Preliminary inquiry as a tool for ensuring the unity of judicial practice: the nature and mechanisms of introduction in civil proceedings

Abstract

In conditions of the need to continue the judicial reform in Ukraine, one of the most acute problems is the problem of the Supreme Court of Ukraine as the highest body in the system of courts of general jurisdiction, which is entrusted with a special mission – to ensure the unity of the judicial practice. In this context the apparent perceived need for finding additional procedural tools to ensure the Supreme Court of Ukraine, the unity of jurisprudence, which would increase the functional efficiency of the highest judicial body of the state. In particular, one such tool could be the Institute of preliminary inquiry.

Some research of the introduction of preliminary inquiry in civil proceedings already paid attention in the work of scholars such as I.V. Beitsun, K.V. Husarov, V.V. Komarov, V.M. Kravchuk, J.M. Romaniuk and others. However, we consider, that the stated problems is not fully resolved, and requires further scientific research.

The objective of this scientific paper is the disclosure of preliminary inquiry, its importance for the ensure unity of jurisprudence, and search mechanisms for the implementation of this institution to the national system of civil justice.

Preliminary inquiry is a court appeal addressed to the Supreme Court of Ukraine to provide interpretation or explanation of the correct way of application rule of law. Thus, the essence of prejudicial inquiry is the possibility of the court of any instance in civil cases apply to the highest judicial body of the request regarding the correct way of application the specific substantive or procedural law, thus avoiding differences in the judicial practice and prevent judicial errors committed in the future.

The Institute of preliminary inquiry most widely used in practice of Court of the European Union. Provided said institution in civil procedural law in several European countries.

Attempting introduction of the institution of a preliminary inquiry to the national system of civil justice, should focus on the issues of legal regulation of procedural form of the preliminary proceedings. In particular, a detailed description of the grounds for appeal to the preliminary inquiry, objects of the preliminary inquiry, subjects treatment, procedural order of consideration and resolution of the issues raised in the inquiry, as well as procedural and legal implications of the preliminary decision by the Supreme Court of Ukraine are provided.

Preliminary proceedings should be separate, additional procedural tool to ensure unity of jurisprudence, along with proceedings for judicial review by the Supreme Court of Ukraine. Its introduction in the national system of civil justice will expand procedural powers of the Supreme Court of Ukraine, as well as a preventive mechanism eliminating differences in judicial practice will reduce the amount of judicial errors, ultimately reducing the number of appeals court decisions. The functioning of this new mechanism will eventually become another guarantee compliance with the principle of legal certainty as a fundamental aspect of the rule of law.