Comparison of the Draft 2017 and the Civil Procedure ...

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Comparison of the Draft 2017 and the Civil Procedure Code of Ukraine By Iryna Izarova, Shevchenko National University of Kyiv

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Civil Procedure Code of Ukraine 2004,

Reform of Civil Procedure in Ukraine

was adopted September, 1 2004, was enter into force on September 1 2005 and is acting now. During 2005-2017 more than 69 amendments were made, among them 22 in 2014-2017

Civil Procedure Code of USSR 1963, was adopted July 18 1963, was acted till 2005. During 1991-2004 more than 34 amendments were made.

Civil Procedure Code of Ukraine 2017, Draft of Law with amendments of Commercial Procedure Code, Civil Procedure Code, Code of Administrative Procedure, and other Laws № 6232 March 23 2017.

+ EU - Ukraine Association Agreement 2014 Article 24

Legal cooperation

Article 14 The rule of law and respect for human rights and fundamental freedoms In their cooperation on justice, freedom and security, the Parties shall attach particular importance to the consolidation of the rule of law and the reinforcement of institutions at all levels in the areas of administration in general and law enforcement and the administration of justice in particular. Cooperation will, in particular, aim at strengthening the judiciary, improving its efficiency, safeguarding its independence and impartiality, and combating corruption. Respect for human rights and fundamental freedoms will guide all cooperation on justice, freedom and security.

1. The Parties agree to further develop judicial cooperation in civil and criminal matters, making full use of the relevant international and bilateral instruments and based on the principles of legal certainty and the right to a fair trial. 2. The Parties agree to facilitate further EU-Ukraine judicial cooperation in civil matters on the basis of the applicable multilateral legal instruments, especially the Conventions of the Hague Conference on Private International Law in the field of international Legal Cooperation and Litigation as well as the Protection of Children. 3. As regards judicial cooperation in criminal matters, the Parties shall seek to enhance arrangements on mutual legal assistance and extradition. This would include, where appropriate, accession to, and implementation of, the relevant international instruments of the United Nations and the Council of Europe, as well as the Rome Statute of the International Criminal Court of 1998 as referred to in Article 8 of this Agreement, and closer cooperation with Eurojust.

Back ground of the Reform

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Memorandum of Economic and Financial Policies concluded between Ukraine and the International Monetary Fund 35. We will implement measures to strengthen the effectiveness of the judiciary. Following up on the recommendations of the July 2014 diagnostic report, we will press for measures to enhance the efficiency and effectiveness of the legal enforcement process and the integrity of legal institutions. Specifically, our reform program will encompass the following areas: (i) judicial reform; (ii) financial efficiency; and (iii) effective enforcement of commercial claims. These reforms will be supported by a number of measures: … Order of Payment Procedure and Garnishments. By endAugust 2015, a Law will be adopted which strengthens the provisions in the Code of Civil Procedure on Order for Payment for domestic transactions and on garnishment of bank accounts (structural benchmark). In particular, the Order of Payment provisions will be amended to expand substantially the range of claims covered, streamline the evidence required, and make use of standardized forms. Regarding garnishment, our goal is to remove bottlenecks that have been identified as hampering the effectiveness of the procedure in such areas as definitional issues, locating debtor bank accounts, service of process, adherence to strict timelines, and the liability of banks for non-compliance. We will complete an implementation plan for the new provisions by end- August 2015. The law will take effect according to a schedule allowing assessment of the results of its implementation and mitigating the risks of negative consequences.

Draft of Law on adjustments to some legislative acts of Ukraine on introduction of order proceedings in civil and commercial procedure on 14 January 2016 № 3769

Draft of Law on adjustments to some legislative acts of Ukraine on introduction of automated preservation of funds in civil and commercial procedure on 14 January 2016 № 3768

+ According to its provisions, the reforming of

The Strategy of reforming the judiciary, the court proceedings and related legal institutions for 20152020

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the judicial system,

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court proceedings and

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related legal institutions

are carried out in such areas as justice and efficiency optimization powers of the courts of various jurisdictions; transparency and openness of justice, etc.

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The main result of the Judiciary Reform in Ukraine: Law on the Judiciary and Status of the Judges № 4734 May 30, 2016

Supreme Court of Ukraine

Appeal Courts Courts of First Instance

Courts of First Instance

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The Code and the Drafts: Main Provisions CPC of the Ukrainian SSR in 1963, as of August 24, 1991 Section I. Main items:

CPC of Ukraine in 1963, as of September 1, 2005 Section I. Main items:

Draft of the CPC of Ukraine, 2004 Section I. Main items:

CPC of Ukraine in 2004, as of April 26, 2017 (last changes) Section I. Main items:

Draft of CPC of Ukraine in 2017

main provisions;

main provisions;

main provisions;

main provisions;

main provisions;

Court composition;

Court composition;

Court composition;

Civil jurisdiction;

Civil jurisdiction

Subordination of civil cases to courts;

Subordination of Civil cases to courts;

Subordination;

Court composition;

Persons involved in the case; Other participants of the trial;

Persons involved in the case; Other participants of the trial;

Proof;

Proof;

Evidence and proof

Procedural time limits;

Procedural time limits,

Judicial summons and notifications;

Judicial summons and notifications,

Litigation costs;

Litigation costs,

Measures of procedural coercion.

Measures of procedural coercion,

Proof;

Proof; precautions; Litigation costs;

Litigation costs;

Litigation costs;

Court fines;

Court fines;

Judicial summons notifications;

Procedural time limits;

Procedural time limits;

Court fines;

Judicial summons notifications;

and

Section II. Persons involved in the case; Their rights and responsibilities: Terms, Parties, third parties, representation in court, The powers of the prosecutor in the process (title of the chapter in the edition of December 15, 1992), The participation of public administration bodies, trade unions, enterprises, institutions, organizations and individuals that protect the rights of others

Judicial summons notifications;

and

Section II. Persons involved in the case; Their rights and responsibilities: Terms, Parties, third parties, representation in court, Participation in the process of the prosecutor, bodies of state power, bodies of local self-government and persons, which the law granted the right to protect the rights and freedoms of others

Measures of responsibility.

and

procedural

Section I. Main items:

(Substantive and subjective jurisdiction, forum jurisdiction, territorial jurisdiction (arbitrability))

Court composition, Participants of the trial (participants in the case, representatives, other participants of the trial) (Basic provision of evidence, testimony, written evidence, material evidence, electronic evidence, expert opinion, expert opinion in the field of law, ensuring of evidence)

Provision of a claim

CPC 2017

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Court of First Instance: CPC of the Ukrainian SSR in 1963, as of August 24, 1991 Section III. Proceedings in the court of first instance:

CPC of Ukraine in 1963, as of September 1, 2005 Section III. Proceedings in the court of first instance:

Draft of the CPC of Ukraine, 2004 Section III. Proceedings in the court of first instance:

А. Action proceedings: arbitrability, filing a claim counterclaim, preparation of civil cases for trial; provision of a claim; trial; protocols; judgment; immediate execution of court decisions; suspension of proceedings, closure of the case, refusal of an application without consideration, enforcement of a court decision; decisions by the court of first instance;

А. Action proceedings: arbitrability, filing a claim counterclaim, preparation of civil cases for trial; provision of a claim; trial; protocols; judgment; immediate execution of court decisions; suspension of proceedings, closure of the case, refusal of an application without consideration, enforcement of a court decision; decisions by the court of first instance;

А. Order for Payment Procedure: court order,

B. Proceedings in cases arising because of administrative-legal relations: terms complaints about mistakes in voter lists and in the lists of citizens entitled to vote in a referendum ...

B. Proceedings in cases arising because of administrative-legal relations: terms complaints about mistakes in voter lists and in the lists of citizens entitled to vote in a referendum ...

B. Action proceedings: arbitrability, filing a claim and dispute of case, proceedings before the trial, provision of a claim, litigation court decisions, immediate execution of court decisions, entry into force of a court decision suspension of proceedings, closure of proceedings leaving the application without consideration, default judgment, fixing of litigation,

CPC of Ukraine in 2004, as of April 26, 2017 (last changes) Section ІІ. Order for Payment Procedure

Draft of CPC of Ukraine in 2017

Section ІІІ. Action proceedings: arbitrability, filing a claim, opening of proceedings, proceedings before the trial, litigation fixing the civil process suspension and closure of proceedings, leaving the application without consideration court decisions correspondence examination of a case trial in absentia, peculiarities of litigation in cases of claims and recognition of unfounded assets

Section ІІІ. Action proceedings: written statements of participants of the case (statements in substance, statements from procedural issues), opening of proceedings preparatory proceedings settlement of a dispute with the participation of a judge, refusal of the plaintiff from the claim, amicable agreement, trial by court (terms, opening of proceedings, clarification of circumstances of case and research of evidence, litigation and decision making), fixing of the the litigation, suspension and closure of proceedings, resignation of the claim without consideration, court decisions, consideration of case in simplified proceedings, trial in absentia, peculiarities of the claim in cases of recognition of unfounded assets and their claims

Section ІІ. Order for Payment Procedure

CPC 2017

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Special Proceedings: CPC of the Ukrainian SSR in 1963, as of August 24, 1991

CPC of Ukraine in 1963, as of September 1, 2005

Draft of CPC of Ukraine, 2004

CPC of Ukraine in 2004, as of April 26, 2017 (last changes)

Draft of CPC of Ukraine in 2017

C. Separate proceedings:

C. Separate proceedings:

C. Separate proceedings:

Section ІV. Separate proceedings:

Section ІV. Separate proceedings:

main items, recognition of a citizen as a one with limited abilities or incapacitated; recognition of a citizen as a missing or declaration of his death; establishing of incorrect record in civil status acts; establishing facts of legal significance; restoration of rights to lost securities; appeal of notarial acts or refusal to perform them

main items, recognition of a citizen as a one with limited abilities or incapacitated; recognition of a citizen as a missing or declaration of his death; Adoption of children living on the territory of Ukraine by citizens of Ukraine and foreign citizens; establishing of incorrect record in civil status acts; establishing facts of legal significance; restoration of rights to lost securities; appeal of notarial acts or refusal to perform them

main items, recognition of a physical person as a one with limited abilities or incapacitated; recognition of a natural individual as a missing or declaration of his death; adoptions; establishing of incorrect record in civil status acts; establishing facts of legal significance; restoration of rights to lost securities and bills of exchange; appeal of notarial acts or denial of their commission; Giving full capacity to the minor; recognition of things as ownerless; providing compulsorily psychiatric help to a person; about obligatory hospitalization to an antituberculous institution

main items, Consideration of court cases on restriction of civil capacity of an individual, recognition of a physical person incapacitated and renewal of civil capacity of an individual;

main items, Consideration of court cases on restriction of civil capacity of an individual, recognition of a physical person incapacitated and renewal of civil capacity of an individual;

Consideration of the cases of granting a minor full civilian capacity by the court;

Consideration of the cases of granting a minor full civilian capacity by the court;

recognition of a physical person as a missing or declaration of his death; adjudication proceedings by the court; consideration of cases on the establishment of facts of legal significance by the court; consideration of cases on the restoration of rights to lost securities and promissory notes by the court; consideration by the court of cases on the transfer of ownerless immovable property to communal property; court consideration on recognition of inheritance from the dead; court consideration of cases on providing compulsorily psychiatric help to a person; about obligatory hospitalization to an antituberculous institution; court consideration of cases of bank disclosure of information containing banking secrecy with regard to juveniles and individuals

Consideration of court cases on recognition of a natural individual as a missing or on declaration of his death; court consideration of cases on adopting; court consideration of cases on establishing facts of legal significance; court consideration of cases concerning the restoration of rights to lost securities and promissory notes; court consideration of cases concerning the transfer of the restoration of rights to lost securities and promissory notes; court consideration of cases on the transfer of ownerless immovable property to communal property; court consideration of cases on the recognition of the inheritance from the dead; court consideration of cases concerning the provision of compulsory psychiatric assistance to a person; court consideration of cases of forced hospitalization to an antituberculous institution; court consideration of cases of bank disclosure of information containing banking secrecy with regard to juveniles and individual

CPC 2017

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Review of decisions and Recognition and Enforcement CPC of the Ukrainian SSR in 1963, as of August 24, 1991 Section IV. Proceedings in cassation and appeal instances: cassation appeal of a court decision and submission of a cassation appeal to the prosecutor (title of the chapter in the wording of December 15, 1992.); cassation appeal to the court of first instance and the submission of a separate submission by the prosecutor (title of the chapter in the wording of December 15, 1992.);

CPC of Ukraine in 1963, as of September 1, 2005 Section IV. Review of court decisions:

Draft of CPC of Ukraine, 2004

Draft of CPC of Ukraine in 2017

Section ІІІ. Review of court decisions:

CPC of Ukraine in 2004, as of April 26, 2017 (last changes) Section V. Review of court decisions:

appeal proceedings;

appeal proceedings;

appeal proceedings,

appeal proceedings (appeal claim, opening of appeal proceedings, appeal consideration),

cassation proceedings;

cassation proceedings;

cassation proceedings,

review of decisions, decisions that have taken legal effect, in connection with newly discovered and exceptional circumstances

review of court decisions by the Supreme Court of Ukraine in the order of re-appeal;

review of court decisions by the Supreme Court of Ukraine,

review in connection with newly discovered circumstances of decisions that became legally binding.

reviewing in the order of judicial review of decisions and rulings of the court, which became legally valid;

Proceedings in circumstances

connection

with

the

CPC 2017

Section V. Review of court decisions:

new

cassation proceedings (cassation claim, opening cassation proceedings, cassation consideration),

of

Review of court decisions under new or exceptional circumstances

Review in connection with newly discovered circumstances of decisions and rulings of the court, which became legally binding

Section V. Execution of court decisions: main items, foreclosure of property of citizens recourse to salary (earnings), pension and scholarship of the debtor, collection of property of enterprises ... execution of a decision by which the defendant is obligated to perform certain actions, turn of execution,

Section V. Application for a judicial decision to be executed and a turning point for enforcement: the application of a court decision to enforcement, turn of execution

Section IV. Appeal of court decisions to execution and turn of execution (application of court decision to execution, contents of the executive letter, the settlement agreement in the process of execution, deferral and installment of the execution of the decision appeal deadlines The procedure for solving the issues of turning execution and the peculiarities of turning execution from certain categories of cases, etc.)

Section VІ. Procedural issues related to the enforcement of judgments in civil cases and decisions of other bodies (officials) Section VІІ. Judicial control over enforcement of court decisions 1

Section VІІ . Proceedings in appeals against decisions of arbitration courts and on the issuance of enforcement orders for the enforcement of arbitration decisions: proceedings in cases against arbitral tribunals' decisions, proceedings in issuing executive writes on the enforcement of arbitration decision Section VІІІ. About recognition and enforcement of decisions of foreign courts in Ukraine: Recognition and appeal to the execution of a foreign court to be enforced, recognition of a foreign court ruling that is not subject to enforced execution

Section VІ. Procedural issues related to the enforcement of judgments in civil cases and decisions of other bodies (officials) Section VІІ. Judicial control over enforcement of court decisions Section VІІІ. Proceedings in appeals against decisions of arbitration courts, challenging decisions of international commercial arbitrations Section ІХ. Recognition and enforcement of decisions of foreign courts, international commercial arbitration in Ukraine, granting permission to enforcement of decisions of arbitration courts: recognition and appeal to the enforcement of a foreign court's decision that is subject to enforcement recognition of a foreign court's decision that is not subject to enforcement, recognition and granting of permission to execute the decision of international commercial arbitration, proceedings in cases of granting permission for the enforcement of decisions of arbitration courts

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Proceedings with Foreigners and some remarks CPC of the Ukrainian SSR in 1963, as of August 24, 1991

CPC of Ukraine in 1963, as of September 1, 2005

Draft of CPC of Ukraine, 2004 Section V. Restoration of lost litigation;

Section VI. Civil procedural rights of foreign citizens and stateless persons. Claims to foreign states, court orders and decisions of foreign courts. International treaties (title of the section in the wording of January 23, 1981)

Section VI. Civil procedural rights of foreign citizens and stateless persons. Claims to foreign states, court orders and decisions of foreign courts. International treaties

Section VI. Proceedings in cases involving foreign persons (filing a claim to a foreign state, executing court orders of foreign courts and appealing of the courts of Ukraine to foreign courts, recognition and execution of decisions of foreign courts in Ukraine, application of the rules of international treaties)

Overall 6 sections, 50 chapters, 428 titles

Overall 6 sections, 50 chapters, 428 titles

Overall 6 sections, 43 chapters, 422 titles

CPC of Ukraine in 2004, as of April 26, 2017 (last changes) Section ІХ. Restoration of lost litigation

Draft of CPC of Ukraine in 2017

Section Х. Proceedings in cases involving foreign persons (...)

Section ХІ. Proceedings in cases involving foreign persons

Section ХІ. Final and transitional provisions Overall 11 sections, 419 titles

Overall 11 sections, 503 titles

Section Х. Restoration of lost litigation

CPC 2017

The Main Results of the Civil Procedure Code Reform in Ukraine are: •

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Change of general provisions, introduction of new principles of the civil process proportionality, inadmissibility of procedural law abuses, changes in publicity and openness principles, reimbursement of expenses of the party in whose favor the decision was made etc.) Clarification of civil jurisdiction, definition of subjective jurisdiction New classification of participants in the trial and division of them into the participants of the case and other participants in the trial Introduction of electronic evidence Introduction of a fine as a measure of procedural provision Improvement of the procedure for securing the claim, allocation in a separate chapter. Improvement and modification of the procedure for reviewing cases in the proceeding (introduction of written statements of the participants of the case claims in the merits of the case, statement of opposition etc.), change of the action procedure - opening of proceedings, preparatory proceedings, settlement of a dispute with the participation of a judge) Introduction of simplified procedure Change in grounds for review of court decisions in new or exceptional circumstances Changes in the proceedings on appeals against decisions of arbitration courts, challenging decisions of international commercial arbitrations. Changes in the procedure for recognition and enforcement of decisions of foreign courts, international commercial arbitrations in Ukraine, granting of permission for enforcement of arbitration courts decisions

+ Thank you! To be continued)))