scholarly journals LEGAL CERTAINTY AS AN EVALUATIVE CATEGORY IN CIVIL PROCEEDINGS

2020 ◽  
pp. 3-7
Author(s):  
M.A. Bolovnev ◽  
I.V. Rekhtina
Keyword(s):  
Law Enforcement ◽  
Civil Procedure ◽  
Judicial Discretion ◽  
Legal Certainty ◽  
Legal Proceedings ◽  
Effective Implementation ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Subsequent Application ◽  
Judicial Protection

The article explores the effect of the legal certainty of civil procedure legislation and its application onthe creation of appropriate conditions for the effective implementation of justice. It is stressed that the lack of legal certainty, namely, its opposite — legal “uncertainty,” creates both legislative conflicts and, even moresignificantly, law enforcement problems, which significantly reduce the accessibility of justice to personsin need of judicial protection. The courts used different procedural rules, using a formalistic approach,jeopardizing the delivery of a lawful and justified judicial act. In order to overcome the state of legaluncertainty and, as a result, to improve the efficiency of legal proceedings, it is necessary to use techniquesof legal technique that do not lead to the emergence of causal rules of law. The model of the most generalrules is capable of being applicable to any emerging procedural situation, taking into account systemic andtargeted modes of interpretation. It is this approach to the construction of the system of legislation, togetherwith the subsequent application of the rules on the basis of internal conviction and judicial discretion, thatwill ensure the unity of judicial practice.

scholarly journals The concept of “justice” in the legislation of Russia and France, implementation features

2019 ◽  
Vol 135 ◽  
pp. 04006
Author(s):  
Vera Borshcheniuk ◽  
Nina Semeryanova ◽  
Uliana Filatova ◽  
Valeriy Zhabskiy
Keyword(s):  
Law Enforcement ◽  
Rule Of Law ◽  
Civil Procedure ◽  
Effective Implementation ◽  
Judicial Practice ◽  
Procedure Code ◽  
Administration Of Justice ◽  
Balance Of Interests ◽  
Principle Of Justice ◽  
The Law

The relevance of the study is determined by the prevailing variety of approaches to understanding the essence of the concept of “justice”, which is characteristic of both Russia and France. Such variability leads to a persistent distortion of this concept in practice of law enforcement, which, in turn, affects the effectiveness of administration of justice. The aim of the authors is to study scientific theoretical views and practical issues associated with the implementation of the principle of justice in two states. In the work we used following methods: dialectics, analysis, synthesis, deduction, as well as the formal legal and comparative legal method.Based on the analysis of the doctrine, legislation and judicial practice of two states, Russia and France, the following conclusions are drawn. At present, “justice” is understood as a universal notion, which is not limited only by coverage of regulatory norms of the law, but is actively applied by judicial practice. The use of this concept allows the court to make fair decisions depending on specific circumstances of the case, thereby achieving a balance of interests of participants in the process by interpreting and clarifying the law, and in some cases by creating a new rule of law that allows the courts to ensure the effective implementation of the principle of justice. However, in order to avoid variability in understanding this notion, it is proposed to fix the concept of “justice” in the civil procedure code, this will reduce the percentage of judicial conflicts and will contribute to formation of a uniform judicial practice.

scholarly journals The Problem of Judicial Discretion in Declaration of Evidence Falsity by a Party as a Hindrance to Fulfillment of Tasks of Judicial Proceedings in a Civil Procedure

2021 ◽  
Vol 2 ◽  
pp. 17-21
Author(s):  
Anastasia S. Strazheva ◽  
Keyword(s):  
Law Enforcement ◽  
Civil Procedure ◽  
Judicial Discretion ◽  
Law Enforcement Agencies ◽  
Legal Proceedings ◽  
Civil Process ◽  
The Supreme Court ◽  
Judicial Proceedings ◽  
The Russian Federation ◽  
New Evidence

Judicial discretion at the statement of the party about falsity of the proof is considered as the problem creating obstacles to achievement of objectives of legal proceedings in civil process. Ways of its resolution are offered: establishing in the legislation or Resolution of the Plenum of the Supreme court of the court’s obligation to appoint an examination or offer the parties to submit other evidence when a party claims that the evidence is false, only if the suspected evidence confirms or refutes a fact that is relevant to the case, but in fact at the time of filing such an application there is no evidence directly confirming or refuting this fact; establishing liability in the form of a fine on the party that did not substantiate the statement of fraud; addition of the article of the civil procedure code of the Russian Federation on the statement of falsification of evidence, the rule on sending information about it to law enforcement agencies in necessary cases, when establishing the falsification of evidence; revision for newly discovered circumstances when providing new evidence, when evidence showing a lie appeared after the decision entered into legal force (through implementation by official interpretation).

scholarly journals Some Arguments about the Benefits of Applying the System of Civil Procedure Law in Civil Proceedings

2020 ◽  
pp. 060-066
Author(s):  
A. D. Zolotukhin ◽  
◽  
L. A. Volchihina ◽  
Keyword(s):  
Positive Result ◽  
Civil Procedure ◽  
Legal Norms ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Definition Of ◽  
Relationship Of ◽  
The Relationship

On the basis of research, the structure of civil procedural law is defined as a system rather than an elementary set of legal norms and institutions. Determining the significance of the system of civil procedural law, it was concluded that having individuality, such a structure is one of the features that distinguish civil procedural law from other branches of law. The authors also come to the conclusion that the established properties of the system of civil procedural law, such as unity, interconnection (interaction) and independence of application, determine the possibility of applying individual elements of the structure of the system of civil procedural law, when considering substantive situations as an independent both individually and collectively. This ensures the possibility of obtaining the required positive result and characterizes it as universal. Critically examining various concepts, the authors offer their own definition of the concept of the system of civil procedural law. The conclusion is also made about the relationship of the system of civil procedural law with the principles of civil procedural law and the procedural form of civil legal proceedings.

scholarly journals Zarzut potrącenia jako podstawa powództwa opozycyjnego po zmianach wprowadzonych na mocy ustawy z dnia 4 lipca 2019 r. o zmianie ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw (Dz.U. 2019, poz. 1469)

2020 ◽  
Vol 29 ◽  
pp. 198-212
Author(s):  
Andrzej Olaś ◽  
Keyword(s):  
Civil Procedure ◽  
Practical Application ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Theoretical Assumptions

This article discusses the issue of the set-off defense as the basis for an action to limit or cancel the enforceability of an enforceable title after amendments as provided for pursuant to the Act of 4 July 2019 amending the Act – Code of Civil Procedure and some other acts. The purpose of the article is to indicate the basic interpretative issues emerging from the regulations contained in the Article 840 § 1 item 2 of the Code of Civil Procedure which are likely to pose major problems in its practical application and to offer some reasoned proposals for their solution in a manner consistent with theoretical assumptions and at the same time as useful as possible for judicial practice in the civil proceedings.

scholarly journals Role of the Plenum of Russian Supreme Court in the judicial practice formation

2022 ◽  
Vol 5 (4) ◽  
pp. 209-225
Author(s):  
Yu. S. Pestereva ◽  
I. G. Ragozina ◽  
E. I. Chekmezova
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Complex Analysis ◽  
The Other ◽  
Judicial Discretion ◽  
Dialectical Theory ◽  
Judicial Practice ◽  
Other Hand ◽  
The Law

The subject. The article considers the role of the Plenum of Russian Supreme in forming judicial practice on the example of giving qualification to the crimes committed against sexual freedom and inviolability, as well as against property and public health.The objective of the article is to conduct a complex analysis of the function of the decisions, taken by the Plenum of Russian Supreme Court, in the formation of a unified vector of judicial practice. The authors dare to refute the hypothesis hat judicial practice can be recognized as a source of law.The methodological basis of the research is the dialectical theory of development and interrelation of phenomena. Historical, formal-logical, systematic methods of knowledge have been identified as relevant to the topic of the study.The main results, scope of application. The authors draw attention to the problem of evaluative features used in the process of law enforcement when interpreting the norms of the Special Part of the Criminal Code of the Russian Federation. A norm with such signs acquires an unformalized essence from the point of view of the boundaries of criminalization of a particular phenomenon. On the other hand, the nature of crimes is so diverse that without the flexibility of criminal law regulation (allowing the use of evaluative features), the application of the norm taking into account specific circumstances in a particular case may not be possible. The authors also consider issues related to the characteristics of the objective side, the end time of these crimes, the application of the formula of a single ongoing crime and its separation from related compounds. The process of law enforcement is based on such guidelines as the norms of law, judicial discretion, established judicial practice, the position of the Plenum of Russian Supreme Court. Attributing an explanatory role to the decisions of the Plenum of Russian Supreme Court does not completely eliminate the shortcomings inherent in legal technology. Correcting the current situation with the help of judicial discretion is not always justified, since this is possible only if there is a legitimate alternative. Assigning the status of a precedent to a judicial decision may lead to the substitution of the law by decisions taken in a particular case.Conclusions. The judicial practice concerning these issues is completely different. Despite the existence of similar situations, courts, as a rule, qualify an offense using various norms of the law, which negatively affects compliance with the principle of legality. The issue related to the function of the decisions of the Plenum of Russian Supreme Court in the formation of a single vector of judicial practice has been and remains debatable. The continued addition of new articles to criminal legislation, on the one hand, indicates the desire of the legislator to bring it to perfection, but, on the other hand, forms a mechanism for clarifying the rules of its application, which sometimes leads to their contradictory interpretation. At the same time, crime and punishment should be determined only by legislation.

scholarly journals To the admissibility of the civil law exemption of property from arrest, imposed in the criminal proceedings: domestic and foreign experience

2017 ◽  
Vol 1 (3) ◽  
pp. 190-200
Author(s):  
Natalia Kashtanova
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Criminal Case ◽  
Criminal Proceedings ◽  
Procedure Code ◽  
Civil Proceedings ◽  
The Russian Federation ◽  
Judicial Protection

The subject of paper deals with the legal nature of measures of criminal procedural compulsionin the form of seizure of property.Methodological basis of the article is based on general scientific dialectical methods of cognitionof objective reality of the legal processes and phenomena that allowed us to conduct anobjective assessment of the state of legislation and law enforcement practice in the proceduralaspects of the cancellation of the seizure of property in criminal proceedings of Russia.The results and scope of it’s application. It is submitted that the cancellation of the seizureof the property (or the individual limit) is allowed only on the grounds and in the mannerprescribed by the criminal procedure law of the Russian Federation. However, the studyfound serious contradictions in the application of the relevant law. In particular, cases inwhich the question of exemption of property from arrest (exclusion from the inventory),imposed in the criminal case was resolved in a civil procedure that, in the opinion of theauthor of the publication, is extremely unacceptable.On the stated issues topics analyzes opinions of scientists who say that the dispute aboutthe release of impounded property may be allowed in civil proceedings, including pendingresolution of the criminal case on the merits. The author strongly disagrees with this positionand supports those experts who argue that the filing of a claim for exemption of propertyfrom arrest (exclusion from the inventory) the reviewed judicial act of imposing of arrestwithout recognition per se invalid. In this regard, the author cites the legal position ofthe constitutional Court of the Russian Federation, from which clearly follows that of theright of everyone to judicial protection does not imply the possibility of choice of the citizenat its discretion, techniques and procedures of judicial protection, since the features of suchjudicial protection is defined in specific Federal laws.The author analyzes and appreciates Kazakhstan's experience of legal regulation of the permissibilityof filing a civil claim for exemption of property from seizure imposed in criminalproceedings. The author notes that the new civil procedural legislation of the Republic ofKazakhstan, which came into force from 01 January 2016, clearly captures that considerationin the civil proceedings are not subject to claims for exemption of property from seizureby the criminal prosecution body.Conclusions. Necessity of amendment to article 422 of the Civil Procedure Code of Russia:this article should not apply to cases of application of measures of criminal procedural compulsionin the form of seizure of property. Among other things, the author proposed additionsto part 9 of article 115 of the Criminal Procedure Code of Russia.

The Problem of the Right to Trial: The Theory and Practice of Dualism and Interaction between Substantive and Procedural Law

2021 ◽  
Vol 16 (12) ◽  
pp. 79-97
Author(s):  
E. E. Uksusova
Keyword(s):  
Theory And Practice ◽  
Regulation Mechanism ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Legal Relationship ◽  
Civil Proceedings ◽  
Administration Of Justice ◽  
The Right ◽  
Judicial Protection

Continuing the study of specialization of Russian civil procedural law, the author, based on the invariable perspective of its action, namely: a standardized court procedure of civil proceedings in administration of justice in a certain civil case and protection of the right, dwells on certain issues of its structural and functional characteristics — classification of procedural norms, mechanism of procedural regulation, mechanism of procedural legal relationship, etc. Through the context of the principle of dispositiveness, when clarifying the scope of its action and content as the legal beginning of legal proceedings (its leading element is the right to trial leading to the interaction of substantive and procedural law in the course of judicial protection of the right), the author analyzes and reveals the content, substantiates connections and relations between various interdisciplinary phenomena of law (a claim, the right to claim, etc.). The latest jurisprudence illustrates the importance of the conceptual legal apparatus for the development of legal science, law and improvement of its implementation in the Russian legal order.

The Improvement of Scientific Approaches to Bases for Classification of Civil Procedure Law Principles

2020 ◽  
Vol 10 ◽  
pp. 3-7
Author(s):  
Ivan S. Klabukov ◽  
Keyword(s):  
Law Enforcement ◽  
Critical Analysis ◽  
Civil Procedure ◽  
Public Authorities ◽  
Legal Literature ◽  
Civil Proceedings ◽  
State Authority ◽  
Government Body ◽  
New Criterion

Аmong the current unsolved problems of the science of civil procedure law is the question of finding optimal criteria for classifying the principles of civil procedure law. The need to study this issue is due to the fact that in the science of civil procedure law, the most developed classical bases for the classification of principles. At the same time, law enforcement practice shows that participation in civil proceedings of public authorities and local self-government bodies modifies the essence of sectoral principles of civil procedure law. In this regard, the author gives a critical analysis of the principles of civil procedure law based on the existing legal literature and justifies the need to introduce a new criterion for the classification of principles, taking into account the participation of a special subject of civil procedural relations — a state authority or a local self-government body.

scholarly journals The forms and methods of optimization of civil procedure

2020 ◽  
pp. 266-269
Author(s):  
Andriy Gulyk
Keyword(s):  
Law Enforcement ◽  
Optimization Problems ◽  
Structural Characteristics ◽  
Civil Procedure ◽  
Main Form ◽  
Procedural Law ◽  
Judicial Practice ◽  
Civil Cases

The article covers structural characteristics of optimization of civil procedure. It is noted that the study of optimization of civilprocedure determines the establishment of all essential characteristics of this phenomenon. Among them, undoubtedly, one should referto the issues of forms and methods of optimization.It is substantiated that optimization involves the novelization of civil procedural legislation or certain amendments to the rules inforce of carrying out civil procedural activities. It is possible only as a result of legislative work. This is the main form of optimizationof civil procedure.It is proved that judicial enforcement is a prerequisite of the legislative form of optimization. In this case, generalization andanalysis of judicial practice play an important role, allowing discerning the problematic aspects of law enforcement, determining themost effective ways to resolve the relevant problems and achieving the necessary unity of judicial practice.It is argued that optimization is a certain instrumentarium for assessing civil procedure, as well as possible directions for its transformation.It is emphasized that optimization should be studied both from the perspective of stages and procedural form of carrying outcivil procedural activities, and from the perspective of implementing certain norms and institutions of civil procedural law. At the sametime, the author relates the conciliation procedures and procedural periods to the general provisions of civil procedure rather than tospecial optimization methods.It is substantiated that optimization, as well as improvement of civil procedural legislation, cannot be reduced solely to simplificationand acceleration of civil procedure.The author considers optimization of civil procedure as a complex legal category. It is noted that it is right to study the procedurefor the consideration and resolution of civil cases in general or to concentrate on the narrower issues of the content of particular stagesor proceedings. Attention may also be paid to issues of the formation of adequate judicial practice in civil cases. It is important to studyany section of civil procedural activity from the perspective of optimization.The author believes that within the framework of studying optimization of civil procedure, issues of optimization of particularstages and proceedings of civil procedure can be considered. Moreover, the comprehension of the activities of subjects of civil procee -dings also needs to be carried out in the light of of its optimization and efficiency. In the same way, the analysis of the procedural meansof ensuring the realization of the task of civil procedure is possible through the study of optimization problems.

scholarly journals Interim Measures in the Civil Proceedings in England: the Concept and Certain Types

Legal Concept ◽  
2020 ◽  
pp. 121-128
Author(s):  
Valentina Koncheva
Keyword(s):  
Legal Regulation ◽  
Judicial Discretion ◽  
Legal Institutions ◽  
Legal Practice ◽  
Civil Process ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Civil Remedies ◽  
The Subject ◽  
Interim Measures

Introduction: the legal institutions aimed at creating conditions for the efficiency of justice are now the subject of attention in the field of civil proceedings. This includes the institution of interim measures. The legal regulation of interim measures in the civil proceedings in England has been actively developing for several decades and today is of considerable interest to business, science and legal practice. The purpose of the research is to analyze the concept and features of the legal regulation of the main types of interim measures that can be of interest for forming the ideas about the possibilities of development of the Russian civil process. The obtained research results are based on the analysis of the normative provisions of Civil Procedure Rules 1998, the Senior Courts Act 1981, relating to the powers of the courts, the grounds and procedure for applying interim measures in the civil proceedings. The examples of judicial practice and the opinions of the researchers and practitioners are considered. The paper considers the general features of the legal institutions of interim measures in England and Russia and the peculiarities of understanding the legal possibilities of interim measures in the civil proceedings in England. Conclusions: the experience of England in solving the issues of ensuring the efficiency of civil remedies is of interest for both Russian legal science and practice. The study shows that there are specific features of the approach to the functioning of interim measures. This includes a fairly large amount of judicial discretion, a preliminary guarantee of compensation for the defendant’s losses, and mostly voluntary enforcement of the court requirements. The legal experience of England may be of interest for discussing the ways to improve the domestic procedural regulation of interim measures.

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