JUSTICE IN COMMERCIAL LITIGATION: A DECLARATIVE DEFINITION OR HAVE PRACTICAL SIGNIFICANCE?

Abstract

The article is devoted to revealing the concept of “justice” in commercial litigation. To date, there is no comprehensive scientific study on the issue of justice in commercial litigation, which would answer the question – in which cases, when resolving disputes, the court can directly refer to the definition and essence of the justice. This determines the relevance and perspective of the chosen research topic. Therefore, the author aims to define the essence of such a category as justice, to single out the aspects of justice in commercial litigation and to determine the scope of its direct application by commercial courts. Having analyzed the legislation and judicial practice, the author comes to the conclusion that the fairness of dispute resolution is part of the task of commercial litigation. The procedural aspect of justice is implemented in the principles (fundamentals) of this type of justice and in procedural norms. At the same time, ignoring procedural norms with reference to justice – leads to arbitrariness and unlimited discretion of the court and turns the judicial process into a disorderly movement. After all, the justice of the litigation is mostly implemented in specific procedural norms. Therefore, a direct appeal to the definition and essence of justice, and the direct application of this fundamental principle of litigation (in the procedural aspect) – in the opinion of the author, is allowed in three cases: 1) in the order of application of analogy – if there is no rule regulating procedural legal relations; 2) as a criterion for making procedural decisions (committing procedural actions) in conditions where the procedural norm allows judicial discretion; 3) to avoid unnecessary formalism – if the literal observance of the procedural rule leads to a violation of the task and the basic principles of commercial litigation.