The article highlights the stages of development of legislation regulating preparatory procedural actions in civil cases in courts of general jurisdiction and arbitration courts. The author notes that the Decrees of Peter the Great had an important impact on setting the time limits for the performance of some procedural preparatory actions in the 18th century. The adoption of the Charter of Civil Procedure of 1864 consolidated preliminary written preparation as an important stage in the proceedings that carried out based on adversarial and equality of rights of the parties. The author comes to a conclusion that the stage of preparing the case for trial practically did not exist until 1929, since the 1923 Civil Procedure Code of the RSFSR reduced the essence of the preparation only to the judge’s right to collect necessary evidence for the resolve of the case at the request of the plaintiff and beyond the objections of the defendant. It is noted that the RSFSR Civil Procedure Code, adopted in 1964, also did not call the preparation of the case for trial a mandatory stage of the process; and only in the Resolution of the Plenum of the Supreme Court of the RSFSR of 19 March 1969 “On the Preparation of Civil Cases for Trial” preparation was indicated as independent stage and is obligatory in every civil case. The author emphasizes that the adoption in 2002 of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation significantly changed the preparation of the case for trial, imparting an adversarial character to the preparatory actions. The legislative fundamentalization of this stage allowed the author to present the preparation of the case for trial as a system consisting of two interconnected subsystems (guided and regulatory). The author notes that a systemic approach to studying the preparation of cases for consideration makes it possible to identify the role of preparatory procedures in civil procedure, to regulate the interaction between the court and the parties, to predict possible results from preparatory procedures, and find out the balance between the purposes and aims of preparation at each stage of the proceedings. A comparative analysis of the norms of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, which regulate the rules on the disclosure of evidence, made it possible to come to the conclusion that it is inexpedient to stipulate in the Civil Procedure Code of the Russian Federation the obligation to disclose evidence without establishing measures of responsibility for its failure to comply. Attention is drawn to the inconsistency of the legislator, who defines Article 132 of the Code of Administrative Proceedings of the Russian Federation as “Aims of Preparing an Administrative Case for Trial”, but does not indicate any of them. The author offers a list of such aims. Noting the specifics of administrative proceedings, the author states that such a problem of preparing an administrative case for trial as reconciliation of the parties can be singled out with a certain degree of conditionality, since the court promotes the reconciliation of the parties if reconciliation is possible in this category of administrative cases. On the contrary, in civil and arbitration proceedings the central place in the modern model of preparatory procedures in the court of first instance should be occupied by two interrelated goals: the first is aimed at maximizing the possibilities of reconciliation of the parties, the second is aimed at the qualitative preparation of the case for consideration in court, in connection with which the importance of the stage of preparing the case for trial is growing, since in the event of conciliation or refusal of the claim, the goal of the proceedings can be achieved without trial. In her study of the problems of scientific understanding of the purposes and aims of both preparatory procedures and entire civil proceedings, the author comes to the conclusion that the effectiveness of judicial protection is directly dependent on the implementation of the targets based on constitutional provisions of civil, arbitration and administrative proceedings. Exploring foreign experience, the author points out that along with effective dispute resolution, a social function becomes an important component of the purpose of civil legal proceedings, without which domestic justice cannot do. In many ways, this should contribute to legislative consolidation of conciliation among the aims of civil, arbitration and administrative proceedings.
Wyłączenie biegłego w postępowaniu arbitrażowym
