COMPETITIVENESS AND DISCRETION IN THE MECHANISM OF IMPLEMENTATION OF THE RIGHT OF THE PARTIES TO CONCILIATION IN THE COURT PROCEEDINGS

Abstract

The article examines various types of conciliation procedures regarding the impact of competition and discretion on their implementation to the court proceedings. The Study of conciliation procedures allows to identify certain components of the mechanism that are characteristic of any court proceedings. In our opinion, the most striking manifestations in the mechanism of realization of the parties’ right to conciliation in the court proceedings are discretion and competition. Competition during the implementation of conciliation procedures means always an active position of the parties, which is expressed in the form of negotiations between them and later – in drafting of the agreed terms as a settlement agreement to be submitted for approval by the commercial court. It is proven that since the judge holds a central position in the process, discretion is a mandatory component in the mechanism of implementation of all conciliation procedures in the court proceedings. The court’s main objective is to prevent abuses in the process of concluding a settlement agreement and the infringement of the interests of the parties as well as other persons. Thus, when competing parties have drafted the terms of a settlement agreement, the judge must, nevertheless, use discretion when making a decision on the issue to approve the terms of such a settlement agreement or refuse to approve it. The above appears to be justified, since the construction of "competition-dispositiveness" allows to maximally realize the rights of the participants in the case and at the same time maximally ensure the guarantees established by the procedural law for the protection of their legal rights and interests. Therefore, judicial discretion is an important element of the procedure for exercising the right of the parties to conciliation in the court proceedings. Conciliation procedures in court proceedings, like other actions in the course of proceedings, require research and evaluation by the judge as well as rendering of a decision on the case, which actually confirms the legality of the claims of the participants in the case. Taking into account the above, it was concluded that competition and discretion play a significant and even decisive role in the mechanism of realization of the parties’ right to reconciliation. In their absence or in the absence of at least one of these elements, it is impossible to realize the specified right.