METHODOLOGICAL SIGNIFICANCE OF DIALECTICAL CATEGORIES IN THE IDENTIFICATION AND STUDY OF PROBLEMS OF CIVIL AND ARBITRATION PROCEDURE LAW

2021 ◽  
Vol 11 (5) ◽  
pp. 71-85
Author(s):  
V.M. SHERSTYUK
Keyword(s):  
Civil Procedure ◽  
Arbitration Procedure ◽  
The Subject

The article is devoted to the study of the use of some categories of dialectics both in identifying and in studying the problems of civil and arbitral procedure law. Each category allows to reveal its own peculiar features and properties of the branch of law and its structural subdivisions, not only to obtain certain conclusions, but, what is equally important, to put into research its own problems, the answer to which the use of this or that particular category gives. It is noted that each category allows to reveal some one side of the subject of research, but to reveal in depth. In particular, the author argues that a comprehensive disclosure of the essence of civil procedure law is impossible with the use of any one category. Only by covering all or most of them it is possible to fully and comprehensively disclose the essence of the subject of research. At the same time, each method implies the study only of certain problems, conditioned by it. The study of some other problems, “alien” to this method will not give the necessary results. Thus, it is impossible to solve the problems of the system of branch of law with the help of the activity approach.

scholarly journals Reforming the Institution of a Class Action in Russian Law: Selected Issues

2020 ◽  
Vol 15 (7) ◽  
pp. 68-75
Author(s):  
V. A. Kolotov
Keyword(s):  
Subject Matter ◽  
Civil Procedure ◽  
Class Action ◽  
Class Actions ◽  
Arbitration Procedure ◽  
The Subject ◽  
Comprehensive Reform ◽  
Russian Law ◽  
The Law

The paper is devoted to some issues associated with a class action. The subject matter of the study is relevant in light of a comprehensive reform of this institution in the arbitration procedure and the emergence of class actions in civil procedure. The author highlights that class action proceedings cannot be considered as an equal alternative to joinder. Thus, in the author’s view, along with quantitative criteria some other criteria should be used to distinguish class action proceedings from joinder. The author investigates the issue of competition between the class action and individual claims. This problem is resolved in procedural codes in different ways. The paper focuses on some problems associated with the grounds and order of replacement of the claimant representing parties involved. Taking into account that the law allows considering homogeneous claims in collective proceedings, the author concludes that it is necessary to elaborate more detailed rules relating to the case where the class action involves a set of individual claims brought by each participant.

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).

LEGAL RESPONSIBILITY IN CIVIL PROCEDURE

2021 ◽  
Vol 11 (1) ◽  
pp. 119-134
Author(s):  
M.R. ZAGIDULLIN
Keyword(s):  
Legal Liability ◽  
Civil Procedure ◽  
Legal Responsibility ◽  
Legal Proceedings ◽  
Administrative Procedure ◽  
Civil Proceedings ◽  
Performance Fees ◽  
Arbitration Procedure ◽  
The Subject ◽  
Actual Loss

The article presents the results of the author’s dissertation research on legal responsibility in the civil procedure. The author substantiates the conclusion of the broadest interpretation of the civil procedure, according to which it should include: 1) judicial civil procedure: civil procedure, arbitration procedure, administrative procedure (legal proceedings); 2) out-ofcourt civil procedure: notary, enforcement proceedings, mediation, pre-trial conflict resolution, arbitration. Legal liability in civil proceedings should be understood as a type of state coercion, which consists in the subject of civil proceedings undergoing the adverse consequences provided for by the rule of law for a procedural offense committed by them in civil proceedings. The author also distinguishes between the concepts of responsibility in civil proceedings and civil procedural responsibility. Civil procedural responsibility should be understood as a subspecies of procedural responsibility, which is the obligation of the subject of civil procedure to undergo adverse procedural consequences provided for by the norm of civil procedure law, affecting the course of the procedure, for the procedural offense committed by him. Accordingly, it is proposed that court fines, performance fees, and compensatory (legal) liability (payment of court expenses, compensation for actual loss of time) should be attributed not to procedural, but to material and legal liability implemented in civil (civil) proceedings. The general state of implementation of civil and procedural liability measures in various branches of the civil procedure is clearly demonstrated in the form of a comparative table.

scholarly journals MEDICAL AND PROCEDURAL-LEGAL ASPECTS OF INPATIENT AND OUTPATIENT FORENSIC PSYCHIATRIC EXAMINATION

2020 ◽  
Vol 73 (7) ◽  
pp. 1533-1538
Author(s):  
Sandra Kaija ◽  
Inga Kudeikina ◽  
Nataliya Gutorova
Keyword(s):  
Medical Practitioner ◽  
Legal Framework ◽  
Legal Regulation ◽  
Legal Aspects ◽  
Civil Procedure ◽  
Legal Doctrine ◽  
Psychiatric Examination ◽  
Legal Norms ◽  
The Subject ◽  
Forensic Psychiatric

The aim: The aim of the study is to define the legal framework of forensic psychiatric examination commissioned by the court in relation to the competence of medical practitioners and the position of the subject as a patient in the process of forensic psychiatric examination in order to determine the correlation of special legal regulation with criminal and civil procedure regulation and to make proposals for the enhancement of the legal regulation. Materials and methods: This study is based on the analysis of international law, medical civil procedure and criminal procedure legislation, juridical practice, medical law legal doctrine. The following methods were used in this research: the method of interpretation of legal norms, analysis of legal acts, and the induction-deduction method, upon which the conclusions were drawn and recommendations were provided. Conclusion: The current regulatory framework does not provide for the procedure by which the subject’s medical treatment is conducted during forensic psychiatric examination, nor does it determine the criteria for the admissibility of treatment of the persons concerned and the extent of treatment. During the examination, the medical practitioner who is in the expert’s procedural position in relation to the subject under examination in the particular examination should not carry out the treatment of the subject.

scholarly journals Opunomoćenici u upravnom sporu

2020 ◽  
Vol 41 (1) ◽  
pp. 69-85
Author(s):  
Marko Šikić ◽  
Mateja Held
Keyword(s):  
Subject Matter ◽  
Civil Procedure ◽  
Civil Proceedings ◽  
The Subject ◽  
Administrative Courts

Amendments to the Act on Administrative Disputes 2014 added paragraph 2 to the Article 21. It refers to the proper application of the provisions of the Civil Procedure Act in administrative disputes. The Croatian administrative courts have taken a restrictive approach in interpreting that provision, which excludes certain categories of persons from representing complainants and interested parties. The paper problematizes the concept of the authorised representatives in administrative disputes and emphasizes expertise and quality as important features of the representation in general, including the authorised representatives in administrative disputes. The comparative arrangements of European systems in the subject matter are also analysed. It is argued that when interpreting the representation provisions, it is necessary to consider the particularities of the administrative dispute, but also the formulation of the provision, which undoubtedly leaves room for interpretation, as it refers to the “appropriate” application of the provision governing representation in civil proceedings.

SECURING EVIDENCE IN CIVIL PROCEDURE: DEVELOPMENT OF THEORY, LEGISLATIVE AND PRACTICE

2021 ◽  
Vol 11 (5) ◽  
pp. 159-190
Author(s):  
E.I. NOSYREVA ◽  
D.G. FILCHENKO
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Point Of View ◽  
Theoretical Concepts ◽  
Civil Process ◽  
Procedure Code ◽  
Arbitration Procedure ◽  
The Russian Federation ◽  
Assessment Of Evidence

The article presents an analysis of the institution of securing evidence in the civil process from the point of view of the development of its legal regulation, doctrine and practice. The teaching of professor M.K. Treushnikov on the evidence is taken as a basis. Through the prism of his ideas, theoretical concepts of securing evidence are revealed, from prerevolutionary works to modern research; the sequence of the formation of norms on the securing evidence on the example of procedural codes of various periods; trends in the law practice of securing evidence. The correlation of the securing evidence with the elements of the judicial proof is revealed. It is substantiated that the securing evidence includes such elements of the structure of judicial proof as: indication of facts, indication of evidence and preliminary assessment. The end result of the procedural action to secure evidence is the possibility of implementing all subsequent elements – presentation, disclosure, investigation and final assessment of evidence. Conclusions are formulated on the results of the development of the institution of securing evidence, which from rather brief and obvious provisions of procedural legislation, a few practice has turned into an actual procedural activity. Its demand is predicted to grow in the context of digitalization of information, as well as due to the possibility of using it in the framework of arbitration. At the same time, an increase in the number of cases of unfounded appeal of interested parties to actions to secure evidence is noted. The authors support a critical assessment of the rule of the Arbitration Procedure Code of the Russian Federation that the securing evidence is carried out by the arbitration court according to the rules for securing a claim, and a proposal for a unified regulation of this institution in accordance with the rules of the Civil Procedure Code of the Russian Federation.

NEW CLASSIFICATION OF PRINCIPLES OF CIVIL PROCEDURE

2021 ◽  
Author(s):  
Тимур Султанович Габазов ◽  
Амир Ахметович Мужахаев ◽  
Аминат Аслановна Солтамурадова
Keyword(s):  
Civil Procedure ◽  
New Classification ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Key Factor ◽  
The Subject ◽  
The Right

В представленной статье кратко раскрывается смысл понятия такого явления, как принцип гражданского процессуального права, а также дана классификация принципов, уже существующих и утвердившихся в теории гражданского процесса. Авторы работы предприняли попытку разработать новую классификацию принципов гражданского судопроизводства, отличную от общепринятой, в которой ключевым фактором выступает субъект, которому эти принципы адресованы по своему содержанию. По результатам проведенного исследования выделены субъекты, которым адресованы действия этих принципов: адресованные только суду; адресованные только лицам, участвующим в деле; - адресованные всем субъектам гражданского судопроизводства в целом (общие). Можно вполне обосновано сказать, что новая классификация принципов гражданского процесса, в зависимости от субъекта имеет право на существование. The presented article briefly reveals the meaning of the concept of such a phenomenon as the principle of civil procedural law, and also gives a classification of the principles that already exist and are established in the theory of civil procedure. The authors of the work attempted to develop a new classification of the principles of civil proceedings, different from the generally accepted one, in which the key factor is the subject to whom these principles are addressed in their content. According to the results of the study, the subjects to whom the actions of these principles are addressed: addressed only to the court; addressed only to persons participating in the case; - addressed to all subjects of civil proceedings in general (general). It can be reasonably said that the new classification of the principles of civil procedure, depending on the subject, has the right to exist.

Establishing the Circumstances of Civil Cases: Some Doctrinal and Practical Approaches

2021 ◽  
Vol 16 (12) ◽  
pp. 53-68
Author(s):  
S. M. Mikhailov ◽  
M. D. Olegov
Keyword(s):  
Russian Federation ◽  
General Rule ◽  
Civil Procedure ◽  
Judicial Practice ◽  
Legal Fiction ◽  
Close Relationship ◽  
Arbitration Procedure ◽  
The Russian Federation ◽  
Civil Cases ◽  
True Knowledge

The paper analyzes certain provisions of civil procedural legislation in terms of their effectiveness as a means of establishing actual circumstances of civil cases by the court from the standpoint of doctrine and judicial practice. The authors examine the relationship between the presentation and disclosure of evidence, draw a conclusion about their close relationship, and their identification, sometimes admitted by judicial practice, is critically assessed. The question of the period for disclosure of evidence was investigated, in respect of which it was concluded that provisions of the Code of Civil Procedure of the Russian Federation, although not quite specific, but sometimes quite definitely allow this period to be established. Taking into account the stance of the Supreme Court of the Russian Federation, then authors propose a solution to the problem of the consequences of non-disclosure of evidence in a civil case. The paper analyzes individual norms and institutions that allow the court to establish the circumstances of civil cases without evidence or on the basis of explanations of the other party. It is concluded that the norm of the second sentence of Part 1 of Art. 68 of the Code of Civil Procedure of the Russian Federation is neither a legal fiction nor an evidentiary presumption. This is one of the manifestations of the action of the general rule for the distribution of the duty of proof. The authors support and justify the position that the norm of Part 31 of Art. 70 of the Arbitration Procedure Code of the Russian Federation is an evidentiary presumption, and the presumption not of fact, but of evidence. In relation to Part 3 of Art. 79 of the Code of Civil Procedure of the Russian Federation, it is concluded that establishment of the facts by the court by applying this norm does not mean obtaining true knowledge about them. Therefore, this provision of the civil procedure law is applied in judicial practice with extreme care.

Ziada v. Gantz  and Eshel

2020 ◽  
Author(s):  
Kate Clark
Keyword(s):  
Civil Procedure ◽  
Case Note ◽  
Customary Law ◽  
State Sovereignty ◽  
Domestic Court ◽  
Functional Immunity ◽  
The Subject ◽  
International Laws ◽  
State Of Israel ◽  
Dutch Court

Abstract Civilians who bring claims against powerful states or their officials, for harm resulting from the conduct of war, face challenges that no single legal procedure can possibly overcome. Certain codified international laws outline specific protections for civilians, but this protective infrastructure stands in the shadow of two creatures of uncodified international customary law: state sovereignty and the immunity of states and their officials. The subject of this case note is a civil claim before a Dutch domestic court, against powerful officials of the state of Israel. The claimant, a Palestinian Dutch national, is attempting to sue the officials for the unlawful killing of six members of his family in the intentional bombing of their home in Gaza in 2014. In January 2020, he set out to establish the Dutch court’s jurisdiction based on an exceptional provision of the Dutch Code of Civil Procedure. This contribution argues that the Dutch court erred in allowing the asserted ‘functional immunity’ of the foreign officials to counter its own jurisdiction.

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