PROTECTION OF THE STATE’S INTERESTS IN THE COMMERCIAL COURT BY THE PROSECUTOR: LEGAL FOUNDATIONS AND PROBLEMS OF LAW ENFORCEMENT

Abstract

The article carries out a comprehensive analysis of the legal acts of Ukraine, which regulate the procedure for the implementation of the representative function by the prosecutor’s office to protect the interests of the state in commercial litigation, with emphasis on new legislation in this area. The author determined that the provisions of the commercial procedural legislation in terms of the
regulation of the prosecutor’s participation in the court process do not meet the constitutional requirements for the prosecutor’s representation. Controversial issues regarding the representation of the state’s interests by the prosecutor in the commercial court are regulated by judicial practice, in particular the Commercial Cassation Court as part of the Supreme Court and the Grand
Chamber of the Supreme Court. Based on the generalization of the judicial practice of the Supreme Court, which concerns the participation of the prosecutor in commercial litigation on behalf of the state, the problems of law enforcement in this area have been identified. To solve these problems, the need to improve commercial procedural legislation was emphasized. In particular, the necessity of supplementing the Commercial Procedural Code of Ukraine with provisions that clearly establish the status and powers of the prosecutor in the commercial litigation is substantiated. Also, based on the analysis of judicial practice, it was determined that commercial courts consider the state as a party to the process when its interests require judicial protection, even if a state body or a
prosecutor is formally designated as a party. At the same time, the Commercial Procedural Code does not provide for the possibility of state participation in the commercial litigation. In order to resolve the specified legal issue at the legislative level it is proposed to legislate that the state can be a party in commercial litigation. The author also defined the prosecutor’s procedure, compliance with which is a necessary condition for the admissibility of his participation in the commercial litigation in the interests of the state. It is noted that the category of problematic issues includes determining the existence of grounds for the prosecutor’s representation of the state’s interests in the commercial court. In addition, the author proved that the presence of a significant number of evaluative concepts, the interpretation and evaluation of which is up to the court in each individual case, complicates the participation of the prosecutor in the commercial litigation.