Limits of judicial discretion in civil proceedings: to the formulation of the question

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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ABOUT JUDICIAL DISCRETION AT CONSIDERING PERIOD DETERMINATION OF THE CASE BY COURT IN CIVIL PROCEEDINGS

Current Issues of the State and Law ◽

10.20310/2587-9340-2019-3-9-89-98 ◽

2019 ◽

pp. 89-98

Author(s):

Aleksandr Dmitriyevich Zolotukhin ◽

Lyudmila Anatolyevna Volchikhina

Keyword(s):

Judicial Review ◽

Judicial Discretion ◽

Procedural Law ◽

Civil Proceedings ◽

Civil Cases ◽

The Right ◽

Judicial Protection ◽

Proper Consideration

In civil proceedings, the legislator defines two conditions that ensure the process of judicial review and resolution of cases: the condition for proper consideration, resolution of civil cases and the condition for timely consideration and civil cases resolution. Proper consideration and resolution of cases involves compliance with the substantive and procedural law requirements. Timely consideration and resolution of cases involves compliance with the court terms of their consideration and resolution. Each of these conditions ensures the right of the persons concerned to judicial protection. Examining these conditions compliance process, we came to the conclusion that the fulfillment by the judge of the condition of compliance with the terms consideration and cases resolution for which he bears disciplinary responsibility, is achieved by his failure to meet the conditions of proper consideration and resolution of cases in terms of compliance with the procedural rules of their consideration and resolution, which entails violations of the right of interested persons to judicial protection. To solve this problem, we propose in civil proceedings to give the court the right to determine the period of consideration of the case at its discretion, based on the criteria of its reasonableness determined by the legislator.

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LEGAL CERTAINTY AS AN EVALUATIVE CATEGORY IN CIVIL PROCEEDINGS

Russian-Asian Legal Journal ◽

10.14258/ralj(2019)4.1 ◽

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.

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How Judges Can Think: The Use of Expert’s Knowledge as Proof in Civil Proceedings

Global Jurist ◽

10.1515/gj-2017-0027 ◽

2017 ◽

Vol 18 (1) ◽

Author(s):

Marcello Gaboardi

Keyword(s):

Scientific Knowledge ◽

Judicial Discretion ◽

Natural Phenomena ◽

Expert Evidence ◽

Theoretical Possibility ◽

Civil Proceedings ◽

The Common ◽

The Individual ◽

Case Basis

Abstract The classic account of the role of expert in civil proceedings revolves around a crucial notion. The idea is that the role the expert plays is correlated with an evident lack of technical or scientific knowledge within the context of the judiciary. Such an approach involves several questions ranging from how to perceive the need to supplement the basic judicial knowledge to whether there is such a thing as a binding aspect in the expert evidence. For civil lawyers the expert needs to be appointed depending on judicial discretion. The appointment of expert requires judicial evaluation on a case-by-case basis. Whether or not the attorneys encourage the judge to appoint an expert, the court remains capable of recognizing that certain facts are more likely candidates to a technical or scientific assessment. If the judge is persuaded that the case can be decided regardless the opinion of an expert, the decision can be based solely on the judicial knowledge and skills. On the contrary, the common law tradition leaves the attorneys with a burden of submitting to the court the technical or scientific knowledge they deem necessary for the judgment. In this different perspective, the judge is basically called upon to evaluate the expert witnesses and select their convincing statements through the cross-examination of the parties. In both systems, the crucial question is how technical or scientific knowledge can be translated for legal decisionmaking. The judge and the expert use different languages and approach the factual questions very differently. Scientists offer empirical research studies and make general statements about natural phenomena; lawyers focus their attention on the individual decisionmaking required in the courtroom. Nonetheless, disputes involving technical or scientific issues make it inevitable that the judge and the expert face with the problem of mutual understanding. The way in which legal scholars have usually managed those differences is by adopting a structured cooperation between the judge and the expert. By construing such a relationship as a form of mutual training, they find some room for warranting an effective gatekeeping role to the judge. But such a cooperation is more a theoretical possibility than a pragmatic opportunity. Instead, reshaping the expert evidence into a lay judge can offer a concrete opportunity to entrench the scientific or technical knowledge of the court in several cases.

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