Resolving disputes in court is always a long process, and sometimes costly. In addition, disputes are resolved in court, especially civil law carries a great burden on the judicial system because of their number and insignificance of subject matter. But each procedure regulated by law and must occur in the appropriate sequence, time certainty. Аlong refer to the court especially in case of occurring of dispute of property character, does not need such analysis of legislation or application of judicial practice or other exceptional facilities of permission of such dispute. In fact, such disputes can be resolved outside of court proceedings by applying the tools of contractual relations, which has received practical expression in the so-called conciliation procedure. Its essence is to achieve a balance of interests through finding different options out. Procedure of reconciliation is not mandatory as the court’s decision but the parties agree and undertake mutual obligations to comply with. Realizing the importance of resolving the dispute in the conciliation procedure appropriate level of formality, a tool legislator secured a settlement agreement, which in essence is actually the result of the resolution of any civil matter on the basis of balancing its interests of the parties to the dispute. Consequently, the analysis of the nature, subject and object of the settlement agreement requires proper and thorough research to increase the efficacy level of this mechanism for the resolution of civil conflicts. The trial of any civil law dispute is an important step to achieve or restore balance to social relations. But it should be understood that it is not the only one, although it is recognized as official and legitimate means of resolving civil conflicts. Belousov based on the results of the analysis carried out by the European Commission for the efficiency of justice in different European countries the use of alternative dispute resolution methods is widespread. The researcher explains the nature of this phenomenon is due to the fact that these procedures contribute to the efficiency and quality of the judicial system by providing citizens alternatives to standard court proceedings. The most common among them are: mediation, conciliation and arbitration. It should immediately be noted that one of the most effective alternatives to court proceedings is a process of mediation or conciliation. Unfortunately in Ukraine mediation procedure does not apply to the way in which it contributed the most to solving criminal procedural disputes. Although it should be noted that today the Verkhovna Rada of Ukraine submitted a relevant draft law on mediation, under which the procedure is defined as structured talks in which the parties are trying their own, on a voluntary basis to agree on a third independent party – the mediator . Thus, the essence of mediation is that within this procedure always involved the judge who gives advice, makes decisions and / or claims procedures. Arbitration is procedure of decision of spores at participation of non-state arbiters (referendaries) the decision of that is obligatory for implementation to parties of dispute. Reconciliation is a procedural result that may be achieved in civil proceedings due to administrative actions of one or both parties in the form of a settlement agreement, waiver of a claim, recognition of claim. In some cases, reconciliation may take place in the form of submission by the claimant of the statement on leaving the claim without consideration on the basis of paragraph 5 of part 1 of article 207 of the Civil procedural code of Ukraine (further – the GPK of Ukraine). The settlement agreement is an agreement of the parties on the terms of the resolution of litigation on reasonable conditions . So the legal nature of reconciliation is the alternative resolution of civil conflict by means of a procedural nature, but outside the direct involvement of judges, the role of which is to legitimize the outcome of conciliation by an appropriate procedural decision. In fact, it comes down to reducing the trial, if true reconciliation is at the stage of execution. Although the formal implementation procedure also applies to one of the stages of the judgment is the final part of the resolution of civil disputes. L.H Lichman solving action in the short term can have negative consequences. First, the conflict between the plaintiff and the defendant making a judgment not only stops, but rather worse. Second, before they can expect continuing dispute in the courts of appeal and cassation and enforcement stage, that is new material, moral, psychological, psychiatric, time and other costs. To reduce these negative effects would be appropriate to use the experience of other countries in conciliation (mediation procedure) is in civil proceedings . Tsybulyak-Kustevych speaking about the benefits of reconciliation to the powerful “force” decision by a court, when based on long-intensive procedures determined by the “winner” and “loser” refers to the terms of Nyefyedyevoyi regarding that reconciliation allows the parties to achieve fairness subjective, because the real facts of the case are known only to them, unlike the Court, are not bound by the claims.  Therefore, securing on the legislative level the procedure of conciliation, the legislator tries to optimize the system of social relations and processes of rights and interests of persons in judicial proceedings. It is the emphasis on the fact that reconciliation has been going through a judicial process in civil cases is key from the point of view of its legal effects and procedure implementation. One of the cases the practical implementation of conciliation are amicable agreement. Thus, in accordance with Art. 175 CPC of Ukraine settlement agreement entered into by the parties to resolve the matter on the basis of mutual concessions and relate only to the rights and obligations of the parties and the subject of the claim. The parties can conclude the agreement and to inform the court by joint statement. If the settlement agreement or the message it contained addressed to the court a written statement of the parties, this statement joins the case. Before the court decision in connection with the parties entering into a settlement agreement, the court shall explain to the parties the consequences of such decisions, checks limited to whether the representative parties have expressed the intention to commit these actions, the authority of the same. If the parties conclude a settlement agreement the court decides to close the proceedings. Closing the proceedings, the court at the request of the parties may enact a decree on recognition of the settlement agreement. If the settlement agreement is contrary to law or violate the rights, freedoms or interests of others, the court decides to refuse to recognize the settlement agreement and the trial continues. The Court does not accept the settlement agreement in the case in which one of the parties represented by a legal representative if his actions are contrary to the interests of the person he represents.  The Institute of the settlement agreement is widely used in judicial practice of many foreign countries for the peaceful settlement of the conflict. In the literature there are the following foreign models procedures to reconciliation of legal disputes :
As for practice, it should pay attention to the fact that effective mechanism of implementation by the parties of the right to conclude a settlement agreement, the impact of court with the objective of reconciliation is not offered neither legislation nor judicial practice. Analyzing in this context the jurisprudence of L.G leachman notes that in accordance with clause 3 of the Resolution of Plenum of the Supreme Court of Ukraine “On application of norms of civil procedural law governing the proceedings pre-trial proceedings №5 dated 12.06.2009”, with the aim of resolving the dispute before trial courts must ascertain: whether the parties are willing to conclude the agreement. The Plenum pointed out that the courts should take effective measures to reconcile the parties and settle the dispute pre-trial, while maintaining objectivity and impartiality. As a consequence, is an extremely small percentage of cases that ends with the settlement agreement. In Ukraine, judicial statistics are not gathered, as confirmed by order of State judicial administration of Ukraine dated 05.06.2006 No. 55 “On approval of forms of reporting on consideration of appeals and local (except economic) courts of judicial cases and materials and Instructions for their completion and submission”. This “helps” a different understanding and interpretation of norms of the Civil procedural code of Ukraine and law of Ukraine “On enforcement proceedings” on the enforceability of the settlement agreement recognized by the court. Although the settlement agreement recognized the title document on the basis of which, for example, is made state registration of ownership rights on real estate . It is clear that the improvement of the mechanism of practical application of the settlement agreement, as a tool of reconciliation in the context of optimization and rationalization of the decisions of civil conflicts are in the plane of the theoretical-methodological substantiation of the nature of such transaction. No doubt that the settlement agreement, as a regulator of public relations covers five aspects of the dispute resolution process on the merits:
As to the nature of the settlement agreement, it should refer to point V.V Masyuk., on the basis of detailed analysis of the theoretical material identifies three groups of approaches to understanding its essence of the agreement. The first approach is to ensure that the settlement agreement consider the agreement, which has substantive civil law nature. The second approach comes from the fact that the settlement agreement is a procedural agreement, or remedial action. The third point of view is that the essence of the settlement agreement is that the legal nature of the settlement agreement is complex in nature – substantive and procedural, or private and public .
Confirmation of this can be found in particular in the practice of American justice and justice in the UK . However, there is a view, in particular in the work Dzh. Barkai and E. CNT regarding the fact that the mediation Institute as a whole should go beyond the procedural settlement of disputes, and to do “to procedural” in order to significantly reduce the burden on the judicial system in cases when a positive outcome is possible to achieve already at the stage of negotiations and the establishment of the nature of the contradictions arising between the parties . In this context, it is interesting point of view D. L. Davydenko, who relies in his research on the results of work K. Anokhin regarding the settlement agreement can be considered as a judicial transaction and non-judicial tool for resolving civil conflict and the principles of the full civil contract [5; 1]. Consequently, the question is whether the settlement agreement is a civil transaction, or is this a separate procedural act, the peculiarity and difference from court decisions is that it is an element of optionality without establishing the truth of the case, and is characterized only by achieving a balance of interests, which satisfies both parties and is not contrary to the law. On this occasion, D. V. sokolyanskiy determines the number of differences settlement agreement from a civil :
Proving point of view on civil-legal nature of the settlement agreement as a specific contract you should refer to the study of V. V. Masyuk, based on the position of the High specialized court of Ukraine on consideration of civil and criminal cases set forth in the letter dated 05.12.2011 notes that the court’s conclusion that the settlement agreement approved by court may not be binding in the civil law sense, since its conclusion, confirmation and execution is regulated by the provisions of procedural law and law of Ukraine “On enforcement proceedings”, so there are no grounds for application of article 625 of civil code of Ukraine is unfounded . The settlement agreement is characterized by the fact that its members have specific legal status: the defendant and the plaintiff. That is, a set of rights and obligations conferred upon the persons concerned by the CCP is complemented by a set of rights that are characteristic of the parties of civil-law contracts. It should be noted that the judge is not a party to this agreement, moreover, he does not apply even to others whose interests of the parties to such transaction may relate. But he legitimitely by appropriate action under the civil process. In our opinion, this should be a mandatory condition for the validity of the settlement agreement, therefore, by part 5 of article 175 of the CCP should be amended as follows. “5. The court makes a separate resolution about recognition of settlement agreement. If the terms of the settlement agreement contradict the law or violate the rights, freedoms or interests of other persons, the court decides the definition about refusal in recognition of the settlement agreement and continues trial”. From this we can conclude that the object of the settlement agreement are public relations concerning property or other objects of civil law relations. But the object of the settlement agreement is the procedure for resolving civil conflict, which may embody as the order of those or other disputed rights of parties to such transaction and the peculiarity of the legal regime on the use of a thing, which is the subject of a civil conflict. While the settlement agreement may be perpetual, but in General, the effect continues as long as there is subject virtualnogo conflict. Therefore, it is possible to agree with D.V.Sokolyansky, based in his research on point of view Vaskovsky notes that the settlement agreement is essentially a civil law, therefore, the conditions of their validity are determined by the substantive law, and only form the conclusion and procedural implications should be determined by the procedural rules. Thus, the settlement agreement is a negotiated bilateral action of the parties, civil cases (plaintiff and defendant), aimed at acquisition, changing or termination of civil rights and obligations concerning the dispute. It is evident that in an individual and the production of conclusion of an amicable agreement is impossible. But it should be borne in mind that the conclusion of the settlement agreement as the agreement of the two parties aimed at establishment, change or termination of civil rights and obligations in a civil case, you must comply with all statutory conditions of validity of transactions (article 203 CC of Ukraine) . As for the conclusion of a settlement agreement, according to A.S.Tsybulyak-Kostevich the steps involved in the process aimed at the peaceful settlement of the dispute should be concentrated at the stage of preparing the case for pre-trial proceedings, since this stage has the greatest potential for reconciliation. According to part 1 of article 130 code of civil procedure of Ukraine the preliminary hearing is held to determine the possibility of resolving the dispute before trial. Giving a special role primerniy procedures, in particular at the stage of preparing the case for trial, the participation of the parties in such procedures should be to raise in rank of their procedural obligations, the violation of which provide for the liability, and evasion from participation in reconciliatory procedures be considered as opposition to the correct and timely consideration and resolution of the case . But O.G.Bortnik noted that the dispute settlement procedure regardless of the stage at which it occurs may require the parties to discuss the conditions, which is not always possible to do at the preliminary hearing or during trial. Therefore, it seems appropriate, if the courts are to provide parties for that certain time, declaring a break in the hearing. But despite the fact that in the national legislation of alternative means of dispute resolution are just beginning to develop, the current CPC of Ukraine, in comparison with the previous code of civil procedure, in more detail the procedure for the conclusion and recognition of settlement agreement, formulated the concept of the settlement agreement, set clear order to invalidate it by an appeal against the relevant decision. However, certain important judicial practice issues remained unaddressed: the possibility of disputes arising on the basis of a settlement agreement between the parties, the ability to change the method or order of execution of the settlement agreement. In the event of a change of the settlement agreement without a corresponding recognition by the court of these changes, the settlement agreement will have the respective procedural form that would provide the ability to execute a settlement agreement in enforcing the order . Considering the settlement agreement exactly (and only) as a basis for termination of the proceedings, the parties do not consider the civil legal consequences of its conclusion. And as a result formulated by the parties, contractual terms (defining the rights and obligations of the parties), the components of the settlement agreement, suffer from ambiguity and vagueness. These shortcomings hinder the approval of settlement agreements by the court, and in cases where a settlement agreement is still approved by the court, – their execution. The result often failure side (or both sides) from the execution of the settlement agreement and return to the previous relations, discontinuing or modifying the settlement agreement. Moreover, often such a return means re-opening a dispute that entails the filing of a claim identical to the claim, the production of which was terminated in connection with the conclusion of a settlement agreement, etc . Referring to the CCP you can see that the legislator has envisaged the possibility of amicable agreements at all stages of proceedings in the courts, that is, after going to court (table. 1). Table 1. Features of the settlement agreement at various stages of the civil process*
|Procedural stage||St. GPK Ukraine||Strong-willed time of settlement agreement||The consequences of a settlement agreement for court proceedings|
|Proceedings to trial||St.130||the court shall ascertain the wishes of the parties to conclude the agreement||The closure of the proceedings|
|Trial||St.175||the parties themselves are willing|
|Appeal proceedings||St.306||the parties themselves are willing, regardless of who is plaintiff and defendant||The rejection of a claim|
|The execution of the court decision||St.372||the court has the right to inspect and to accept settlement agreement closing of Executive production|
*processed by the author according to the analysis of norms of the CPC of Ukraine Thus, you can see that at different stages of civil process initiative regarding the settlement agreement, its consequences and the role of the courts is not homogeneous, differing primarily by different degree of inclusion of the court in the process of concluding a settlement agreement. But if we take into account the importance of a settlement agreement in the context of the us analysis, and most importantly, considering the aspects on which the settlement agreement has a significant impact, particularly in light of increasing levels of efficiency and effectiveness of the judicial system, it is advisable to legislate the compulsory clarification by the court regarding the possibility of its conclusion by the parties. An exception may be only a stage of Executive production, in which the state Executive office will charge 10% of the Executive fee for the procedure of forced execution of court decisions, so the question of whether initiatives from Executive services regarding the application of the conciliation procedure between the parties is extremely debatable. So, seems appropriate to make the following changes to the civil procedure code of Ukraine, in particular: article 175 Supplement to part 11, article 306 to Supplement part 2, p. 334 Supplement part 2, the contents of which are identical: “To resolve the dispute by way of conciliation of the parties, the court finds: it is not whether the plaintiff refuses from the claim, whether the parties are willing to enter into a settlement agreement.” In addition, given the peculiarity of the settlement agreement as a separate kind of civil transaction, it is advisable to offer an alternative duty of the court to discontinue the proceedings in the case of the conclusion on stay of proceedings. The logic of such proposals comes from the fact that the parties may not perform obligations under the agreement, and in this case, the second party again gets the right to go to court. However, in this case the process of resolving civil conflict will start from the beginning, in particular this involves the payment of court fees a second time. It is therefore advisable in the case of a settlement agreement, the proceedings to stop, and in case of her failure or failure in full – to restore and continue. Given this, it is considered appropriate for part 4. p. 175 to read as follows: “if the parties concluded the settlement agreement, the court shall issue a ruling on suspension of the proceedings until the full execution of the settlement agreement”. So, seems appropriate to make the following changes to the civil procedure code of Ukraine, in particular: article 175 Supplement to part 11, article 306 to Supplement part 2, p. 334 Supplement part 2, the contents of which are identical: “To resolve the dispute by way of conciliation of the parties, the court finds: it is not whether the plaintiff refuses from the claim, whether the parties are willing to enter into a settlement agreement.” In addition, given the peculiarity of the settlement agreement as a separate kind of civil transaction, it is advisable to offer an alternative duty of the court to discontinue the proceedings in the case of the conclusion on stay of proceedings. The logic of such proposals comes from the fact that the parties may not perform obligations under the agreement, and in this case, the second party again gets the right to go to court. However, in this case the process of resolving civil conflict will start from the beginning, in particular this involves the payment of court fees a second time. It is therefore advisable in the case of a settlement agreement, the proceedings to stop, and in case of her failure or failure in full – to restore and continue. Given this, it is considered appropriate for part 4. p. 175 to read as follows: “if the parties concluded the settlement agreement, the court shall issue a ruling on suspension of the proceedings until the full execution of the settlement agreement”. Summing up, it should be noted that the settlement agreement is a special kind of civil commitment, which is in the form of the transaction, because the essential content of the model of relations between the plaintiff and the defendant at its conclusion is fully consistent with the norms of the civil code of Ukraine, regulating the content, procedure and the legal status of the parties to the civil contract. 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