Evidential activity of the court in civil and administrative proceedings: a comparative legal analysis

Abstract

The scientific article presents a comparative legal analysis of the evidentiary activity of the court in civil and administrative proceedings. Theoretical approaches in the sciences of civil procedural law and the law of administrative proceedings regarding the definition of the concept of «evidence» are outlined.
The circle of subjects of evidence in civil proceedings has been established, which include: participants in the case, procedural representatives and the court, whose functions in evidentiary activity are determined by the needs of justice. As a result of the analysis of the norms of the civil procedural law of Ukraine, a conclusion was made about the passive, as a rule, role of the court in the process of proof, in particular, in the part of collecting evidence in legal proceedings, which is determined by the operation of the principle of adversarial justice in civil proceedings. At the same time, it was emphasized that, in contrast to legal proceedings, when considering cases of a separate proceeding, the court is obliged to take measures to comprehensively, completely and objectively clarify the circumstances of the case, which indicates its «active position in clarifying the circumstances of the case.»
Subjects of evidentiary activity in administrative proceedings include the court and persons interested in resolving the case (parties; third parties; representatives of the parties and third parties). Attention is focused on the active role of the court in the process of proof in administrative proceedings (in contrast to civil proceedings), which is determined by the principle of official investigation of all circumstances in the case, which is reflected in the provisions of the Code of Administrative Proceedings of Ukraine: «The court takes measures defined by law, necessary to find out all the circumstances in the case, including the discovery and demand of evidence on its own initiative» and «The court can collect evidence on its own initiative».