academy of Internal Affairs,
Ukraine.
17
PhD in Law, Associate Professor, Associate Professor of the Department of the Department Civil Law Disciplines of the National
Academy of Internal Affairs, Ukraine.
18
Doctor of Law, Associate Professor of the Department of Theoretical and Private Law Disciplines of the Private Institution of
Higher Education "Kyiv International University", Ukraine.
19
PhD in Law, Associate Professor, Associate Professor of the Department of Civil Law Disciplines of the National Academy of
Internal Affairs, Ukraine.
Senyk, S., Churpita, H., Borovska, I., Kucher, T., Petrovskyi, A. / Volume 11 - Issue 56: 48-55 / August, 2022
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further research to reveal the essence of the court
decision as one of the elements of the mechanism
for regulating legal relations.
Key words: civil proceedings, court decision,
judicial act, rule of law, judicial practice, legality,
establishment of circumstances.
Introduction
An individual, his (her) rights and liberties are
the pinnacle of all virtues in the legal sector.
Consequently, the State is responsible for
ensuring and approving them. Proper
implementation of the State’s obligations is due
to the effective operation of the entire law
enforcement system. Justice plays a special role
in ensuring the interests of the people.
The purpose of the court is to ensure the right to
due process, which is guaranteed by the Main
Law and the relevant legal instruments of
Ukraine (Law of Ukraine No. 1402-VIII, 2016).
The trial ends with a court decision, which has a
procedural form enshrined by law. The authority
of each legal decision affects the public
consciousness, implements an educational
function, and helps to solve the problem of legal
nihilism. Therefore, the court decision,
regulating certain legal relations between the
interested parties, is designed to guarantee the
defense of violated rights and freedoms,
safeguarded by the law.
In particular, by issuing a decision, the court
establishes liability for failure of the parties to the
proceedings to perform their duties, adjusts their
powers and obligations, ensures access to justice,
the rule of law, etc. Thus, a comprehensive
description of the legal nature of a judgment will
allow us to investigate certain features inherent
in it, given: the absence of the concept of "court
decision" in national legislation; different
approaches to the essence of legal relations that
arise at the stage of its execution; study of the
judgment in terms of its proper implementation;
legal consequences after its enforcement; the
need to improve the current civil procedural
legislation, etc.
On the grounds of the research conducted, the
Authors propose their own definition of
judgment, what will contribute to increasing its
theoretical and practical value as an element of
the mechanism of legal regulation of civil legal
relations.
Methodology
The scientific study of court decisions in civil
proceedings was conducted on the basis of the
complex use of general scientific and special
methods of scientific knowledge in their mutual
connection and complementation of each other.
The application of the dialectical method made it
possible to establish the relationship between the
form and content of the judgment, the
combination of the characteristics of its essence
and manifestation as a law enforcement act and a
procedural document.
The formal and dogmatic method was used in the
analysis of the rules of the current civil procedure
legislation of Ukraine and the practice of its
application.
System analysis method made it possible to
consider the place of a judgment as a separate
element in the system of civil procedure relations
and an independent system of interconnected
structural elements.
System and structural method was helpful in the
study of the form and content of the judgment
and the allocation of its structural elements.
The interpretation of the texts of legal
instruments and materials of court practice was
carried out using the hermeneutic method.
Legal and comparative method enabled to equate
various types of court decisions (rulings) within
the current legislation in accordance with the
European standards.
Legal and modeling method enables to draft the
authors’ determination of the term “judgment”.
The method of theoretical generalization made it
possible to substantiate the findings, which
represent the results of the research.
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Literature Review
Formation and development of court decisions in
civil proceedings has been the subject matter of
the research by many foreign and domestic
scholars.
Thus, Andronov indicates in his work “Judgment
in the civil proceedings of Ukraine” (2018) that
judgment is a procedural document that resolves
procedural issues related to the progress of the
case in court. The author considers such a
concept traditional. The dissertation analyzes the
development and formation of judgments, the
features that distinguish them from court
decisions.
Mayka (2019), having investigated the issue of
execution of judgments in civil proceedings
notes that by issuing a judgment the court
responds to violations of legal norms by the
party, provides access of any person to justice
and has the right to influence the enforcement of
the enacted judgment. The classification of
judgments in civil proceedings is given and the
proposal to supplement the Civil Procedure Code
with the article entitled “Execution of court
rulings” is made.
Pidchenko examines in his dissertation “Court
decisions in cases of special proceedings” (2019)
judgments that can be adopted in cases of
incidental proceedings. The author believes that
judgments are court decisions that address issues
related to the initiation of civil proceedings. The
paper describes the types of judgments that can
be issued in cases of incidental proceedings. In
particular, attention is paid to special cases of
issuing a separate judgment in incidental
proceeding.
Sivakumar (2016) drew the line between the
judgment and judicial opinion and stated that a
court decision should be clear, explicit, articulate
and understandable even to the average person.
Qureshi (2020) distinguished between
court judgement, decree and order, examined
their features and peculiarities of the
presentation.
The article also uses the corresponded judgments
of the European Court of Human Rights, legal
instruments regulating the issue under
consideration as well as court practice.
Results and Discussion
Court decision as the most important act of
justice
As it has been already mentioned, justice, which,
in accordance with Article 124 of the
Constitution of Ukraine (Law of Ukraine
No. 254k/96-VR, 1996), is administered
exclusively by courts, is among the main means
of effective promotion and protection of human
rights.
The court should ensure fair trial in order to
establish the violation of the disputed laws and
freedoms of an individual, legal entity and the
interests of the State in compliance with the
provision of substantive and procedural law. The
outcome of such an argument is court decision
made in conformity with the demands of the
applicable law (Andronov, 2012, p. 287).
According to the decision of the Plenum of the
Supreme Court of Ukraine No. 14 (2009), court
decision is the most important act of justice,
which aims to protect human rights and freedoms
in accordance with the rule of law. In this regard,
courts should strictly adhere to the requirements
of legality and legitimacy when making a court
decision (Law of Ukraine No. 1618-IV, 2004).
Thus, court decision, which concludes the case,
testifies to its value not only for the participants
in the process, but also for society as a whole.
Andronov indicates that at the beginning of the
20th century, the attention of researchers was paid
to the lower court’s decision (Andronov, 2018,
p. 228). It was believed that the role of a court
decision is a response to an appeal to the court, to
a lawsuit. And the decision of the court
proclaimed the right of the parties. Accordingly,
the detailed examination of the form of action for
the protection of rights began, which was
reflected in numerous scientific works. It is
believed that this approach is the result of the
classification of court decisions that exists
nowadays.
Types of court decisions
Currently, there are the following types of
judgments in line with Article 258 of the Civil
Procedure Code of Ukraine (Law of Ukraine No.
1618-IV, 2004) (hereinafter – the CPC of
Ukraine): 1) judgments; 2) decisions;
3) resolutions; 4) court orders. Each of these
procedural acts can be considered a decision, as
it expresses the mental activity of the court and
the result of resolving disputes. But with regard
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to the decision of the courts on different
procedural issues, there should be a difference in
procedural forms, i.e. the procedural document
adopted by the court – the decision, judgment,
resolution or court order – by its very nature must
also correspond to the legal content.
We propose to consider in more detail this type
of court decision as a court decision.
According to the Legal Dictionary-manual
(2021), judgment in civil proceedings is a
document, to which individual questions put to
the court are addressed. In other sources, the
following definition can be found: it is an oral or
written court decision that resolves issues related
to the proceedings (OnlineCorrector, 2021).
Zahainova (2007, p. 313) states that judgment is
a judicial act issued in the manner prescribed by
law and in the appropriate procedural form,
which resolves issues related to the
administration of justice in civil proceedings".
Frolova (2014, p. 76) notes that "it is not only the
results of interim issues of civil proceedings that
are processed through judgments, but also the
completion of the process without resolving the
case on the merits".
The concept of judgment
Unfortunately, the domestic civil procedural
legislation does not enshrine the concept of
"judgment" or "court judgment", just sets
requirements for its resolution. Among them: the
content of the judgment (Article 260 of the CPC),
the procedure for entry into force of the judgment
(Article 261 of the CPC), the procedure for
issuing a separate judgment (Article 262 of the
CPC), etc.
Most scholars consider judgment to be a
procedural document that addresses the problems
of the progress of a case. However, in some
cases, judgment can be issued by a court before
and after the trial, so this approach has lost its
relevance.
Zeider (1959) indicates that judgments and
decisions are the types of court rulings, but they
are different in their procedural nature, as
judgments address certain issues that arise in the
case.
Abdullina (1964) notes that judgments are the
acts of justice that are issued in conformity with
the law and resolve a number of issues that arise
in the process, but do not resolve the case on the
merits. That is, one can see that the views of
scientists in this regard are similar. But is such a
definition relevant nowadays? To answer this
question, it is necessary to consider the properties
of court judgments and the requirements imposed
on them.
Requirements that are put forward to a court
judgment
Let’s start with the requirements that are inherent
in both court judgments in particular and court
decisions in general, namely: legality; validity;
completeness; clarity; precision; motivation;
compliance with the procedural form in
conformity with the law. The listed requirements
are also supplemented by comprehensiveness,
fairness, clarity, etc. But there are two main ones
among them – validity and legality.
According to Art. 263 of the Civil Procedure
Code of Ukraine (Law of Ukraine No. 1618-IV,
2004), a decision made by a court pursuant to the
rules of substantive law under the norms of
procedural law is legal one. Reasonable is the
decision made on the grounds of completely and
thoroughly investigated facts, to which the
litigants appeal as the cause of action, supported
by the evidence that was studied at the trial. At
the same time, such term as the «motivation» of
a judgment arises in the civil procedural legal
field. Opinion № 11 on the quality of judicial
decisions (Council of Europe, 2008) states that
clear reasons and justifications are the key
demands for judgments and a core element of the
right to a just process. The Code of Civil
Procedure does not provide for such a
requirement, but the Code of Criminal Procedure
does. According to Art. 370 of the Criminal
Procedure Code of Ukraine (Law of Ukraine
No. 4651-VI, 2012), the motivated decision shall
contain an appropriate and sufficient reasons and
grounds for its adoption.
According to the case law of the European Court
of Human Rights, the criteria for the motivation
of a court decision are: the decision is a statement
that the parties have been heard by the trial;
verdict is the result of the judge’s examination of
the evidence, which was carried out impartially
and reasonably; the decision describes the
reasonable actions by the court; the decision
clearly indicates the reasons for the trial, which
gives grounds to properly analyze its position,
etc. (Morozov, 2019).
Moreover, adequate reasoning requires that
judges have sufficient time to prepare decisions.
Thus, the court decision must contain answers to
the arguments of the parties; examination of the
circumstances of the case and issues of law; if
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necessary, interpretation of the law, etc. In this
regard, the judgment of the European Court of
Human Rights in the case of Hadjiyannakou v.
Greece (2019) states that “the court must clearly
indicate the grounds, on which its decision is
based" (Judgment of the ECHR, 2019). That is,
we can state that the concepts of "motivation"
and "reasonableness" are identical in civil
proceedings, so there is no need to apply them in
combination.
Similar legal view is enshrined in the judgment
by the ECHR in the proceedings "Seryavin and
others v. Ukraine" (2011). Thus, the Court stated
that "judgments and other dispute settlement
agencies should proporly justify the reasons,
upon which they are based. The extent, to which
the court should fulfill the duty to justify the
decision may vary depending on the nature of the
decision […] Another purpose of a substantiated
judgment is to show the litigators that they have
been heard. In addition, a well-founded decision
allows a party to challenge it and to have it
reviewed by a higher authority. Only with a
reasoned decision can public control over
administration of justice be ensured.
Besides, clarity is one of the important
components of court decisions; it means that
court decision must be made clear and
understandable, contain logically structured
decisions, and therefore be clear to the parties
and the public. All of the above applies to
judgments as a type of court decisions.
An interesting criterion for a good judgment is an
accessible style. The in Consultative Council of
European Judges in its Opinion № 11 (Council of
Europe, 2008) emphasizes that “decisions must
be clear […], but each judge is allowed to select
his (her) own fashion or use standards-based
patterns”. That is, the decision should be clear
and simple, but with an individual approach.
Each judge can determine his own style, which
will help him to better present the material, which
will be clear to the parties. Consequently, the
European Court of Human Rights is the flagship
in new approaches to judgment writing, in each
decision of which there is a balanced emotional
pattern, selection of logically consistent
headings, numbering of each paragraph, etc.
Content of a judgment
Civil procedural legislation clearly defines the
content of judgments, which are executed in the
form of a procedural document. Accordingly,
judgment consists of: 1) the introductory part
indicating the date and place of its resolution;
name of the courthouse, surname and initials of
the judge; names (titles) of the litigants; 2)
descriptive part indicating the essence of the
petition and the name (title) of the person who
filed it, or another issue to be resolved by the
resolution; 3) motivating part, indicating the
grounds, on which the judge reached the
findings, and the law that he (she) applied when
issuing the decision; 4) operative part, indicating
the conclusions of the court, the time limit and
the procedure for making the judgment
enforceable and for appealing against it (Art. 260
of the Civil Procedure Code of Ukraine).
However, the content of the judgment is not
always the same, it depends on the procedural
order of its decision. For example, the name and
initials of the court clerk may be missing from
the introductory part, or only participants
identified in the statement of claim are specified.
That is, it all depends on the case.
ECtHR practice, documents of international
organizations – the Committee of Ministers of
the Council of Europe, the OSCE, the Advisory
Council of European Judges; principles and
standards of the Council of Europe, OSCE, EU,
the provisions of the Convention for the
Protection of Human Rights and Fundamental
Freedoms should be considered when making
judicial decisions in national proceedings. It
follows that the court decision must meet the
requirements of international standards,
by which the Ukrainian parliament has agreed to
be bound.
Separate judgment
The CPC of Ukraine (Law of Ukraine No. 1618-
IV, 2004) also enshrines the content of separate
judgment. Thus, the court may issue a separate
decision in the following cases: 1) finding
violations of the law in the resolution of the
dispute or deficiencies in the activities of legal
entities, government agencies or other bodies; 2)
in cases of abuse of procedural rights, violation
of procedural duties, improper performance of
professional duties; 3) in relation to a state
executor, a private executor, if the court
concludes that there are signs of a criminal
offense in the actions of such persons; 4) in the
case of false testimony by witness, expert or
translator, false expert opinion or incorrect
translation, falsification of evidence (Article 262
of Civil Procedural Code of Ukraine).
Let’s consider some examples. Thus, on
September 08, 2020, the Shyshaky District Court
of Poltava Region (2020) in the case
№ 551/506/20 in relation to the discovery of false
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testimony provided by witness PERSON_1 by a
court, issued a separate judgment on immediate
sending copies of case materials to Shyshaky
police department to make a decision on the
merits.
Donetsk Court of Appeal in Civil Cases (2019)
issued a separate judgment in the case
237/3829/19 for fail to meet the requirements of
procedural law on just, unbiased and prompt
handling and addressing civil cases by the
presiding judge. That is, we can state that a
separate judgment in civil proceedings in these
cases is a court decision, by which the court
responds to the violations of the law found in
civil proceedings by any party, as well as
establishing the causes and conditions of such
violations. The main thing is that such separate
judgments meet the demands laid down by law.
The separate judgment of Ivano-Frankivsk Court
of Appeal (2021) in the case No. 344/5006/16-ts,
decided to notify Ivano-Frankivsk City Council
of violations discovered during the consideration
of a civil case in order to eliminate them, what
must be reported to the Court of Appeal within
three months of receipt of a separate judgment.
Kropyvnytskyi Court of Appeal (2012) in its
separate judgment in case No. 398/3650/17,
decided to send a copy of the specified separate
judgment to JSC "Ukrposhta" in order to take
measures to prevent a repetition of the
shortcomings in the work of postal branches
identified by the Court of Appeals in the future.
The CPC of Ukraine (Law of Ukraine No. 1618-
IV, 2004) stipulates that the judgment comes into
force immediately after its promulgation.
Decisions rendered by a court outside the court
or in court, in case of absence of all participants
in the case, examination of the case without
notice (summons) of participants in the case,
come into force after signing by the judge
(judges) (Article 261 of the CPC of Ukraine).
Basing on the ideas of the scientists on this issue,
we can observe that there are controversial issues
related to various ways to comprehension of the
essence of the law itself. Enforceability is
inherent only in a court decision, and not in
individual judgments, as that is the decision that
resolves the dispute.
We do not agree with this opinion, since
judgment is the type of court decision, so why
can't it come into force? Hurvich (1955) is of the
same opinion; he emphasized that court decisions
are endowed with legal force, as courts resolve a
number of issues that are necessary for justice.
However, the judgment of the European Court of
Human Rights in the case of Sovtransavto
Holding v. Ukraine (2002) states that “one of the
main elements of the primacy of law is the
principle of legal safety, which provides that
court decision in any dispute, which has entered
into force, cannot be questioned. That is, the
legality of the court decision lies in the strict
observance of the applicable rules of law
provided for in this decision, its content and
purpose, and cannot be questioned.
Conclusion
Summing up, we can conclude that judgment is a
type of court decision. The requirements for
judgments are: legality, reasonableness,
motivation, accuracy, compliance with a certain
procedural form, accessible style. Judgment is an
independent document, which consists of
introductory, descriptive, narrative and operative
parts. International standards must be taken into
account when adjudication. Judgment comes into
force immediately after its promulgation and
may be appealed within the period specified by
law.
The understanding of the judgment by the
participants of legal relations as a legal act will
contribute to increasing its theoretical and
practical value as an element of the mechanism
of legal regulation of civil legal relations. This
will also ensure the fastest and most effective
enforcement of the litigant’s rights. To achieve
this, it is necessary to understand what is court
decision is and which are its features.
Based on the analyzed material, we propose our
own definition of the judgment: judgment in civil
proceedings is a lawful and reasonable court
decision, which considers a civil case on the
merits and resolves a dispute to defend rights,
freedoms and legitimate interests of the person.
At the same time, judgment is not only a legal
way to protect them, but also a legal means for
the court to fulfill its main social purpose – the
administration of justice.
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