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Olena MALYEYEVA,

Judge of the Commercial Court of Ivano-Frankivsk region, Deputy Chairman

THE PRINCIPLE OF OPTIONALITY IN THE COMMERCIAL PROCESS

In the article the author analyzes value of the general principles of law, including principles of commercial process, which are considered to be deter-mining factors of legal norms, indispensable attributes of legal thinking and are the ones that influence implementation of laws. The principle of optionality is one of the most important principles that is integrated in legal systems of practically all civilized countries. The principle of optionality ensures a right of parties to the dispute to exercise their procedural rights and defines them as the moving force of the proceedings. The author examines relevant provisions of the current Commercial Procedural Code (CPC) in comparison with similar provisions of the draft CPC as well as with those of other procedural codes. Both Civil Procedural Code and Code of Administrative Justice have definitions of the principle, while in the CPC it is neither defined nor recognized. For example, a lot of procedural activities include a judge as an active part of the proceedings that calls in doubt the judge’s impartiality; scope of appeal and cassation proceedings is not limited to pleadings of the parties to the dispute. One of the latest draft CPC eliminates abovementioned drawbacks and has a number of novelties concerning this principle. However, there are some controversial provisions, such as the enshrined right of a judge to determine conduct of a legal representative as the one that conflicts with the interests of the represented person, undefined scope of the proceedings enforce the first instance court. The author concludes that the present principle, including its abri-gements, should be both enshrined in the national legislation in a due manner and strictly observed throughout the commercial proceedings as an indispensable component of rule of law.

Key words: principle, optionality, commercial proceedings, procedural rights of parties to the dispute.

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