Dispositive principle in civil proceedings: the evolution of views and modern understanding

Abstract

The research of the historical and legal context of dispositive principle in civil proceedings is given. It is noted that certain elements of dispositiveness originate from the ancient Kyiv Rus litigation process. The strengthening of government, publicity, the long-standing predominance of the investigative model of justice, frequent changes in legislation and its contradictions led to the fact that the ideas of dispositive principle, which express freedom of choice, received the greatest legislative embodiment only in the Civil Procedure Statutes of 1864 and 1895. It was during this period that the domestic science of justice began to take its formulation, which was infl uenced by Western European procedural schools and traditions. Thus, domestic scholars have developed the doctrine of recognizing dispositiveness as an independent, separate from adversarial, principle of justice. Changes in the state system led to attempts to fi ll the dispositive principle in new content, which could be diff erent from the classical theory of order. This justifi ed and refl ected the dual basis of dispositiveness in the Soviet judiciary that was established in several codifi cations of legislation and which was about the initiative of the parties in combination with the activity of the court, prosecutor’s offi ce and other state and public organizations. Analysing the legacy of procedural scholars and the approaches proposed today to understand the phenomenon which are considering, it should be noted the growing trend back to pre-revolutionary theory of order. At the same time, there are still some lacks its shortcomings in terms of terminology and content. The author’s view and the concept of dispositive principle formulated in the article are based on the following features: the ability of interested person to choose diff erent actions, the willpower of the person on whom the origin and movement of the process depend; interest, which is the main factor in choosing behaviour; administrative powers of the parties; restriction of willpower, interest and behaviour if it is necessary. Key words: civil proceedings, dispositive principle, administrative rights of the parties, adversarial proceedings, judicial reform.