Principles of Russian civil procedure law: positivist approach

2020 ◽  
pp. 515-522
Author(s):  
Vera Iliukhina
Keyword(s):  
Civil Rights ◽  
Russian Federation ◽  
Civil Procedure ◽  
The Third ◽  
Procedural Law ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Law ◽  
Positivist Approach

Based on the positivist approach to consciousness the law principle, the classification of the principles of Russian civil procedure law is clarified. The principles of civil procedural law of the Russian Federation are understood as the basic provisions of the civil procedural law branch, enshrined in the Constitution of the Russian Federation and (or) the Civil Procedure Code of the Russian Federation. Depending on the source of consolidation, there are three types of normative principles of civil procedure law: 1) constitutional principles of civil procedure law, duplicated in the Civil Procedure Code of the Russian Federation; 2) constitutional principles of civil procedure law that are not duplicated in the Civil Procedure Code of the Russian Federation; 3) branch principles of civil procedure law, reflected in the Civil Procedure Code of the Russian Federation. The first group includes 12 prin-ciples, the second – 7 principles, and the third – 2 principles. In contrast to the previously proposed approach to the principles of civil procedure law in our classification, the number of principles included in the first and second groups is expanded. In particular, the first group includes the principle of le-gality, the principle of guaranteed protection of human and civil rights and freedoms, the principle of respect for the individual's honor and dignity, the principle of the individual's freedom and inviolability, the principle of secrecy of correspondence, telephone and other conversations, postal, telegraphic and other messages, the principle of home inviolability, the principle of freedom from the obligation to testify, and the principle of administering justice only by the court. We put forward the position that some of the nor-mative provisions of the Code of Civil Procedure are not the initial, funda-mental ideas of civil procedure law.

scholarly journals Classification of Measures of Restriction: From a “Mixed” Criterion to a Connection with the Object of Restriction

2020 ◽  
Vol 15 (3) ◽  
pp. 154-165
Author(s):  
E. V. Mandzhieva
Keyword(s):  
Human Rights ◽  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Proceedings ◽  
Coercive Measures ◽  
Procedure Code ◽  
The Russian Federation ◽  
The Law

Achieving the aims of criminal proceedings is impossible without coercion, which significantly restricts human rights and freedoms, including constitutional ones, and, therefore, it is permissible only if there are grounds and in the manner prescribed by the criminal procedure legislation. The grounds, conditions and procedure for applying measures of restriction in criminal proceedings largely depend on the correct systematization of criminal procedure legislation, which may be the basis for a systematic interpretation of the text of the law. Combining other measures of procedural coercion in Ch. 14 of the Criminal Procedure Code of the Russian Federation does not have clear criteria, which is fraught with the erroneous use of procedural coercion against participants in criminal proceedings. The purpose of the paper is to assess the directions of possible improvement of the legislation regarding the systematization of procedural coercion measures. Measures of procedural coercion should be structured and systematized in the Criminal Procedure Code of the Russian Federation on clear and uniform grounds, including coercive measures, which are not measures of restriction. Currently, there are no such grounds in relation to other measures of procedural coercion, united in Ch. 14 of the Criminal Procedure Code of the Russian Federation, which impedes their reasonable application. The contents of Ch. 14 of the Criminal Procedure Code of the Russian Federation should be revised taking into account logical and legal ties. As a result of the research the author developed the ideas on logical connections as one of the main bases for the classification of the norms governing the use of procedural coercion, affecting its legality and validity.

ON THE NATURE OF RELATIONSHIPS FOR RECONCILIATION AND THE DESIRABILITY OF THEIR REGULATION IN CIVIL PROCEDURAL CODES

2021 ◽  
Vol 11 (3) ◽  
pp. 109-131
Author(s):  
S.S. KAZIKHANOVA
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
Federal Law ◽  
Procedural Law ◽  
Procedure Code ◽  
Arbitration Procedure ◽  
The Subject ◽  
The Russian Federation ◽  
Administrative Code ◽  
The Relationship

The article analyzes the changes made to the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and the Administrative Code of the Russian Federation by the Federal Law of 26 July 2019 No. 197-FZ, related to the regulation of conciliation procedures. The question is raised as to whether the civil procedural codes should regulate relations on reconciliation and to what extent. Agreement is expressed with those authors who believe that, by their nature, the relations that develop in conciliation procedures between its participants (including in cases where the conciliation procedure is directed by a judge) are not procedural and are not part of the subject of civil procedural law. The non-procedural nature of the relationship between the judicial conciliator and the court in the procedure of judicial conciliation under the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and the Administrative code of the Russian Federation is substantiated. It is concluded that due to the qualitatively different nature of reconciliation relations from civil procedural relations, as well as their lack of connection with the resolution of a civil case in a certain system of guarantees (civil procedural form), there is no place for articles on individual conciliation procedures among procedural norms. In this regard, it is proposed to either exclude them, or, as an option, transfer them to the appendix to the Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Administrative code of the Russian Federation (just as in the Civil Procedure Code of 1964 there was an appendix, in particular, about the arbitration court).

COMPULSORY ENFORCEMENT OF ARBITRAL AWARDS IN RUSSIA - A DANGEROUS LEGAL PRECEDENT HAS OCCURRED

2020 ◽  
Vol 10 (5) ◽  
pp. 101-117
Author(s):  
M. SCHAER ◽  
N.I. GAIDAENKO SCHAER ◽  
O.V. ZAYTSEV
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Civil Procedure ◽  
Arbitral Award ◽  
Procedural Law ◽  
Procedure Code ◽  
Legal Precedent ◽  
Moscow City ◽  
Long Time ◽  
The Russian Federation

In this article, the authors study and analyze the recent decisions of the courts of general jurisdiction (the appeal ruling of the Judicial Collegium for Civil Cases of the Moscow City Court of 26 July 2019 in case No. 33-34038/19 and the ruling of the Second General Jurisdiction Court of Cassation of 12 March 2020 in case No. 88-3792/2020). The authors, in the process of analyzing these examples of law enforcement law, come to the conclusion that the lack of a pro-arbitration approach in the courts of general jurisdiction to the application of the provisions of the Civil Procedure Code of the Russian Federation on the procedure for enforcing decisions of arbitration courts may not only block for a long time decision, but also to help reduce the popularity of arbitration proceedings as a way to resolve commercial disputes in Russia. In addition, the researchers note that the existing norms of the procedural law contribute to the emergence of situations that increase the time and cost of enforcing the arbitral award and create additional risks, including those associated with both delaying the process and blocking the execution of the arbitral award.

The Content of the Concept of «Conclusion» in the Civil Process

2021 ◽  
pp. 48-53
Author(s):  
Ryzhkov K. S. ◽  
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
General Concept ◽  
General Definition ◽  
Civil Process ◽  
Procedural Law ◽  
Expert Opinions ◽  
Procedure Code ◽  
The Russian Federation ◽  
Definition Of

The article analyzes the problems associated with the content and scope of the concept of «conclusion» in civil procedural law. The absence of a definition of the concept of «conclusion» in the current legislation is noted, as well as the discussion that exists in the scientific literature on this issue. Attention is drawn to the application of this concept to procedural institutions of various contents (expert opinion and opinion in accordance with Articles 45 and 47 of the Civil Procedure Code of the Russian Federation). The aim of the study is to establish the content of the general concept of «conclusion» in the civil process by formulating its definition. To achieve this goal, the author has set the task of identifying differences between different types of conclusions in the civil process. The author also set the task of identifying common features that both expert opinions and conclusions have in accordance with Articles 45 and 47 of the Civil Procedure Code of the Russian Federation. In the framework of this study, methods such as the analysis method, as well as system-structural and formal-legal methods were applied. The content of the procedural rules in their totality and comparison, including the norms of other procedural branches of law, is analyzed. The application of the above methods allowed us to fully achieve the goals and objectives of the study, to formulate scientifically based conclusions. Based on the results of the study, the author gives a general definition of the concept of «conclusion» in civil procedure law, applicable to all types of opinions that exist within the framework of the norms of the Civil Procedure Code of the Russian Federation. Attention is drawn to the nature of the conclusion as a judgment of an evaluative nature. As signs of a conclusion in a civil process, its subject (the subject of civil process) and a specific procedural form are named.

Commentary to the Civil Procedure Code of the Russian Federation (continuation)

2017 ◽  
Vol 7 (2) ◽  
pp. 73-111
Author(s):  
M.R. Zagidullin ◽  
◽  
I.V. IReshetnikova ◽  
R.B. Sitdikov ◽  
◽  
...  
Keyword(s):  
Russian Federation ◽  
Civil Procedure ◽  
Procedure Code ◽  
The Russian Federation

Human Rights Activities as a Function of the Prosecutor’s Office

2020 ◽  
Vol 3 ◽  
pp. 88-93
Author(s):  
K.N. Golikov ◽  
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Russian Federation ◽  
The State ◽  
Main Function ◽  
Federal Law ◽  
The Subject ◽  
The Russian Federation ◽  
The Law

The subject of this article is the problems of the nature, essence and purpose of prosecutorial activity. The purpose of the article is to study and justify the role of the human rights function in prosecutorial activities in the concept of a modern legal state. At the heart of prosecutorial activity is the implementation of the main function of the Prosecutor’s office – its rights and freedoms, their protection. This means that any type (branch) of Prosecutor's supervision is permeated with human rights content in relation to a citizen, society, or the state. This is confirmed by the fact that the Federal law “On the Prosecutor's office of the Russian Federation” establishes an independent type of Prosecutor's supervision-supervision over the observance of human and civil rights and freedoms. It is argued that the legislation enshrines the human rights activities of the Prosecutor's office as its most important function. It is proposed to add this to the Law “On the Prosecutor's office of the Russian Federation”.

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