SUMMARY

Luzan T. L. Establishing of the Legal Facts in Family Relationships in the Ex Parte Proceeding. - Qualifying scientific work on the manuscript.

The dissertation for the scientific degree of Candidate of Science of Law (PhD) on specialty 12.00.03 - Civil Law and Civil Process; Family Law; International Private Law (081 - Law).

Dissertation is devoted to the study of the hearing and resolving procedure of legal facts establishing in family relationships cases in the ex parte proceeding.

There are family legal facts of kinship between natural persons, dependence of a family relationships participant; registration of marriage, divorce, adoption; concubinage in the list of the studied legal facts established within the ex parte proceeding.

The paper reveals the historical development of the legal facts establishing in family relationships in XX-XXI centuries.

The peculiarities of the legal and procedural nature of such cases as a component of the ex parte proceeding are defined. They are the following: a court safeguards family legal interest in such cases; only issue of fact is acceptable within the proceeding; a claimant has the only one special procedural law - to withdraw his/her claim during the time of a case hearing; concerned persons have only general procedural rights and obligations provided in the Civil Procedural Code of Ukraine; the principle of competition in these cases does not work.

The list of general preconditions of the right to have recourse to the court in the ex parte proceeding and special preconditions of the right to have recourse to the court in the cases of the legal facts establishing in family relationships are elaborated.

General preconditions of the right to have recourse to the court in the ex parte proceeding, in particular in the cases of the legal facts establishing in family relationships are: 1) civil jurisdiction; 2) the legal nature of a claim; 3) no issue of law;

4) there is no valid judgment or decision on rejection to open proceeding or closure of the proceeding in the case with identical claimant, subject and ground of the claim;

5) there is no proceeding with the identical claimant, subject and ground of the claim in the court; 6) admissibility of the legal succession after death of an individual.

Special preconditions of the right to have recourse to the court in the cases of the legal facts establishing in family relationships are the following: 1) the facts to be established must have legal significance: appearance, change or termination of personal or property rights of a person depend on such facts; 2) the claimant does not have other possibilities to obtain or renew a document that certifies the legal fact; 3) the current legislation does not provide other not-judicial procedure to establish such facts.

Pretrial proceeding of the legal facts establishing in family relationships is characterized and the list of the pretrial actions is elaborated. Court, conducting the pretrial proceeding of the legal facts establishing in family relationships in the ex parte proceeding specifies the claimant’s demands; decides on the composition of the persons participating in the case; clarifies which evidences are or will be offered by the claimant and concerned persons to substantiate their arguments or objections on the unacknowledged circumstances; at the request of the persons participating in the case, or on its own initiative decides to demand and obtain evidences, to call witnesses for examination, to involve a specialist, an interpreter, a person who provides legal assistance in the case or to issue a commission on collecting evidences; examines a place, reviews the literal proofs and material evidences in urgent cases; conducts other actions necessary to prepare the case to be heard; defines the time and place of the case hearing.

The peculiarities of the hearing of the legal facts establishing in family relationships cases in the ex parte proceeding are revealed. During hearing of such cases the judge must define if a legal fact, which the claimant demands to establish, exists or not, its legal significance for the claimant and the availability of the conditions under which court is empowered to establish such a fact.

The judgment in the cases of the legal facts establishing in family relationships, which consists of introductory, descriptive, motivational and resolutive components, is characterized.

The special attention was paid to the law enforcement practice and its defects. The scientifically grounded propositions of the elimination of the law enforcement practice defects and improvement of Ukrainian legislation, which have features of the scientific innovation, are elaborated.

For the first time it is proposed in the dissertation: 1) to define in the current Ukrainian legislation simplified, non-judicial procedure of establishing family legal facts by the state civil registration bodies and provide the registration of any family legal facts (concubinage, dependence etc.) applying the procedure similar to the civil registration, which will provide such facts with legal certainty without necessity to establish them by the concerned persons’ claim in the court in the future; 2) to ensure the rights of citizens of Ukraine residing in the temporarily occupied territories of Ukraine, to create for such persons a right to access to justice in the controlled area, and provide an alternative jurisdiction chosen by the claimant while applying to court to establish the legal facts in family relationships, such as the registration of marriage, divorce and adoption.

The following statements are improved in the thesis: 1) the theoretical position that the term «legal facts» is general in relation to the concept «facts of legal significance». The facts of legal significance are those legal facts that may be established by the court in the ex parte proceeding in civil procedure; 2) theoretical position that courts establishing legal facts in family relationships do not protect, but safeguard legal interests linked with different branches of law. Judgments in such cases are not directed towards restoring the violated subjective rights, freedoms and interests, but their realizing. That is why such judgments are not ensured compulsorily; 3) classification of the concerned persons in the cases of the legal facts establishing in family relationships by the criterion of their obligatory participation in the case: a) natural persons whose participation in the case is obligatory (persons who are in the family relationships with the claimant, and judgment may affect on their rights, interests and responsibilities); b) persons whose participation in the case is optional (persons who are not in the family relationships with the claimant - authorities, notaries, which have denied to certify the legal fact, bodies and persons that will be involved in the judgment’s enforcement); 4) position that civil jurisdiction in the cases of the legal facts establishing in family relationships, which are acts of civil status and must be registrated by the state, is imperative (provisional) as a precondition of the right to have recourse to the court in such cases is the refusal of the empowered state registration body competent in conducting such a registration, the civil jurisdiction is exceptional in the other cases of the legal facts establishing in family relationships; 5) position that the application of the concerned person about issue of law during the hearing of the ex parte proceeding case is a conditional ground for leaving the claim without consideration.

It has received the further development in the dissertation: 1) argument that the opening the procedure in the ex parte proceeding cases causes only procedural legal consequences because the substantive consequences may occur only after opening the procedure in the cases related to the issue of law; 2) position that the participation of the empowered state authorities (the guardianship and care bodies and children services) by submitting a conclusion in the cases of the legal facts establishing in family relationships is not expedient, as there is no issue of law in such cases, the mentioned bodies and services are not competent in confirming of the relevant facts and their conclusions are not an adequate evidence in those cases.

Keywords: ex parte proceeding; legal facts; legal facts in family relationships establishing; legal interest; preconditions of the right to have recourse to the court; conditions of the realization of the right to have recourse to the court; opening of the proceeding; pretrial proceeding; hearing of a case; judgment.

List of publications of the applicant:

1. Luzan T. L. Legal Foundations for Regulating the Establishment of a Fact of Marriage Registration / T. L. Luzan // Entrepreneurship, Economy and Law. - 2013. - No. 10. - P. 39-43;

2.

3. Luzan T. Issue of Law as the Criterion for Differentiating between Civil Jurisdiction Cases / T. Luzan // Legal Newsletter. - 2014. - No. 3. - P. 372-376;

4. Luzan T. L. General Preconditions of the Right to Apply to Court for Establishing Legal Facts in Family Relations / T. L. Luzan // Scientific Newsletter of the Uzhorod National University. Legal Edition. - 2015. - No. 33. - P. 129-135;

5. Luzan T. L. Features of the Defining of Fact to Be Proven and Evidence in the Cases of Legal Facts Establishing in Family Relationship / T. L. Luzan // Scientific Newsletter of the Kherson State University. Legal Sciences Edition. - 2015. - No. 3. - Part 1. - P. 132-136;

6. Luzan T. L. Particularities of the Pre-trial Proceedings in the Cases of Legal Facts Establishing in Family Relationship / T. L. Luzan // Law and Society. - 2016. - No. 1. - P. 72-77;

7. Luzan T. L. Judgements in the Cases of Legal Facts Establishing in Family Relationship / T. L. Luzan // Private Law and Entrepreneurship. - 2016. - No. 16. - P. 92-96;

8. Luzan T. L. Legal Regulation of Establishing the Fact of Divorce Registration / T. L. Luzan // Modern Civil Law : Materials of the 9th International Scientific Conference of Students, Postgraduates and Young Scientists. Odessa. 28 March 2014 / Under the editorship of Dr. of Legal Sciences, Prof. Y. O. Kharitonov. - Odessa : Yurydychna literatura, 2014 - P. 259-261;

9. Luzan T. L. Special Preconditions of the Right to Apply to Court in Cases for Establishing Legal Facts in Family Relations / T. L. Luzan // Legal Sciences : History, Current State and Prospects of Studies: International Science and Practice Conference. Kyiv, 15-16 May 2015. - 2 Parts. - Kyiv : Center of Legal Research, 2015. - Part 1. - P. 54-57;

10. Luzan T. L. Particularities of the Participants of the Cases of Legal Facts Establishing in Family Relationship / T. L. Luzan // Ukrainian Legislation : Collisions, Systematization Problems and Development Prospects : Ukrainian Science and Practice Conference. Kherson, 12-13 February 2016. - Kherson : «Helvetika», 2016. - P. 74-79;

11. Luzan T. L. Resolutive Part of the Decision in the Cases of Legal Facts Establishing in Family Relationship / T. L. Luzan // Particularities of the Ukrainian Legislation Development within the European Integration Processes : International Science and Practice Conference. Kharkiv, 3-4 June 2016. - 2 Parts. - Kharkiv : East Ukrainian Scientific Legal Organization, 2016. - Part 1. - P. 73-75;

12. Luzan T. L. Legal Status of the Dependant as a Participant of the Family

Relationship / T. L. Luzan // Legal Sciences : Collisions and Prospects: Ukrainian Science and Practice Conference. Zaporizhzhia, 24-25 June 2016. - Zaporizhzhia : Classical Private University, 2016. - P. 23-27.