INTRODUCTION
I. LEGAL STATUS OF THE PROSECUTOR IN CIVIL PROCEEDINGS
1.1 Status of the prosecutor in civil proceedings
II. PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEEDINGS
2.1 Other powers of the Prosecutor in civil proceedings
CONCLUSION
LITERATURE
INTRODUCTION
The Prosecutor's office in the Republic of Belarus is an independent body that supervises the implementation of laws on behalf of the state. The Constitution of the Republic of Belarus imposes on the Prosecutor General of the Republic of Belarus and his subordinate prosecutors’ supervision in the proceedings over the compliance with the law of judicial decisions on civil, criminal cases and cases of administrative offences (part 2 of article 125). In accordance with the law on the Prosecutor's office (article 26) and the new civil procedure code of the Republic of Belarus (part 1 of article 23), adopted in December 1998. Since 1 July 1999, the public Prosecutor's office also supervises compliance with the law in the execution of judicial decisions.
It is not a secret for anyone that the current participation of the prosecutor in the civil process is minimized by the consistent efforts of the legislator.
At the same time, there are certain situations when no one, except the prosecutor, can correct the situation and restore the violated rights of citizens and public entities. Unfortunately, we have to admit that the prosecutor’s defense of the violated rights of legal entities is generally out of the question.
In law, the question has become whether the Prosecutor in the proceedings of the court to exercise supervision over him. When the new code of civil procedure of the Republic of Belarus entered into force, this question was answered: the subject of supervision in civil proceedings is the legality and validity of court decisions and compliance with the law in their execution. Strengthening the judiciary, the legislator imposed restrictions on the right of the Prosecutor to initiate civil cases.
The subject of the study is the theoretical provisions and legal norms of national legislation.
The purpose of the study is to reveal the role and importance of the Prosecutor in the civil process correctly and objectively.
The objectives of the study are:
- to reveal the historical essence of the development of views on the issue of participation of the Prosecutor in the civil process;
- to determine the importance and role of the Prosecutor in the civil process;
- to analyze the legal status of the Prosecutor in civil procedural legal relations;
- to determine the range of problems associated with the definition of the legal status of the Prosecutor in civil proceedings, to solve such problems on the basis of the analysis of legal norms;
- to establish the terms of reference of the Prosecutor in civil procedural legal relations.
The object of the study is the theoretical basis developed by leading modern legal scholars of the Republic of Belarus, as well as the legal norms of existing sources of national law.
I. LEGAL STATUS OF THE PROSECUTOR IN CIVIL PROCEEDINGS
It is no secret that the Institute of Prosecutor's office in the Republic of Belarus is the heir of such legal Institute of the USSR. Our state received the system of state bodies from the Soviet government, which is currently functioning, including in the sphere of activity of the judiciary. The institution of the Prosecutor's office exists in developed democratic countries, where it performs similar functions as in the countries of the post-Soviet camp.
The history of the Prosecutor's office of the Republic of Belarus originates in tsarist Russia, where it originated at a time when the Belarusian lands were not yet part of the Russian state. Only at the end of the XVIII century, the entire system of existing at that time in Russia state bodies was successfully put into operation, including the Prosecutor's office. After that, up to the present time, the Prosecutor's office in the Republic of Belarus continuously carries out its activities, repeatedly proving the need for its functioning.
After the judicial reform of 1864, the concept of prosecutorial activity was revised and its main function transferred to the judicial sphere. The participation of the Prosecutor in the civil proceedings of that time consisted in entering the process as an "adjoining party", presenting the conclusion to the court after the competition of the parties.
As an exception in some cases, the Prosecutor acted as the "main party", competing as a plaintiff or defendant. The Prosecutor acted as the main party if the case was public and affected the interests of the state and society. The Prosecutor could enter into the process that had already begun to give an opinion on his own initiative or on the initiative of the court.
The Prosecutor is obliged "to protect equally not the rights of persons or agencies, but the very force of the law and only in the sense in which the judge in his value in the adversarial process would not have the right to make directly from himself any instructions".
Since the 1930s, the participation of the Prosecutor's office in the civil process has been carried out in pursuance of the task of supervising the legality of civil cases in the courts.
In the early 90s the concept of prosecutorial supervision has become subject to revision. Leadership of the judicial workers began to oppose the procuracy supervision over the legality of the consideration of cases in courts.
The first step towards building a democratic state based on the rule of law should be the concept of separation of powers and the creation of an independent judiciary.
However, the court cannot become independent if it is supervised by the semi-administrative body, which is the Prosecutor's office. The law of the Republic of Belarus "On the Prosecutor's office of the Republic of Belarus", adopted on 29 January in 1993, rejected the false concept of supervision of the Prosecutor's office over the legality of court proceedings.
II. PARTICIPATION OF THE PROSECUTOR IN CIVIL PROCEEDINGS
The Civil procedure code of the Republic of Belarus, which entered into force on 1 July 1999, regulated the participation of the Prosecutor in the civil process in a new way.
The current Code delineated the forms of participation of the Prosecutor: the Prosecutor either applies to the court with a claim arising from public legal relations, and has procedural rights and obligations of the plaintiff, or enters into a process initiated by other persons in order to give an opinion on the case.
Despite the various forms of participation of the Prosecutor in the proceedings before the courts of General jurisdiction, the Prosecutor is still a person involved in the case and is endowed with the rights and duties inherent in this group of participants in the proceedings.
The norms of the civil procedure code of the Republic of Belarus reveal the forms of participation of the Prosecutor in the civil process:
- the first form – the appeal of the Prosecutor to the court in defense of the rights, freedoms and legitimate interests of citizens, an indefinite range of persons or interests of the Republic of Belarus and its administrative-territorial units;
- the second form is the entry of Prosecutor in proceedings initiated on the initiative of others, and giving his opinion on affairs about eviction, restoration on work, compensation of the harm caused to life or health, and in other cases stipulated by this Code and other laws to implement the powers conferred upon it.
There are no problems with the first form of participation of the Prosecutor, because the Prosecutor submits a claim or statement of claim to the court, entering into civil procedural legal relations with the court, and further participates in the process with the rights and obligations of the plaintiff or the applicant.
The second form of participation requires a more detailed analysis.
Since the Prosecutor General's office recognizes a person involved in the case as a Prosecutor, who must participate in the proceedings, was informed of the time and place of its consideration, but did not take part in the court of first instance, it is necessary to determine the entry of the Prosecutor into the process and whether the Prosecutor has entered the case.
The court or judge must determine the entry into the case of the Prosecutor, although this is not provided for in the civil procedure code.
CONCLUSION
Participation in the proceedings is regarded as one of the forms of the exercise of the Prosecutor's office of its tasks, for the supervision of the rule of law, unity and strengthening of legality.
The citizen today is practically left alone in the fight against a well-established bureaucracy, fraud of employers, unscrupulous manufacturers, etc. Obtaining legal assistance is currently possible only for a narrow circle of persons with appropriate financial capabilities. The institution of participation of the Prosecutor in the civil process should facilitate the receipt of such assistance.
The Civil Processing Code of the Republic of Belarus has narrowed the possibilities of participation of the Prosecutor in the civil process, making it necessary to protect only certain socially significant interests – citizens, an indefinite number of people, public entities – of the Republic of Belarus and its administrative-territorial units.
The question of the status of the Prosecutor in civil proceedings is one of the most controversial in the science of civil procedural law. Relevant resolution was submitted during the drafting of the new code of civil procedure of the Republic of Belarus. It can be concluded that the Prosecutor is not a party to the process. The civil procedure law is on the way to expand the principle of dispositivity, which resulted in a certain reduction in the scope of powers of the Prosecutor. Nevertheless, the economic and social development of the modern Belarusian state does not allow minimizing the participation of the Prosecutor in the civil process.
There are two forms of participation of the Prosecutor in the civil process: the appeal of the Prosecutor to the court in defense of the rights, freedoms and legitimate interests of citizens; the entry of Prosecutor in proceedings initiated on the initiative of others, and giving his opinion on affairs about eviction, restoration on work, compensation of the harm caused to life or health, and in other cases.
The possibilities of participation of the Prosecutor in civil proceedings are considerably limited in comparison with the previous legislation.
The law links the acquisition by the Prosecutor of the status of a person involved in the case with his entry into the process to give an opinion on the case. Accordingly, the Prosecutor, who has not entered into the process, is not a person involved in the case, is not endowed with his rights and does not bear his duties.
The introduction to the process can be considered the bringing of the cassation submission, which is the most active action. However, the presence of this right is associated by the legislator with the participation of the Prosecutor in the case, and not with its potential, which follows from the notice of the presence in the proceedings of the court case, the time and place of the trial.
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3. Law of the Republic of Belarus "On Prosecutor's office of the Republic of Belarus" No. 220-Z of 08.05.2007, as amended by Law No. 7-Z of 06.01.2009 (national register of legal acts of the Republic of Belarus, 2009, No. 16, 2/1559).
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