Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-51-55
N. V. Samsonov
In this article the author conducts a comparative study of the target attitudes of the civil procedure in Russia and France. We determine the hierarchy of target attitudes of the Russian civil law process. The article substantiates that strengthening the rule of law and law and order, prevention of offenses, the formation of a respectful attitude towards the law and the court are additional goals of civil proceedings, cannot be achieved separately from its main goal — the protection of violated rights, freedoms and legitimate interests of persons whose dispute is subject to consideration in court. We note the commonality of the main goal of the Russian civil and arbitration processes, as well as administrative proceedings. We reveal the implicitly fixed goals and objectives of civil proceedings in France. We make the conclusion about the similarity of the goals of the French justice in civil cases, hidden in the national law, and the goals of the Russian civil procedure directly enshrined in the law.
{"title":"Aims of the Civil Procedure in Russia and France: Common Features and Differences","authors":"N. V. Samsonov","doi":"10.18572/1812-383x-2022-1-51-55","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-51-55","url":null,"abstract":"In this article the author conducts a comparative study of the target attitudes of the civil procedure in Russia and France. We determine the hierarchy of target attitudes of the Russian civil law process. The article substantiates that strengthening the rule of law and law and order, prevention of offenses, the formation of a respectful attitude towards the law and the court are additional goals of civil proceedings, cannot be achieved separately from its main goal — the protection of violated rights, freedoms and legitimate interests of persons whose dispute is subject to consideration in court. We note the commonality of the main goal of the Russian civil and arbitration processes, as well as administrative proceedings. We reveal the implicitly fixed goals and objectives of civil proceedings in France. We make the conclusion about the similarity of the goals of the French justice in civil cases, hidden in the national law, and the goals of the Russian civil procedure directly enshrined in the law.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114587893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-14-18
Anna F. Mescheryakova
The article is devoted to the study of the institution of counterclaim in the arbitration process. The problems that arbitration courts face when deciding whether to accept a counterclaim and consider it are analyzed. Special attention is paid to the correlation of the terms of possible counterclaim with the terms of consideration of the case and the abuse of the right to file a counterclaim. Practical recommendations have been developed to address the gaps in the legal regulation of these issues.
{"title":"Problems of the Counter Claim Institution in an Arbitral Procedure","authors":"Anna F. Mescheryakova","doi":"10.18572/1812-383x-2022-1-14-18","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-14-18","url":null,"abstract":"The article is devoted to the study of the institution of counterclaim in the arbitration process. The problems that arbitration courts face when deciding whether to accept a counterclaim and consider it are analyzed. Special attention is paid to the correlation of the terms of possible counterclaim with the terms of consideration of the case and the abuse of the right to file a counterclaim. Practical recommendations have been developed to address the gaps in the legal regulation of these issues.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114756021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-41-45
Anatoly Mironov, Yulia P. Mironova
The article analyzes the legal nature of the status of a citizen’s debt, which is considered to be repaid as a result of bankruptcy proceedings. The article considers the relationship between the purpose of bankruptcy legislation and the general rule on the release of a citizen from fulfilling obligations to creditors. The shortcomings of legislation and acts of generalization of judicial practice are revealed, creating prerequisites for violation of the rights and legitimate interests of a bankrupt citizen. Specific legal conflicts and gaps that contribute to the incorrect interpretation of legislation by creditors are highlighted. An assessment is given of the legality of the assignment of the right of claim in relation to the repaid debt, as well as the legality of measures to recover it. Practical recommendations are offered to prevent violations of the current legislation related to succession in relation to the debt of a bankrupt.
{"title":"Uncollectible Debt of an Individual Bankrupt: Shortcomings of the Legal Regulation and the Law Implementation Practice","authors":"Anatoly Mironov, Yulia P. Mironova","doi":"10.18572/1812-383x-2022-1-41-45","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-41-45","url":null,"abstract":"The article analyzes the legal nature of the status of a citizen’s debt, which is considered to be repaid as a result of bankruptcy proceedings. The article considers the relationship between the purpose of bankruptcy legislation and the general rule on the release of a citizen from fulfilling obligations to creditors. The shortcomings of legislation and acts of generalization of judicial practice are revealed, creating prerequisites for violation of the rights and legitimate interests of a bankrupt citizen. Specific legal conflicts and gaps that contribute to the incorrect interpretation of legislation by creditors are highlighted. An assessment is given of the legality of the assignment of the right of claim in relation to the repaid debt, as well as the legality of measures to recover it. Practical recommendations are offered to prevent violations of the current legislation related to succession in relation to the debt of a bankrupt.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132675886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-01-27DOI: 10.18572/1812-383x-2022-1-11-14
N. Artebyakina
The article provides a comparative characteristic of the institution of persons participating in the case, three branches of Russian law: civil procedural, arbitration procedural and administrative procedural law. The greatest similarity of institutions is observed in the RF CPC and RF APC. However, neither in the Code of Civil Procedure of the Russian Federation, nor in the Arbitration Procedure Code of the Russian Federation, among the persons participating in the case, the recoverer and the debtor in cases on the issuance of a court order are not named. The content of the norms of the CAS RF, at first glance, allows us to conclude that the decision on the composition of persons participating in the case is quite logical and agreed with the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation. However, the analysis of the norms of this institution within the framework of the CAS RF leads to the opposite result: the author considers it incorrect to use the terms “parties”, “plaintiff”, “defendant” in relation to participants in legal proceedings when considering “public cases”. An assessment of the institution of persons participating in the case in cases of administrative offenses is given.
{"title":"On the Need for the Unification of Provisions of the Institution of Parties to a Case in Procedural Branches of Russian Law","authors":"N. Artebyakina","doi":"10.18572/1812-383x-2022-1-11-14","DOIUrl":"https://doi.org/10.18572/1812-383x-2022-1-11-14","url":null,"abstract":"The article provides a comparative characteristic of the institution of persons participating in the case, three branches of Russian law: civil procedural, arbitration procedural and administrative procedural law. The greatest similarity of institutions is observed in the RF CPC and RF APC. However, neither in the Code of Civil Procedure of the Russian Federation, nor in the Arbitration Procedure Code of the Russian Federation, among the persons participating in the case, the recoverer and the debtor in cases on the issuance of a court order are not named. The content of the norms of the CAS RF, at first glance, allows us to conclude that the decision on the composition of persons participating in the case is quite logical and agreed with the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation. However, the analysis of the norms of this institution within the framework of the CAS RF leads to the opposite result: the author considers it incorrect to use the terms “parties”, “plaintiff”, “defendant” in relation to participants in legal proceedings when considering “public cases”. An assessment of the institution of persons participating in the case in cases of administrative offenses is given.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114069374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-10DOI: 10.18572/1812-383x-2021-6-16-20
E. Potapenko
The article proves the need to prepare a case for trial as an obligatory stage in the civil process. In present times there is an ineffective implementation of the norms regulating the preparation of a case for trial, norms are ignored during legal proceedings in specific civil cases. One of the factors for this problem is a lack of clarity and consistent legal regulation. Many procedural norms, related to the implementation of preparatory procedures, are set out in the framework of other institutions (proof, filing a claim). Within the law norms on preparation constitute underdeveloped complexes that represent a large degree of discretion to the court; the institution of preparation is not structured. The author proposes both a normative adjustment of the rules for preparing a case and the improvement of this institution through the law-interpretation activity of the judicial authorities.
{"title":"Optimization of the Legal Regulation of Preparation of a Civil Case for Hearing","authors":"E. Potapenko","doi":"10.18572/1812-383x-2021-6-16-20","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-16-20","url":null,"abstract":"The article proves the need to prepare a case for trial as an obligatory stage in the civil process. In present times there is an ineffective implementation of the norms regulating the preparation of a case for trial, norms are ignored during legal proceedings in specific civil cases. One of the factors for this problem is a lack of clarity and consistent legal regulation. Many procedural norms, related to the implementation of preparatory procedures, are set out in the framework of other institutions (proof, filing a claim). Within the law norms on preparation constitute underdeveloped complexes that represent a large degree of discretion to the court; the institution of preparation is not structured. The author proposes both a normative adjustment of the rules for preparing a case and the improvement of this institution through the law-interpretation activity of the judicial authorities.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129831097","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-10DOI: 10.18572/1812-383x-2021-6-12-15
Yuriy V. Malinskiy
Justice of the Peace of Judicial District No. 1 for Sibay, the Republic of Bashkortostan The article is referred to the issues of access to justice in the system of justice of the peace. The importance and applicability of the given subject are being regarded. Main problems in this sphere are being discussed. Much attention is payed to the analysis of scientific legal literature on the subject of research. Furthermore, the factors influencing the access to justice are being mentioned. In conclusion, measures directed to the actualization of the access are being recited.
{"title":"Availability of Justice in the Commercial Court System and the Conditions for Its Implementation","authors":"Yuriy V. Malinskiy","doi":"10.18572/1812-383x-2021-6-12-15","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-12-15","url":null,"abstract":"Justice of the Peace of Judicial District No. 1 for Sibay, the Republic of Bashkortostan The article is referred to the issues of access to justice in the system of justice of the peace. The importance and applicability of the given subject are being regarded. Main problems in this sphere are being discussed. Much attention is payed to the analysis of scientific legal literature on the subject of research. Furthermore, the factors influencing the access to justice are being mentioned. In conclusion, measures directed to the actualization of the access are being recited.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129259304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-10DOI: 10.18572/1812-383x-2021-6-21-25
Kristina A. Shiryaeva
The article deals with the formation of the concept of objectivity in various historical periods. The article analyzes the definitions of objectivity as a goal, a principle of civil proceedings and requirements for a court. As a result of the work, a conclusion is drawn about the complex content of objectivity as a requirement for the personality of a judge, participants in civil proceedings and a court decision.
{"title":"The Establishment and Development of Objectivity in Civil Proceedings","authors":"Kristina A. Shiryaeva","doi":"10.18572/1812-383x-2021-6-21-25","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-21-25","url":null,"abstract":"The article deals with the formation of the concept of objectivity in various historical periods. The article analyzes the definitions of objectivity as a goal, a principle of civil proceedings and requirements for a court. As a result of the work, a conclusion is drawn about the complex content of objectivity as a requirement for the personality of a judge, participants in civil proceedings and a court decision.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114216094","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-10DOI: 10.18572/1812-383x-2021-6-58-60
Natalya B. Malyavina
In this article, the author analyzes the theory of civil law on the obligations associated with the supply contract, namely on the consistency of the subject of the supply contract, examines judicial practice and gives specific examples to justify the possibility of avoiding the recognition of the subject of the contract by the court as inconsistent, and as a consequence of the recognition by the court delivery contract not concluded. The author notes that the subject of the contract should be indicated most specifically, the parties should be careful about the classification of the goods, take into account national and international standards when agreeing on the subject of the contract, pay close attention to the quantity of goods and the rules for indicating it as a condition of the contract. The author points out the insignificance of differentiating goods on the basis of an individually defined thing and a generic one, arguing that the courts are equally demanding in the specification of the goods. The author, considering certain issues from judicial practice, gives recommendations for agreeing on the subject of the supply agreement, gives specific formulations of the terms of the supply agreement, which make it possible to recognize the subject of the agreement as agreed. As a result, the author recommends to the parties to the supply agreement, in order to avoid recognizing the supply agreement as not concluded, the parties need to formulate the subject of the agreement as clearly as possible, namely the conditions for the name and quantity of the supplied goods.
{"title":"Why Should Parties to a Supply Agreement Be Attentive: Issues of the Consistency of the Subject Matter and Terms and Conditions","authors":"Natalya B. Malyavina","doi":"10.18572/1812-383x-2021-6-58-60","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-58-60","url":null,"abstract":"In this article, the author analyzes the theory of civil law on the obligations associated with the supply contract, namely on the consistency of the subject of the supply contract, examines judicial practice and gives specific examples to justify the possibility of avoiding the recognition of the subject of the contract by the court as inconsistent, and as a consequence of the recognition by the court delivery contract not concluded. The author notes that the subject of the contract should be indicated most specifically, the parties should be careful about the classification of the goods, take into account national and international standards when agreeing on the subject of the contract, pay close attention to the quantity of goods and the rules for indicating it as a condition of the contract. The author points out the insignificance of differentiating goods on the basis of an individually defined thing and a generic one, arguing that the courts are equally demanding in the specification of the goods. The author, considering certain issues from judicial practice, gives recommendations for agreeing on the subject of the supply agreement, gives specific formulations of the terms of the supply agreement, which make it possible to recognize the subject of the agreement as agreed. As a result, the author recommends to the parties to the supply agreement, in order to avoid recognizing the supply agreement as not concluded, the parties need to formulate the subject of the agreement as clearly as possible, namely the conditions for the name and quantity of the supplied goods.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122257067","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-10DOI: 10.18572/1812-383x-2021-6-54-57
P. D. Shkurova
The modern consolidation of the institute of written evidence, as one of the means of proof, is largely due to the historical and national features of the Russian state. Despite the fact that written evidence among all the existing means of evidence appeared last, at present they have acquired very serious evidentiary value. At the same time, this article does not set the task of considering the entire history of evidence law, since it is not possible to do this in the framework of the present work. In the context of this article, it is proposed by analyzing procedural rules, from ancient times to modern times, to trace the appearance and establishment of written evidence in the civil process of Russia.
{"title":"The Evolution of the Development of the Theory and Laws Regulating Written Evidence","authors":"P. D. Shkurova","doi":"10.18572/1812-383x-2021-6-54-57","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-54-57","url":null,"abstract":"The modern consolidation of the institute of written evidence, as one of the means of proof, is largely due to the historical and national features of the Russian state. Despite the fact that written evidence among all the existing means of evidence appeared last, at present they have acquired very serious evidentiary value. At the same time, this article does not set the task of considering the entire history of evidence law, since it is not possible to do this in the framework of the present work. In the context of this article, it is proposed by analyzing procedural rules, from ancient times to modern times, to trace the appearance and establishment of written evidence in the civil process of Russia.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116454649","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-06-10DOI: 10.18572/1812-383x-2021-6-39-43
Elena M. Kobzarenko
The article examines the procedural features of determining the jurisdiction of disputes on the protection of honor, dignity and business reputation, considered by the courts of general jurisdiction, taking into account the elements of the claim, its characteristic features, provides specific examples of judicial practice on the issue of determining the competent court, generic (substantive), territorial jurisdiction of a dispute on protection against defamation, substantiates the need to change the rules of jurisdiction of claims against the media and owners of sites on the Internet. The author formulated specific proposals aimed at changing the rules on the jurisdiction of defamation disputes, referring such claims to an alternative jurisdiction at the choice of the plaintiff.
{"title":"Procedural Peculiarities of the Jurisdiction of Defamation Disputes Reviewed by General Jurisdiction Courts","authors":"Elena M. Kobzarenko","doi":"10.18572/1812-383x-2021-6-39-43","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-39-43","url":null,"abstract":"The article examines the procedural features of determining the jurisdiction of disputes on the protection of honor, dignity and business reputation, considered by the courts of general jurisdiction, taking into account the elements of the claim, its characteristic features, provides specific examples of judicial practice on the issue of determining the competent court, generic (substantive), territorial jurisdiction of a dispute on protection against defamation, substantiates the need to change the rules of jurisdiction of claims against the media and owners of sites on the Internet. The author formulated specific proposals aimed at changing the rules on the jurisdiction of defamation disputes, referring such claims to an alternative jurisdiction at the choice of the plaintiff.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"32 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127982185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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