Науково-практична Інтернет-конференція 15.12.2011 - Секція №1
During the recent years in Ukraine the issue of restoring Ukrainians’ reliance in judicial authority and reforming judicial system is being raised. The possibility of creating magistrate courts has been considered as a constituent of the present reform. A draft law “On communities’ magistrate courts” (register No. 3291 from October 10, 2008) was subjected to consideration to the Verkhovna Rada (Supreme Council) by Parliament members A. Matvienko and O. Bondar; nevertheless, based on the results of the first reading consideration it was recommitted for further improvement [1]. 
Parliament members’ remarks concerned the drawbacks of the very law. Though there appear other issues related to the appropriateness of such an innovation. Mainly, is there any need to set up magistrate courts? Are these courts intrinsic to our Ukrainian legal tradition? Will such courts be able to work efficiently and enjoy confidence among the population? Can it happen that due to the introduction of magistrate courts in Ukrainian reality they will be rejected by the society and country as an “irrelevant body”, as something alien and unacceptable for our legal system? 
Answers to these questions can be provided by the historical and judicial investigation of features of the Ukrainian legal tradition in the sphere of amicable judicial procedure. 
The introduction of first magistrate courts on Ukrainian land is often associated with the judicial reform of 1864 which was implemented by the Russian Empire government. According to this reform, feudal courts were dissolved and two layers of legal agencies were established: courts with deemsters (magistrate courts and conventions of magistrate courts) and courts with appointed judges (district courts and appellate courts). 
Magistrate courts appeared in cities and districts. On the Left Bank Ukraine judges were elected by the corresponding local government administration, namely county assembly and city council. On the Right Bank Ukraine lay magistrates were not elected but appointed by the government. 
Lay magistrates had such powers as minor criminal cases (on breaching of public order; personal offence and beating; fraud and thefts that trespassed up to 300 karbovanets) [2, с.449], certain categories of civil matters (regarding personal commitments and estate property contracts with a suit price no more than 500 karbovanets; reimbursement of losses and damages, amount of which was less than 500 karbovanets; personal abuses; restoration of an infringed right of possession if less than six months have passed after the time of this infringement etc). Besides, a lay magistrate was eligible to consider any disputes on the request of parties [2, с.531].
In addition to district lay magistrates, who received payment for the work, positions of honorable lay magistrates, which did not have their specific district, were introduced. Such magistrates accomplished legal procedures on a grant basis and, due to this, such position was occupied mainly by well-to-do people – district and province nobles, prominent landowners, retired military and civil officials [2, с.449-453]. In 1889 the process of lay magistrates’ dissolution started. Restoration of this institution took place only in 1912 but after 1917 it was completely eliminated. 
Activity of magistrate courts on the Ukrainian land, however, cannot be connected only with a judicial reform of 1864. Long before the introduction of this reform on the Ukrainian land, there existed courts of customary law (including shock courts) that conducted legal procedures. 
Courts of customary law actively implemented reconciliations since their main task was not to punish a guilty person but to reconcile both parties. A young Lviv legal scholar M. Bedriy indicates that the conciliatory nature as a characteristic of shock court and legal procedure corresponds to the present justice ideals. Reconciliation of parties was used by shock courts in civil as well as in criminal cases. Hereby Ukrainian shock legal procedure permitted reconciliation of parties even when a convicted person was exposed to death penalty. A perpetrator could make peace with a victim or his/her family and pay a certain amount of money [3, с.34].
Similar to shock courts were assembly courts of the Wallachian customary law which functioned in mountain regions of Galicia. Two or three times a year customary law villages, which belonged to one rural district (so called “country”), came to an “assembly”. During this assembly they solved diverse public problems, organized tax collection and carried out legal proceedings. 
Judges were elected by peasants at the beginning of a judicial sitting. Assembly courts, similarly to shock courts, considered and solved legal cases dealing with the population of a certain district. Such cases were related to the abuse of official rural government power, family affairs, thefts and property destruction, willful and reckless murders [4, с.63]. 
It should be noted that courts of the Wallachian law were deprived of the right to assign death penalty; consequently, criminal matters were solved by the community with the help of an amicable adjustment. Conciliatory nature was one of the major common features of assembly and shock courts since the main task of such court was to reconcile parties and ensure rule of law within a rural district. 
Thus, we can confidently affirm that an amicable legal procedure is typical for the Ukrainian legal tradition. Moreover, since all full-fledged society members, who influenced a decision-making process directly, necessarily participated in the courts of customary law, a determination of such court was never called in question. To exemplify this viewpoint we can mention cases when individuals penalized with an arrest voluntary completed a punishment in rural prisons where there were no locks and guards [150, с.397].
Such high legal awareness of a medieval peasant is related to his perceiving of his guilt and justice of court decisions. As a result, we suppose that the introduction of magistrate courts in Ukraine can change a positive influence on the Ukrainian legal proceedings. Providing citizens with a real possibility to appoint and recall lay magistrates (as it happened with judges of customary courts), affect their decision-making procedure will, undoubtedly, significantly influence advancement in the Ukrainian legal culture and respect to the judicial branch of power. 
 
List of references:
1. Про повернення на доопрацювання проекту Закону про мирових суддів територіальних громад: Постанова Верховної Ради України. [Електронний ресурс]. – Режим доступу: http://gska2.rada.gov.ua/pls/zweb_n/webproc4_1?id= &pf 3511=36556.
2. Тацій В.Я. Історія держави і права України: підручник. – У 2-х т. / За ред. В.Я. Тація, А.Й. Рогожина, В.Д. Гончаренка. – Том. 1. – Кол. Авторів: В.Д. Гончаренко, А.Й. Рогожин, О.Д.Святоцький та ін. – К.: Концерн «Видавничий Дім «Ін Юре», 2003. – 656 с.
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5. Макарчук С. Звичаєве право / С. Макарчук // Етногенез та етнічна історія населення Українських Карпат : в 4-х томах. Том ІІ: Етнологія та мистецтвознавство. – Львів : Афіша, 2006. – С.385-408. {jcomments on}