The content of judicial representation in a civil process is made up of procedural actions, the consequences of which extend to the principal, which determines the scope of authority of the representative. Due to the stipulation of the power of attorney or the contract, the person has the right to limit the scope of the representative’s powers to commit certain procedural actions.
Therefore, the lawyer is obliged to act within the authority given to him by the client, subject to restrictions on the conduct of certain procedural actions. The list of powers or restrictions regarding the performance of certain procedural actions must be determined by the contract concluded between the lawyer and the person whose interests he represents in the relevant civil process.
The main task of the lawyer is to take all possible measures, provided by law, aimed at the protection of the violated or contested right, including through the application to court.
In this case, the legality and validity of the court decision, the promptness of the decision of a civil case depend directly on the completeness of the preparation of the materials provided to the court at the stage of appeal to the court. It is the underestimation of the significance of this stage of the process and the formal attitude towards it that delay the consideration of the case in the future and lead to unjustified decisions, which, in turn, is an obstacle to the protection of the unrecognized or contested rights or interests of the person, incurring additional costs associated with it. with further appeal against such decisions.
Detailed processing by the lawyer of the materials provided by the client facilitates the opportunity to determine the subject of the claim and the composition of the parties, the presence of basic grounds for the court, the presence or absence of basic evidence, the need to obtain new evidence, the need to take measures to enforce the lawsuit, act other to justify the position.
Already at the stage of preparation of the materials and the application to the court, the lawyer should take steps to independently obtain additional evidence by requesting information concerning the subject of the dispute from the relevant officials, enterprises, institutions and organizations. According to Art. 20 of the Law of Ukraine “On Advocacy and Advocacy”, during the performance of the lawyer’s activity, the lawyer has the right to apply to the state authorities, local self-government bodies, their officials and officials, enterprises, establishments, with the lawyer’s requests (including for obtaining copies of documents). , organizations, public associations, and individuals (with the consent of such individuals). However, it should be noted that the main causes of artificial obstacles created by officials, officials of enterprises, institutions, organizations during the receipt and consideration of requests of a lawyer, in most cases, is the abuse of such persons by their position, combined with the use of inaccurate wording of legal rules .
Acceptance by a court of its claim, complaint, statement, creates for the representative certain obligations and confers them certain procedural rights. At the same time, it should be noted that the legal representation of a lawyer includes two types of legal relations – between the lawyer and the client and between the lawyer and the court. That is why, in the course of judicial review of the case, the lawyer’s task is not only to protect the subjective rights and the interests protected by law, but also to assist the court in a comprehensive, complete and objective clarification of all the circumstances of the case.
In addition, it should be noted that although the duty to clarify to the parties to the case their rights is vested in the judge, the lawyer must inform the person he represents of his rights, the procedure for their implementation and the legal consequences of such actions. It is also important for the client to provide the lawyer with up-to-date information on the status of the case and agree with him the procedural actions, the act of which does not / may not affect the results of the case.
Procedural actions of the parties involved in the case, as well as their representatives (including attorneys), are carried out, mainly taking into account the requirements of the court. At the same time, considering that the main in substantiating the position of the parties and their procedural representatives during the trial of a civil case is to prove the falsity of the claim and objection to it, actions on the preparation of the civil case for trial may be carried out on the initiative of the procedural representatives (lawyers). be guided to determine the nature of the disputed legal relationship, the circumstances to be ascertained, to request and attach to the case file evidence, to determine the range of persons involved in case, as well as taking measures to attract such persons.
Considering all the circumstances and the course of the case, the lawyer should ask the judge to request the evidence from the persons who rejected the lawyer’s request for their voluntary extradition, to secure the evidence and claim, to appoint a forensic examination.
An additional proof of the validity of the party’s position in the case is also the conclusion of the examination, so during the appointment of judicial examination the representative should use all the list of rights granted by the CPC of Ukraine, the exercise of which may directly affect the results of the examination. In particular, submitting to the court a request for an examination by a particular expert institution or expert, providing a reasoned list of questions to be asked before the expert institution, and in case of suspicion of expert bias, to request his / her withdrawal. During the examination, the representative of the person who is a party to the civil case may give an explanation to the expert, and on its results – to get acquainted with the expert’s opinion, ask the court to order a repeated, additional, commission or comprehensive examination. The actual control over the course and the results of the examination are mandatory steps in the chain of procedural actions to be performed by a lawyer in order to achieve a positive result in a civil case.
The defendant’s lawyer in civil proceedings may use such procedural remedies as objection to a claim and a counterclaim, the right of presentation of which must be exercised before the trial of the merits.
The procedural support for the participation of lawyers in the court hearing is the timely receipt by the court of notifications of the day, place and time of the court hearing of the disputed case, as well as of the postponement of the court hearing in the absence of information that they have been served with summons.
Compulsory participation of the lawyer in court sessions and timely response to all procedural actions of the court and the parties in the case will allow to control the course of such process and to take actions aimed at protecting the client’s interests, including by appealing the procedural decisions in the case.
Appeal against appeals and decisions on appeal and cassation is an important procedural safeguard for the protection of the rights of both those involved in the case and those who did not participate in the case if the court decided on their rights and obligations. The said right may be exercised by them by filing an appropriate complaint or by attaching to the appeal of the person on whose side they were acting in the case.
Such procedural documents shall be based on the lawyer’s thorough knowledge of all the circumstances of the case, a substantiated legal assessment of the client’s position and the court’s position in the contested decision, and his or her own conclusions as to its legality.
The role of the lawyer at the stage of execution of the decision in civil case
The final stage of the civil process is the implementation of a decision in a civil case. At this stage, the issue of the possibility of voluntary execution of such a procedural document by the party in the case or the need to apply for enforcement is solved. In such a case, the lawyer is obliged to explain to the person who is the defendant in the case, the terms stipulated for voluntary execution of the decision and the consequences of the enforcement measures applied to it (in particular, the occurrence of additional costs related to the implementation of the relevant measures by public officials executive service, recovery of the debtor’s property through his arrest, seizure and enforcement).
At the stage of civil court execution, the lawyer should also inform the client about the possibility of taking measures to postpone, postpone the execution of the decision, change or establish the manner and procedure of execution of the decision by appealing to the court which issued such decision, with the relevant statement and with the client’s consent. , to implement such procedural steps.
In addition, on the instruction of a party to the litigation, the lawyer may appeal to the court if the decision, action or omission of the public enforcement officer or other official of the public enforcement service while executing a court decision in such a civil case, such person’s rights or freedoms have been violated.
The above rights and obligations of a lawyer in civil proceedings are not exhaustive and should be used in their entirety in order to achieve a result aimed at the acquisition, renewal and protection of the client’s violated interests. Implementation of procedural actions with observance of such priority principles of the lawyer’s activity as observance of lawfulness, competence and integrity, confidentiality of information (which became known through the support of civil process), inadmissibility of conflict of interests, should be the fundamental position of a professional lawyer.