SUMMARY

Novikova N.A. Evidence of witnesses in the civil process. - Qualifying scientific work on the manuscript.

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

The dissertation research, the theoretical and applied research of witness testimony in the civil process of Ukraine was conducted for the first time. Historical and legal material has shown that witness testimony is one of the longest means of proof used in the course of consideration and resolution of court cases. The prevalence of this docking tool is due to its efficiency, visibility and accessibility in use. In the early days, the witness, besides the usual function of giving testimony, also advised a judge on local customs, especially in resolving land disputes, and by his oath solved the fate of the case. Such functions for the witness were characteristic of the formal evaluation of his testimony. However, from the second floor. Nineteenth century. the role of the witness is limited to the provision of information on the circumstances of the civil case, and the assessment of his testimony, according to internal convictions, significantly reduced the use of witness testimony in civil cases.

The testimony of a witness, as well as any judicial evidence in a civil proceeding, consists of the content and procedural form. The content of the testimony is evidence based on the circumstances of the case, and the procedural form is associated with the material carrier of evidence, which the witness himself advocates and the procedure for his involvement in a civil case. Therefore, the witness, being another participant in the trial, in terms of evidence, serves as the source for fixing testimony.

The essence of the witness is revealed through a number of features that are inherent to him. In particular, only an individualized individual can be a witness; the witness must have such physical and mental development that enables him to correctly perceive the circumstances and / or to speak about them; the witness must have the information necessary for the decision of the case; the witness must not have a legal interest in the outcome of the proceedings; the witness perceives the circumstances of the case directly or indirectly; the witness of the circumstances of the case is not connected with its consideration; Involvement of a person as a witness in a civil case on the basis of a court order. Since the witness serves as the source for fixing testimony, the testimony of a witness characterizes the testimony of a witness, but only from the point of view of the material carrier of this judicial evidence. That is why the evidence of a witness and evidence of testimony are substantially interconnected.

The civil procedural legal capacity and civil procedural capacity of a witness are analyzed. Despite the fact that the witness acts solely by an individual, his legal capacity and ability to act arise simultaneously. The civil legal capacity of a witness depends on the fact that he has information on the circumstances of the civil case, and civil procedural capacity - from the psychophysical level of development and the absence of a prohibition on interrogation of a person.

Characterized by the procedural and legal status of the witness. Since the witness serves as the source of fixing evidence, all his procedural rights and obligations relate to the stages of the use of court evidence during judicial evidence. It is these stages that are the criterion for the division of rights and responsibilities of the witness to the rights and obliques that involve the involvement of a witness in a civil case; rights and obligations related to the investigation of witness testimony in a case; rights and obligations related to the assessment of witness testimony in a case.

The work reveals signs of the contents of witness testimony. In addition to the procedural form, the meaning is important among the structural elements of the testimony of the witness. The contents of the testimony of a witness are characterized by such signs as testimony of the witness must always be associated with a known source; testimony of a witness must be brought before a court; testimony of a witness should not violate any of his subjective rights and interests; testimony is given orally. Thus, the signs of the witness and signs of the contents of the testimony of the witness, serve as a system of signs that characterizes such a means of proving in the civil process as testimony. But in addition to these indications, the testimony of a witness is characterized by common features that are inherent in all judicial evidence in general, such as a sign of affiliation and a sign of the admissibility of witness testimony. Signs of affiliation and admissibility are general with regard to the special features of witness testimony.

The content of testimony in a civil process is divided into two parts: general and special. In the general part, the witness provides the court with information on the facts establishing his person, the relationship with the parties and the case, and in the special case - information on the circumstances of the case. The information of both parts of the testimony is evidentiary, and therefore the warning about the criminal responsibility of the witness must go before the witness begins to express information in the general part of the witness's testimony.

In the work, much attention was paid to the classification of witness testimony by several criteria that made it possible to see the peculiarity of using a particular type of witness testimony in the civil process. By age, the witness's testimony is divided into testimony of an adult and minor or minor witness. It is proposed to consolidate in the current civil procedural legislation of Ukraine the legal representative for juvenile and minor witnesses among the group of «"other participants in the civil process» who will be responsible for the implementation of the rights and duties of such witnesses, connected with appearance before the court.

The essence of the witness testimony is revealed by distinguishing witnesses from other evidence in the civil process. It is criticized for attributing an explanation by a party, third parties and their representatives to a kind of witness testimony. Unlike the testimony of witnesses, the explanations of the parties, third parties and their representatives are deduced from the «right of persons to be heard in court», provided by legally interested persons who are parties to material relations, and therefore they are more informative, can be provided through a representative in oral or writing without the benefit of each other. The expert's conclusion, unlike the testimony of the witness, is informative not because of personal observation, but in connection with a specially conducted research. In addition, the expert makes a conclusion (conclusion), as a rule, in writing, and the witness - only the judgment, usually in oral form. The expert can be replaced, and the witness - no.

In a qualified scientific work, three stages of the use of witness testimony in a civil process are described in detail: involvement, research and evaluation.

Involvement of witness testimony in a case depends on their form: at verbal - the witness is summoned in court, and in writing - to the materials of the case involved protocols interrogating the witness. Regardless of the form of taking the witness's testimony in a civil case, they may appear only with judicial control. The paper proposes, at the stage of involving the witness testimony at the preparatory bar and the first court session, to provide as the main written form for the testimony of witnesses and argued the superiority of the written form of taking testimony before the oral testimony.

The paper proposes the structure of such a procedural document as witness testimony, analyzes its details and determines the procedure for lodging it with the court. Written testimony of the witness should select the party that is interested in them. The certificate of the signature of the witness on the document must be carried out by a notary or other person who can certify the power of attorney to conduct a case in court.

Involving witness testimony in a civil process, one should bear in mind the immunity of the witness. The thesis is argued that under the immunity of a witness one should understand not only the right to refuse to testify, but also the prohibition of interrogation of certain persons. In order to generalize the issue, it is proposed in the CPC of Ukraine to consolidate the procedure for granting permission for the disclosure of the witness provided to him information, the observance of which will serve as a condition for the call and questioning of witnesses. The paper analyzes the types of immunity of witnesses in the civil process according to various criteria.

It is proposed to legally establish the right of the parties to waive the summons of witnesses, taking into account the position of the opposing party, but not the court, in addition to the cases of a separate proceeding.

The paper examines the preliminary, final and control study of witness testimony. The general rules of the final study of testimony of witnesses are systematized and analyzed: compliance with the principle of competition in the civil process; conducting such a study in the courtroom; study of testimony of witnesses in a certain sequence; examination of witness testimony; must be comprehensive, complete, objective and direct examination of witness testimony.

The dissertation reveals ways of studying testimony of witnesses and analyzes their order. Proceeding from the fact that as the main form of involving witnesses is offered to choose a written one, it is also proposed as the main method of examining witness testimony to select their announcement in the courtroom.

In order to improve the procedure for examining testimony of a witness, it is proposed to prohibit the informal communication of parties, their representatives or other participants in the case with uninvited witnesses during the judicial session; the oath of the witness is formulated taking into account the religious component, except in the case of witnesses atheist.

The paper analyzes types of questioning of a witness: direct, cross and "chess". The peculiarity of interrogation of juvenile and minor witnesses is determined. The specifics of recording evidence of witnesses during their research are revealed.

The evaluation of the testimony of a witness completes the process of their use in a civil case. The paper examines the general and special criteria for assessing witness testimony. The general criteria for assessing testimony of witnesses are reduced to the criterion of their affiliation, admissibility, reliability, sufficiency and the reciprocal relationship between witness testimony and other evidence in the case. In the process of analyzing the criterion of reliability, the various ways of ensuring the veracity of witness testimony are organized and characterized. The assessment of the witnesses' testimony is also disclosed through the established rules for their assessment: an assessment of the testimony of witnesses based on internal convictions, the absence of a predetermined force in the testimony of witnesses, and the motivation for assessing testimony. An analysis of judicial practice shows that judges often do not fulfill the requirement for motivation in assessing testimony.

Key words: civil process; witness; testimony; immunity of the witness; use of witness testimony.

List of publications of the applicant:

1. Novikova N.A. Concepts and signs of a witness in a civil process. Law and Society. 2016. No. 6. P. 41-48.

2. Novikova N.A. Evidence of a witness in civil cases at the time of Kievan Rus. Scientific herald of Uzhgorod National University. The series «Right». 2016. No. 41. Р. 121-124.

3. Novikova N.A. Special indications of a witness in a civil proceeding. Law and Life (Republic of Moldova). 2017. No. 4. P. 100-104.

4. Novikova N.A. The difference between testimony and personal evidence in a civil process. Comparative and analytical right. 2017. No. 6. P. 99-102.

5. Novikova N.A. General criteria for assessing testimony in a civil process. Scientific Herald of Kherson State University. Series «Legal Sciences». 2017. Issue 3. Volume 1. P. 106-109.

6. Novikova N.A. Involvement of testimony in a civil case. Scientific herald of Uzhgorod National University. The series «Right». 2017. Issue 45. Volume. 1. Р. 87-90.

7. Novikova N.A. Oral and written evidence of a witness in a civil process. Private Law and Entrepreneurship. Collection of scientific works. Whip 17. 2017 Р. 82-85.

8. Novikova N.A. Civil-procedural status of a witness. Evidence and evidence in certain categories of civil cases: a collection of scientific works / V.I. Bobrik et al. ; per community Ed. O.D. Krupchana Kyiv: Research Institute of Private Law and Entrepreneurship named after Academician FG Burchak NPRrN Ukraine, 2016. Р. 27-49.

9. Novikova N.A. Civil legal capacity and capacity of a witness in a civil process. Topical issues of the development of law and legislation: scientific discussions: Materials of the international scientific and practical conference (Lviv, December 16­17, 2016). In 2 parts. Lviv: Western Ukrainian Center «Center for Legal Initiatives», 2016. Part 1. P. 123-127.

10. Novikova N.A. Indications of minor, juvenile and adult witnesses in the civil process. Domestic jurisprudence in modern conditions: materials of the international scientific and practical conference (Kharkiv, March 17-18, 2017). Kharkiv: NGO «Association of Postgraduate Lawyers», 2017. P. 62-66.

11. Novikova N.A. The difference between the testimony of witnesses from written evidence in the civil process. Modern Problems of the Legal System and State Building in Ukraine: Materials of the International Scientific and Practical Conference (Zaporozhye, March 24-25, 2017). Zaporozhye: Zaporizhzhya city NGO «Truth», 2017. Р. 30-33.

12. Novikova N.A. Fixing the examination of testimony witnesses in the civil process. Topical Issues in the Theory and Practice of Application of Modern Domestic and International Law: International Scientific and Practical Conference (Kyiv, June 9­10, 2017). Kiev. Center for Legal Research, 2017. Р. 37-40.

13. Novikova N.A. General rules for the final examination of witness testimony

in a civil proceeding. Contemporary trends in the legal science of Ukraine. Materials of the III International Scientific and Practical Conference (Kyiv, June 29-30, 2017). Kherson: Publishing House «Helvetica», 2017. Р. 26-30.