JUDICIAL PROOF AND EVIDENCE IN THE ARBITRATION PROCESS
As a result of studying Ch. 7 students must:
• The concept of judicial evidence as a form of judicial knowledge of the circumstances of civil cases;
• the concept of judicial evidence;
• distribution of responsibilities for proving;
• The notion of evidentiary presumptions;
be able to
• Apply the experience of international and United States judicial practice in arbitration proceedings;
• skills of applying modern legal tools to solve practical problems.
Proving as a kind of judicial knowledge of the circumstances of civil cases
The proving takes the central place in arbitration proceedings, is its "core". From its results, the adoption of the most important procedural decisions ensuring the fulfillment of the tasks facing justice and the achievement of the goal of protecting the violated or contested rights and legitimate interests of persons engaged in entrepreneurial and other economic activities depends on its results.
The task of the arbitration court should be to properly and timely examine and resolve civil cases. To solve the task, the judge needs to achieve a correct knowledge of the actual circumstances of the case and accurately apply the norms of substantive law to the established factual circumstances in the judgment.
Any human activity, as is known, is unthinkable without knowledge, which in each area has specific features. For example, in the arbitration process in the proceedings and review of decisions, the main efforts of the judges are aimed at studying all the circumstances of the case and evaluating the collected material.
Therefore, the specificity of judicial knowledge is that it is conducted to ensure the correct application of the law by the court in resolving the case on the merits.
However, the court and the persons participating in the case must study only those facts that have legal and evidentiary value. Judicial knowledge is clearly and in detail regulated by procedural law. Cognitive activity to a greater or lesser extent is occupied by the majority of participants in arbitration proceedings, but only the results of the knowledge of the court are crucial in the implementation of the "economic" justice.
Arbitration procedural law knows two forms of judicial knowledge: direct (empirical) and mediated (proving). Procedural actions taken during the session, the judges learn through the senses: they hear the testimony of the parties and witnesses, see their reaction to what is happening in the court, examine the material object of the claim and material evidence.
Of course, this form is process-economical, since it is fleeting and the results of such knowledge are very convincing. However, the possibilities of cognition are limited due to the fact that the absolute majority of the facts that are relevant for the lawful and justified consideration and resolution of a civil matter have occurred outside the court session and long before it (for example, the conclusion of a transaction, improper performance of an obligation, etc.)
Since these facts can not be objectively perceived directly (empirically), since they occurred in the past, this form of judicial knowledge, as proof, is mandatory.
Thus, in the arbitration process, judicial evidence is a detailed activity of the court, as well as the persons participating in the case, for investigating with the help of evidence of facts in order to establish judicial truth in the case, regulated by arbitration procedural law.
When proving on the basis of received information about facts in a strictly defined procedure, the court establishes the presence or absence of actual circumstances of the case that are relevant for the proper administration of justice.
The following points are essential for understanding proof:
• Evidence is the activity of the arbitration court, the persons participating in the case, which in its form and content is legal (arbitration procedure), because it is clearly and in detail regulated by the rules of arbitration procedural law;
• The concept of proof is inextricably linked with evidence, since only by operating with them can information on the facts of the case be established, as only the court assists in the collection, investigation and evaluation of evidence, as a result of which it learns the actual side of the disputed dispute about law;
• In formal proof, the rules of formal logic play an important role, since the very process of proof and its results must be logically correct.
However, it should be borne in mind that logical processes are not regulated by the rules of arbitration procedural law. However, if the findings of the arbitral tribunal in the decision do not correspond to the actual circumstances of the case, then such decision shall be canceled. In other words, non-observance of logical rules of thinking leads to the error of the act of justice with all the ensuing negative consequences.
Judicial cognition is that the judge first determines what circumstances are of significant importance. In doing so, he must be guided by the disposition and hypothesis of the rule of substantive law to be applied, and take into account the claims and objections stated by the parties.
Thus, the judge establishes the subject of evidence in the case, and only then these facts are to be proved by the parties in the case.
The cognitive process ends with a statement of conclusions in the judicial decision in precise logical accordance with the proven circumstances of the case. Therefore, the court's errors at any of these stages make the decision unreasonable and subject to cancellation.
In addition, when proving, procedural actions harmful to life, health, and the reputation of citizens, detrimental to honor and dignity, as well as business reputation are not allowed. The arbitration court is obliged to take measures to preserve in secret information about the personal life of citizens, as well as information constituting a commercial secret for individuals and legal entities.
The process of judicial evidence in the arbitration process consists of the following stages:
1. Collection and presentation (detection, demand) of evidence. In most cases, the judges do not experience any difficulties, since the parties themselves form the composition of the evidence necessary for the proper resolution of the case and collect them for further submission to the court. In the classic adversarial process, the collection and presentation of judicial evidence is entrusted only to parties and other persons participating in the case. Therefore, the role of the court consists only in assisting the interested parties in collecting the necessary evidence: issuing a decision on the conduct of the examination, court order, etc.
2. Research evidence by comparing them with each other, analyzing the merits, etc. The study is a definition of the reliability of each individual proof and the totality of them.
3. The evaluation of evidence is the most important and final step in the process of proof. And although the evidence is evaluated by the court and other participants throughout the entire process of proof, without which cognitive activity is inconceivable at every stage of the proof, it is also crucial that the evidence be evaluated by the court after their examination in the court session. In connection with this evaluation of evidence, an independent art. 71 APC.
In the arbitration process, the internal conviction of judges should serve as a criterion for evaluating evidence, which also must be based on a comprehensive, complete, objective and direct investigation in the court session of all the circumstances of the case in their totality. Therefore, the judges' legal awareness and the law that they will apply when reviewing and resolving the case (which, incidentally, helps the court determine the boundaries of judicial knowledge in terms of the relevance of the evidence submitted) will be crucial in the assessment.
No evidence should not have a pre-established force for the court (Article 71 of the APC). The court assesses the relevance, admissibility, reliability of each proof separately, as well as the sufficiency and interdependence of evidence in their totality.
The results of the evaluation of evidence the court must reflect in the decision, which provides reasons for which some evidence is taken as a means of justifying the findings of the court, and others - rejected by the court, as well as the reasons for which one evidence is given preference over others.
When assessing the authenticity of a copy of a document or other written evidence, the court checks whether the contents of a copy of the document have changed compared to the original when copying, what technique the copy was taken, whether the copy process guarantees the identity of the copy and the source, .
The court can not consider the fact to be proved as evidence, only a copy of the document or other written evidence, if the original document is lost and not handed over to the court, and copies of this document submitted by each of the disputing parties are not identical, and it is impossible to establish the original content of the original source with the help of other evidence.
Having established the reliability of the evidence, the court must also determine their sufficiency, i.e. it is possible or not, on the basis of the collected evidence, to draw a conclusion about the presence or absence of the facts sought (Article 71 of the agrarian and industrial complex).
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