LEGAL EXPERT: PROBLEMATIC ASPECTS OF LEGAL REGULATION OF THE STATUS OF A PARTICIPANT IN TRIAL

Abstract

In order to exercise effectively the right to a fair trial in Ukraine, in addition to institutional changes, systematic changes in the procedural legislation of Ukraine were made during 2017-2018. Thus, amendments to the Commercial Procedural Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine (Law of Ukraine “On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine and Other Legal Acts” of October 3, 2017 № 142147-VIII) helps to overcome procedural problems that previously hindered effective judicial protection in Ukraine, in particular: - insufficient level of unity and consistency of law enforcement practice; - imperfection, and in some cases - the lack of effective procedural tools to protect the rights and interests of persons appealing to the court; - unjustified formal and informal restrictions in the use of certain means of proof, etc. One of the current trends in the procedural law in Ukraine is the functioning of the legal expert institute. The participation in the case of legal expert known as “amicus curiae”, born in the XVII century in Britain is an achievement of the Anglo-Saxon legal system. Its borrowing by the national legal system is the result of convergence, the precedent law system and the Romano-Germanic legal family, a trend that has emerged over the past two decades. The need to involve this person is caused by the same circumstances as the involvement of experts from other fields of science and technology. Namely, the need to obtain special knowledge, which the court due to its professional orientation does not have. The involvement of legal experts may be considered questionable in the light of a judge's professional experience. At the same time, it is not accidental that it is necessary to resolve one or another particular legal case, taking into account the developed theoretical approaches to the application of legal norms that may have certain conflicts with each other in the regulation of disputed legal relations. Therefore, their activities are not aimed at establishing evidence, but are in the nature of a consultative explanation of the mechanism of law enforcement in resolving the case. In determining the procedural status of legal expert, its normative inconsistency with regard to the procedural outcome of his/her activity should be emphasized. According to Article 70, legal expert is a party to the proceedings. The procedural result of his/her activity, based on the normative structure of the procedural legislation of Ukraine, is legal expert opinion. However, among other participants in the trial, the status of which is enshrined in Chapter 4 of the Commercial Procedural Code of Ukraine, there is no this procedural figure. His/her legal status seems uncertain. A reasonable question arises either (1) legal expert submits an opinion whose procedural significance is not defined by law, or (2) legal expert's opinion is submitted by a person who does not have the relevant procedural status or (3) anyway, the expert's opinion is the result of the procedural activities of such a participant in the proceedings as legal expert. There is no doubt that the logic of the legislator is not to create artificial phenomenological problems in the application of this legal construction, so it is obvious that the hermeneutic discrepancy is the result of imperfect legislative techniques. If Article 70 of the Commercial Procedural Code of Ukraine determines the legal status of legal expert, the provisions of Article 108 of the Code enshrine the legal aspects of his/her procedural activities. So it is a holistic legal structure that determines the participant in the trial and the subject of his/her professional activity in it. The mechanism of procedural participation of this person is not less contradictory. Is the court's decision to admit to the case a basis for preparing legal expert opinion and his/her subsequent involvement by the court (part 1 of Article 70 of the Commercial Procedure Code of Ukraine) or the relevant actions of the court are made after the court opinion (Part 1 of Article 108 of the Commercial Procedural Code of Ukraine)? Whether legal expert is limited to the application of analogy of statute, analogy of law and content of foreign law in accordance with their official or generally accepted interpretation, practice in the application, doctrine in the relevant foreign country or his/her procedural activities extend to an unlimited range of aspects of law enforcement (Part 1 of Article 108 procedural code of Ukraine)? The result of legal expert's procedural activity is legal expert opinion - new or significantly improved law enforcement decisions obtained during research, which can be introduced into the law enforcement practice of the court in the administration of justice during the proceedings. There is no doubt that the subject of expert activity is limited to a range of issues related to the conflicting use of legal rule.