scholarly journals Objections to a Cassation Appeal in Civil Proceedings in a Cassation Court of General Jurisdiction: Legal Regulation Drawbacks

2020 ◽  
Vol 11 ◽  
pp. 44-46
Author(s):  
Aleksandr M. Grebentsov ◽  

The article is devoted to the problem of legal regulation of the procedure for submitting objections to a cassation appeal in cassation proceedings in cassation court of general jurisdiction. The article points out the absence in the Code of Civil Procedure of a procedure for submitting objections to a cassation appeal taking into account the principle of competitiveness and equality of the parties, and suggests a solution to this problem.

2017 ◽  
Vol 1 (3) ◽  
pp. 190-200
Author(s):  
Natalia Kashtanova

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.


2021 ◽  
Vol 11 (5) ◽  
pp. 86-106
Author(s):  
V.V. YARKOV

The issues of legal regulation and the first experience of law enforcement of class actions on the example of chapter 22.3 of the Civil Procedure Code of the Russian Federation are considered. Despite the generally unified legal regulation of class proceedings in arbitration and civil proceedings, in the practice of courts of general jurisdiction there are specific issues that need to be addressed. In article value of unity of all conditions of qualification of the declared requirements as the class action is underlined, and also consequences of non-compliance of conditions of certification are revealed. Attention has been drawn to the necessity of application of the general rules of action proceedings along with the special rules of chapter 22.3 of the Civil Procedure Code of the Russian Federation in consideration of class actions. Also within the framework of this study the author concludes that each new legal institute raises a number of controversial issues in the process of law enforcement. And that is why it is very important to refer to the general provisions of the Civil Procedure Code of the Russian Federation, developed under the guidance of Professor M.K. Treushnikov, which allow to find the best solution for this or that problem of legal regulation and law enforcement.


2020 ◽  
Vol 10 ◽  
pp. 42-45
Author(s):  
Yulia A. Lukonina ◽  

The article reveals the main trends in the modernization of the civil procedural law principles in the context of the civil process digitalization. From the point of view of introducing the latest digital innovations into the civil process, the guidelines of the branch of the law are analyzed, the conclusions are drawn about the transformation of the legal regulation key areas. It is raised the problem of the procedural and legal collisions between the introduction of technical progress tools into the judicial system, its reflection in the regulatory framework of the state and the application in the legal work of judicial structures and practicing procedural specialists. Taking as a basis the differentiation of the civil procedural law principles by the subject of regulation, the author examines various legal configurations that have appeared in the judicial system as a result of the digitalization of procedural relations of participants in civil proceedings, starting depending on the degree of impact of digitalization. The article highlights the main aspects of the implementation of the principle of the publicity of proceedings, the corresponding principles of openness, publicity, accessibility, transparency and judicial transparency, between which a parallel is drawn. In terms of digitalization the author touches upon the principles of the judicial independence, competition, equality of parties and discretion, thereby coming to the conclusion about digital modernization of the main provisions and ideas that express the essence of civil procedural law, while maintaining the traditional positions characteristic of the Russian judicial system.


2020 ◽  
Vol 15 (1) ◽  
pp. 103-115
Author(s):  
O. N. Gorodnova ◽  
A. A. Makarushkova

Based on a comparative analysis of the norms of the procedural legislation of the Russian Federation, the paper discusses certain problems and prospects of legal regulation of the status of persons contributing to the administration of justice: expert, specialist, witness, interpreter, assistant judge, court clerk, as applied to civil proceedings.The authors analyze modern approaches to the persons contributing to the administration of justice, considering, along with traditional subjects, such a procedural figure as judicial representative in a civil procedure, taking into account the latest changes and additions to the Civil Procedure Code of the Russian Federation, entering into force on September 1, 2019.Based on a comparative analysis of the provisions of the arbitration and civil procedural laws, the authors of the paper point that the Civil Procedural Code of the Russian Federation lacks a separate chapter on legal regulation of the status of participants in civil proceedings, including those assisting in the administration of justice. This makes it difficult to establish the circle of such entities in practice. In this regard, they propose, by analogy with the Arbitration Procedure Code of the Russian Federation, to fix the circle of participants in the civil procedure in a separate chapter, revealing in detail and specifying the legal status in other articles of the Civil Procedural Code of the Russian Federation of other participants in the civil proceedings.In the paper, the authors conclude that the judicial representative must be considered as an independent subject of the civil proceedings. Finally, this problematic issue can only be resolved by making appropriate changes and additions to the Civil Procedural Code of the Russian Federation.It is noted that, despite the absence of special instructions in the Civil Procedural Code of the Russian Federation to other participants in the process, their list is not exhaustive and in fact, the circle of persons involved in the case is much wider. Such persons include court bailiffs and witnesses, whose legal status is currently debatable.


Author(s):  
Hikmat Javadov

The article covers the study of problematic aspects of legal regulation of the preparation of civil cases for trial. It is substantiatedthat normative regulation of the staging of civil procedure should include the definition of goals and objectives of a specific stage ofcivil procedural activity, which will contribute to understanding the place of preparatory judicial procedures in the structure of civil proceedings,identifying all the systemic connections of its elements.The separation of the preparation stage is due to the need to take into account the features of the corresponding procedural activityof a preliminary nature. The question is the opportunity of using qualitatively unique procedural means, the use of which is acceptableor effective at the preparation stage and is ineffective or unacceptable at the stage of judicial consideration.Establishing the parties to a dispute, involving all the persons concerned, creating a situation of transparency, of mutual awarenessof the requirements, objections, evidence of all persons participating in the dispute, is a qualitatively unique activity of a preliminarynature that must be carried out before the start of the trial. The transfer of procedural activity to the stage of judicial considerationwill lead not only to ineffectiveness of the proceedings, but also to the violation of the rights and interests of the participants, and jeo -pardize the lawfulness of the upcoming judgment.In addition to the immediate goals of preparation, there is a number of issues that are advisable to consider at the early stages ofthe procedure. These are the issues related to proving: the discovery of evidence on the motion of the persons participating in the dispute,the appointment of an examination, etc. The expediency of these actions at the preparation stage is dictated by the focus on redu -cing the duration of the judicial consideration.We believe that the activity of the court aimed at conciliation of the parties is also of a preparatory nature. All procedural activitiesshould be focused on the search for opportunities for conciliation of the parties. At the moment when the preconditions for conciliationhave appeared, the court should resort to the procedural possibilities the law offers.The concept of legal regulation of preparatory proceedings also provides for the definition of its objectives. It is the objectiveswhich concretize the preparatory actions and their sequence to be performed by the court and the participants in the dispute. Taking intoaccount the objectives of preparatory proceedings proposed by the legislator and the doctrine concerning preparatory proceedings, weconsider it legitimate to put the question of the real possibility of their implementation.


Author(s):  
Anton Koshelev ◽  
Ekaterina Rusakova

A significant leap in the development of information technology over the past twenty years has made the global legal community respond to new challenges that have come along with the progress in the digital environment. Together with the convenience of using electronic resources, society has developed a need for a simple and understandable legislative regulation of legal relations arising from the use of computer information technologies and various products of electronic digital activity in order to protect their interests potentially. The concept and types of electronic evidence in civil proceedings in different countries have different meanings. Meanwhile, the regulations of their procedural admissibility and applicability differ. The common thing is the tendency towards an increase in the use of electronic information carriers in court proceedings, increasing importance for establishing specific facts, and the decisive evidentiary role in making decisions by the court. India became one of the first countries to realize the growing level of implementation of Internet technologies, electronic digital storage media, and computer dominance in society and the state's daily life [1] (Artemyeva, Y.A. et al.). The consequence of this understanding was the timely development and implementation of the substantive and procedural bases in evidence law for practical, understandable, and convenient use of electronic evidence in civil proceedings. The article examines the types and procedural status of electronic evidence and analyzes the current legislation and law enforcement practice in the admissibility and application of electronic evidence in civil proceedings in India. The study identifies the existing system of electronic evidence in the legal field of India, the determination of the advantages and disadvantages in the gathering, presentation, research, and evaluation of electronic evidence by the court in civil proceedings, as well as the identification of the procedural order for their provision. The researchers have identified the following tasks to achieve the goals: • to define and research the legislation of India governing the concept, types and procedural order of applicability and admissibility of electronic evidence in civil proceedings in India; • to develop a particular procedural order for the effective use of the institution of electronic evidence in civil litigation in India; • to identify the current trends in the gathering, presentation, research, and evaluation of electronic evidence in India's courts, based on the established judicial practice study. The research methodology is based on general theoretical and scientific methods of cognition, including abstraction and specification, analysis and synthesis, modeling and comparison, and systemic, logical, and functional analyzes. The scientific novelty of the research consists of a comprehensive study of the instruments of legal regulation of the institution of electronic evidence in India's legal field, including regulatory legal acts and judicial precedents, and a consideration of the possibility of applying Indian approaches in the jurisdictions of other countries. The analysis of legislation and jurisprudence regarding electronic evidence in India's civil proceedings was carried out using the synergistic principle of object study, statistical-sequential analysis, and empirical research method. This study's results can be used in lawmaking to develop and improve regulations regarding the procedural status and use of electronic evidence in civil litigation in any country. The reference, citation, and use of this article's conclusions and materials are permissible when conducting lectures and seminars on civil procedure and private international law, research activities, law enforcement practice, and teaching.


Author(s):  
Тимур Султанович Габазов ◽  
Аюб Бисланович Сулейманов

Статья посвящена исследованию отдельных путей развития института заочного производства с учетом мнения отдельных исследователей и практиков. Раскрываются не только отдельные недостатки в данном виде гражданского судопроизводства, но и предлагаются реальные пути их преодоления, начиная с учреждения специальной должности - судебного курьера, использованием социальных сетей, а также соответствующих изменений в действующее законодательство. The article is devoted to the study of individual ways of development of the institution of correspondence production, taking into account the opinions of individual researchers and practitioners. It reveals not only individual shortcomings in this type of civil proceedings, but also offers real ways to overcome them, starting with the establishment of a special position - a judicial courier, using social networks, as well as corresponding changes to the current legislation.


2020 ◽  
Vol 4 (XX) ◽  
pp. 181-201
Author(s):  
Mariusz Śladkowski

One of the most important changes to the legal regulations in 2019 is the reform of the civil procedure introduced by the Act of July 4, 2019 amending the Act - Code of Civil Procedure and certain other acts. One of the most important goals of this reform was to improve the implementation of the civil right to a fair trial. According to the authors of the reform, the existing solutions in terms of the manner of conducting civil proceedings have worked well under conditions of a relatively low burden on civil courts. Nowadays, when the number of civil cases is gradually increasing, the legislator’s efforts are required that will realistically simplify and accelerate the proceedings in these cases. As part of the amendment in question, two far-reaching changes were made to two means of appeal, basic for civil proceedings, i.e. an appeal and a complaint


2020 ◽  
Vol 11 ◽  
pp. 30-33
Author(s):  
Tatyana R. Pozharskaya ◽  

An analysis of the amendments made to the Constitution of the Russian Federation in 2020 made it possible to conclude that the provisions concerning the judicial protection of fundamental human and civil rights and freedoms are stable. The role and content of the legal regulation of the participation of the prosecutor in the implementation on behalf of certain participants in civil proceedings of this right emphasizes the specifics of his procedural position. At the same time, the existence in the legal doctrine and in law enforcement practice of various positions that determine the legal status of the prosecutor in the exercise of the constitutional right to judicial protection, and the lack of a unified approach to resolving this issue give rise to constant interest in this problem. In this study, through the prism of analyzing the content of the procedural rights and duties of the prosecutor, the grounds for the implementation by the prosecutor of constitutional guarantees for protecting the interests of society and the state protected by law, the determinism of his legal status in civil proceedings is substantiated.


2020 ◽  
Vol 11 ◽  
pp. 49-51
Author(s):  
Evgeniy S. Razdyakonov ◽  
◽  
Igor N. Tarasov ◽  

The article examines some of the results of the procedural reform in terms of the resolution of corporate disputes by courts. The authors formulated four main theses that reflect the essence of this reform: the division of competence in corporate disputes between courts of general jurisdiction and arbitration courts, the expansion of the arbitrability of corporate disputes, the implementation of the principle of one-time consideration of a corporate dispute, the consolidation of new subjects of civil proceedings in corporate disputes not named in the general part of the Commercial Procedure Code of the RF and the Code of Civil Procedure of the RF.


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