Digitization of Civil Legal Proceedings in the Russian Federation

This work is an analysis of legal trends in the administration of justice and the judicial system of the Russian Federation. Among the main trends, the authors observe an increase in the number of civil cases considered on the merits by both commercial courts and general jurisdiction courts. The authors also analyze some opportunities for increasing the level of integration of digital technologies in the legal environment of the Russian Federation. One of the triggers capable of catalyzing this process is the COVID-19 pandemic. Moreover, the transformations in the administration of justice that require online court trials using the Internet are analyzed, and some foreign experience in implementing such a format of court trials is considered. The authors also assess in this article the impact of judicial reforms in 2019 on the dynamics of the administration of justice.

Online Hearings in Proceedings before International Commercial Courts

The paper presents analysis of the use of online hearings in proceedings before international commercial courts. International commercial courts are not a new phenomenon, with the Commercial Court of England and Wales having been established in London already in 1895. What is new is the increased prominence of such courts over the last six years. The article focuses on three jurisdictions in Europe: Germany, France, and the Netherlands. The author examines to what extent communication technologies are being used in proceedings before international commercial courts in Europe and also whether – and, if so, how – the COVID 19 pandemic has affected this. The overall finding is that there has been increased demand for video hearings since the beginning of the pandemic, if not earlier. The article is focused primarily on cross-border taking of evidence by means of videoconferencing. In this context, it highlights the changes in the recast of the Taking of Evidence Regulation. The author concludes that the commercial courts presented will most likely not benefit from the recast.

THE JUDICIAL POWER LIMITATION OF COMMERCIAL COURTS COMPETENCY IN COMMERCIAL DISPUTES

One of the important instruments in a state of law is the existence of an independent judiciary, whether it is based on the doctrine of separation of powers, the notion of a state based on law or democracy. An independent judicial power is not absolute in the sense that it is free to lead to arbitrariness so that there must be restrictions on that power and freedom. The approach method is used a normative juridical approach. The results of the study found that the limitations of judicial power were based on the constitutional basis, namely Article 1 paragraph 3 of the 1945 Constitution, Article 24 of the 1945 Constitution and Article 24 A of the 1945 Constitution. From the concept of separation or division of powers, compose an independent judicial power which is exercised by a Supreme Court and judicial bodies under it and a Constitutional Court. The commercial court as a sub-system within the judicial power is a special court under the general judiciary that has different competencies from other general courts. The implementation of the limitation of judicial power in the competence of the commercial court to realize an independent judicial power is normatively spread out in various laws.

ACTIVITIES OF COMMERCIAL COURTS IN THE RUSSIAN EMPIRE IN THE LATE XIX AND EARLY XX CENTURIES

At the end of the XIX century the activities of commercial courts was characterized by a decrease in the number of cases. Purpose: to review the problem of the development and functioning of commercial courts as judicial institutions in the late XIX and early ХХ centuries. Methods: the author uses dialectical, historical, comparison, description methods. Results: the paper shows that in 1892 at the Ministry of Justice of the Russian Empire the Special meeting on problems of commercial courts where the main problem what to do further with commercial courts as Institute of judicial power began to function. The paper analyzes the activities of a higher instance, The Commission for the revision of legal provisions on the judicial part of the State Council. The paper shows that in the period of counter-reforms there was a change in the position of the ruling elite of the Russian Empire on the future fate of commercial courts. It is emphasized that commercial courts, formed largely with the participation of the merchant community and in this regard, incorruptible, began to prevent many representatives of the ruling elite from deriving profits from ties to large capital, which did not facilitate commercial litigation.

Abuse in the Distribution of Property of a Liquidated Corporation: Judicial and Legal Aspect

Given the rapid development of corporate legislation, it is necessary to determine the boundaries of acceptable behavior when carrying out the procedure for distributing discovered property of a liquidated legal entity. The relevance of the topic is supported by both the increase in the number of applications for the appointment of the procedure received by commercial courts, especially during the economic downturn, and the increase in the number of abuses aimed at taking possession of the property of the corporation. There are gaps in the legal regulation of certain issues of the procedure: the circle of persons, the right to submit an application, the conditions of appointment, and control over the procedure. Stakeholders find opportunities to circumvent the law, leading to new types of abuse. In the absence of detailed legislative regulation, review of practice and clarifications of the Plenum of the Supreme Court of the Russian Federation, courts have to form judicial practice based on the circumstances of specific cases, which leads to contradictions in judicial practice. The stated problem is considered from the standpoint of its corporate component, while the author departs from the traditional circle of subjects of corporate law and examines abuses that can be committed by both participants and management, creditors and even an arbitrazh receiver. The paper lists the main types of abuse of rights, the definition of abuse of rights is proposed. The study is based on a comprehensive analysis of judicial practice related to the consideration of cases by commercial courts on applications for the appointment of a procedure.

BANKRUPTCY OF INDIVIDUALS: PROBLEMS OF THEORY AND PRACTICE

One of the main novelties of the Code of Ukraine on Bankruptcy Procedures was the introduction in Ukraine of the institution of bankruptcy of individuals, which was a long-awaited event among scientists and practitioners. It has been more than a year since the introduction of the institution of bankruptcy of individuals in Ukraine, and in some Economic Courts there are not even 10 cases of insolvency of individuals. There are many reasons for this: the high cost of the procedure, the complexity of paperwork to open proceedings, as well as a number of problematic and conflicting issues that arise in practice relevant legislative provisions. The purpose of the article is to identify problematic aspects in the legal regulation of bankruptcy of individuals and the practice of applying the relevant provisions of the Code of Ukraine on Bankruptcy Procedures, as well as to develop proposals to improve legislation in this area. Given the relatively small number of lawsuits to restore the solvency of individuals in Economic Courts, today it is necessary to state the lack of a unified approach of national commercial courts to most of the problematic issues that arise during the consideration of this category of cases. It is emphasized that since the opening of insolvency proceedings, the debtor — an individual and his family members are under the close attention of the Economic Court and the arbitral trustee, who must examine in detail all the circumstances that caused the insolvency of an individual. Based on the analysis of case law, it is established that the practice of most Economic Courts, especially Appellate, shows the absence of a legal requirement to pay court fees by the debtor for filing an application to open insolvency proceedings, and the application of requirements to the application to open proceedings insolvency of an individual of the general requirements provided for in Art. 34 of the Code of Ukraine on Bankruptcy Procedures, is inappropriate in this part. Prohibition of the debtor’s departure abroad is a measure to ensure creditors’ claims, which should not be applied automatically in all cases, but only when it is proved that the debtor intentionally acted to prevent the procedures provided for him by the Code of Ukraine on Bankruptcy Procedures. As a result of the study, the author concludes that an individual entrepreneur has a number of unjustified preferences, compared to legal entities, to initiate bankruptcy proceedings, which is not fair in terms of equality of all entities and causes unequal position of creditors of legal entities and creditors of individuals — entrepreneurs.

REACTIVATION OF SEPARATE PROCEDURE IN ECONOMIC MATTER PERFORMED BY THE ACT OF JULY 04, 2019 IN THE LIGHT OF THE CONSTITUTIONA PRINCIPLE OF THE RIGHT TO A COURT

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. Among all the novelties introduced by the Act of July 4, 2019, the reactivation of separate proceedings in economic cases is particularly high. It is worth recalling here that separate proceedings in commercial cases were introduced into the Code of Civil Procedure on October 1, 1989 under the Act on the examination of commercial cases by courts. It was abolished on May 3, 2012, while separate commercial courts and a separate concept of an economic case were retained, therefore commercial courts heard commercial cases in “ordinary” proceedings. The initiators of the amendment pointed to the fact that the statistical indicators of the evaluation of the work of commercial courts indicate that this court procedure for resolving commercial disputes did not meet the requirements of economic transactions

Relational analysis of the international commercial court and international arbitration to improve the legal environment for resolving international business disputes

Business is becoming more and more globalised, resulting in increased competitiveness, which drives down prices and provides a greater variety of choice for consumers. However, there are also challenges presented by the globalisation of businesses and international commercial courts across the globe exist to navigate these issues. Globalised businesses are subject to the legal judgements of the country in which they are based, as well as the legal judgements of the countries in which they operate. Therefore, the presence of international commercial courts is crucial for promoting the use of international arbitration and international alternative dispute resolutions (ADR), in which disputes are resolved outside of court. Professor Akira Saito, Graduate School of Law, Kobe University, Japan, is exploring the relationship between international commercial courts and international arbitration with the goal of improving the legal environment in different countries and resolving international business disputes. Discussions with his mentor, Professor Oliver Williamson, University of California, led Saito to this project, which is an interdisciplinary study of law that is seeking to develop the next generation of lawyers and business people with a well-rounded perspective of the legal system and the ability to utilise it in a manner that helps develop business activities.

Legal and Practical Conditionality of the Prosecutor’s Participation in the Consideration of Administrative Off enses Cases in Commercial Courts

The paper examines the prosecutor’s role in the administrative jurisdictional proceedings in a commercial court. The author provides numerous examples from prosecutorial and judicial practice, reflecting the activities of prosecutors to strengthen the rule of law through participation in commercial litigation. The paper also indicates the requirements imposed by legislation, organizational and administrative documents of the General Prosecutor’s Office of the Russian Federation and the prosecutor’s offices of the constituent entities for the work of prosecutors in this direction. Based on statistical data on the number of cases initiated by prosecutors and the corresponding cases considered by the courts, the role of the prosecutor in the consideration of cases of the analyzed category by the courts is determined. According to the results of the study, the author points out the shortcomings of certain provisions of the law, determines the need to improve the theoretical foundations of the participation of the prosecutor in the consideration of cases of administrative offenses in commercial courts, emphasizes that changing the procedure for legal regulation of the participation of the prosecutor in commercial litigation is necessary in connections with changing social relations, and the preservation of the existing order gives rise to stagnation in the development of procedural legislation.