Pub Date : 2021-06-10DOI: 10.18572/1812-383x-2021-6-26-30
Svetlana V. Butenko
The article analyzes the current practice of state arbitration courts to issue disclosure orders for evidence confirming the volume of production and the cost of counterfeit goods. In some cases, rightholders interpret their right to demand evidence from an opponent extremely broadly and, by demanding information as such, but not evidence, actually transferring the burden of proof to the defendant, which conflicts with the adversarial principle of civil proceedings.
{"title":"A Judicial Request for Data on the Value and Quantity of Counterfeit within the Framework of the Adversariality Principle","authors":"Svetlana V. Butenko","doi":"10.18572/1812-383x-2021-6-26-30","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-26-30","url":null,"abstract":"The article analyzes the current practice of state arbitration courts to issue disclosure orders for evidence confirming the volume of production and the cost of counterfeit goods. In some cases, rightholders interpret their right to demand evidence from an opponent extremely broadly and, by demanding information as such, but not evidence, actually transferring the burden of proof to the defendant, which conflicts with the adversarial principle of civil proceedings.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"6 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":"126402995","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-2021-6-3-6
T. V. Yaroshenko
The issues of teaching civil procedural law (civil process) in the context of educational reform are considered; attention is paid to the Soviet period of teaching the discipline and the features of teaching in the modern period. The article touches upon new approaches to the methodology of teaching the civil process on the example of the Immanuel Kant Baltic Federal University.
{"title":"The Civil Procedure Teaching Methodology in the Education Reformation Conditions (on the Example of the Immanuel Kant Baltic Federal University)","authors":"T. V. Yaroshenko","doi":"10.18572/1812-383x-2021-6-3-6","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-3-6","url":null,"abstract":"The issues of teaching civil procedural law (civil process) in the context of educational reform are considered; attention is paid to the Soviet period of teaching the discipline and the features of teaching in the modern period. The article touches upon new approaches to the methodology of teaching the civil process on the example of the Immanuel Kant Baltic Federal University.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"8 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":"114988691","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-2021-6-7-11
D. Zaykov
Non-procedural appeals are the most important legal institution aimed at creating conditions for ensuring the implementation of the principle of independence of judges in the administration of justice. The article deals with the problems of legal regulation of non-procedural appeals, as well as relevant judicial practice.
{"title":"Extra-Procedural Appeals: An Analysis of the Legal Regulation and the Application Practice","authors":"D. Zaykov","doi":"10.18572/1812-383x-2021-6-7-11","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-7-11","url":null,"abstract":"Non-procedural appeals are the most important legal institution aimed at creating conditions for ensuring the implementation of the principle of independence of judges in the administration of justice. The article deals with the problems of legal regulation of non-procedural appeals, as well as relevant judicial practice.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"21 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":"127986094","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-2021-6-31-34
Elena A. Gnatko, Olga I. Marinenko
The authors have considered the amendments made by the legislator to the Civil Procedure Code of the Russian Federation concerning the abolition of a legal norm, according to which there was a possibility of canceling the ruling of a court of general jurisdiction to leave a statement of claim by filing a private complaint. It is concluded that this novelty of legislation prevents persons who believe that their rights and legitimate interests have been violated to timely protect their constitutional rights and legitimate interests.
{"title":"Ruling for Suspension of a Statement of Claim: The Content, Adoption and Cancellation Procedure","authors":"Elena A. Gnatko, Olga I. Marinenko","doi":"10.18572/1812-383x-2021-6-31-34","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-31-34","url":null,"abstract":"The authors have considered the amendments made by the legislator to the Civil Procedure Code of the Russian Federation concerning the abolition of a legal norm, according to which there was a possibility of canceling the ruling of a court of general jurisdiction to leave a statement of claim by filing a private complaint. It is concluded that this novelty of legislation prevents persons who believe that their rights and legitimate interests have been violated to timely protect their constitutional rights and legitimate interests.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"25 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":"123006182","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-2021-6-35-38
S. F. Afanasyev
The article analyzes the problem of revising court decisions that have entered into legal force on new circumstances in cases of persons who were not participants in constitutional proceedings. An important legal position of the Constitutional Court of the Russian Federation, which it recently formulated in the Resolution of June 26, 2020 No. 30-P, is being studied. The significance of this resolution for the further improvement of the civil procedural institute of revision of judicial acts that have entered into legal force on the basis of newly discovered or new circumstances is evaluated. The purpose of this study is to address individual issues related to the creation of an effective procedural mechanism for reviewing court decisions that have acquired legal force in relation to the subjects of material legal relations who did not take part in the constitutional proceedings. It is stated that such a mechanism should, on the one hand, guarantee the inadmissibility of any form of post-appeal appeal, which is generally focused on correcting legal errors made at the time of the consideration of the case on the merits, and on the other hand, ensure the nullification of the legal force of a judicial act. A comprehensive and complex theoretical and practical study of the chosen topic was carried out using general scientific (logical (induction, deduction, analysis and synthesis), systemic and functional) and private law (historical legal, formal legal, comparative legal) methods.
{"title":"On the Legal Meaning of Decree of the Constitutional Court of the Russian Federation No. 30-П for the Civil Procedure Institution of Reconsideration of Court Rulings upon Newly Discovered or New Evidence","authors":"S. F. Afanasyev","doi":"10.18572/1812-383x-2021-6-35-38","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-35-38","url":null,"abstract":"The article analyzes the problem of revising court decisions that have entered into legal force on new circumstances in cases of persons who were not participants in constitutional proceedings. An important legal position of the Constitutional Court of the Russian Federation, which it recently formulated in the Resolution of June 26, 2020 No. 30-P, is being studied. The significance of this resolution for the further improvement of the civil procedural institute of revision of judicial acts that have entered into legal force on the basis of newly discovered or new circumstances is evaluated. The purpose of this study is to address individual issues related to the creation of an effective procedural mechanism for reviewing court decisions that have acquired legal force in relation to the subjects of material legal relations who did not take part in the constitutional proceedings. It is stated that such a mechanism should, on the one hand, guarantee the inadmissibility of any form of post-appeal appeal, which is generally focused on correcting legal errors made at the time of the consideration of the case on the merits, and on the other hand, ensure the nullification of the legal force of a judicial act. A comprehensive and complex theoretical and practical study of the chosen topic was carried out using general scientific (logical (induction, deduction, analysis and synthesis), systemic and functional) and private law (historical legal, formal legal, comparative legal) methods.","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":"125153733","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-2021-6-49-53
E. Mikhaylova
The article raises the problem of the independence of judges who consider and resolve public law cases. Since a public law conflict is a dispute between a private person (citizen or organization) and the state represented by its bodies or officials regarding the exercise of power, the judge is actually a representative of one of the parties to the legal conflict (the state). In such conditions, it is difficult for him to maintain impartiality and independence. It is shown that it is necessary to distinguish between the categories of “court independence” and “judicial independence”. The constitutional principle of the separation of powers ensures the independence of the court as a state body, but not of a judge. It is proposed, first, to consider the independence of a judge in three aspects: from other authorities and officials; from the persons participating in the case and from other judges, including higher courts. In order to increase the independence of judges considering public law cases, it is also proposed to introduce the institution of administrative assessors into the Russian model of administration of justice (by analogy with arbitration and jury assessors). At the same time, it is advisable to revive the institution of civil liability of judges for the erroneousness of their decisions.
{"title":"Issues of the Implementation of the Principle of Independence of Judges in Review of Public Law Cases","authors":"E. Mikhaylova","doi":"10.18572/1812-383x-2021-6-49-53","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-49-53","url":null,"abstract":"The article raises the problem of the independence of judges who consider and resolve public law cases. Since a public law conflict is a dispute between a private person (citizen or organization) and the state represented by its bodies or officials regarding the exercise of power, the judge is actually a representative of one of the parties to the legal conflict (the state). In such conditions, it is difficult for him to maintain impartiality and independence. It is shown that it is necessary to distinguish between the categories of “court independence” and “judicial independence”. The constitutional principle of the separation of powers ensures the independence of the court as a state body, but not of a judge. It is proposed, first, to consider the independence of a judge in three aspects: from other authorities and officials; from the persons participating in the case and from other judges, including higher courts. In order to increase the independence of judges considering public law cases, it is also proposed to introduce the institution of administrative assessors into the Russian model of administration of justice (by analogy with arbitration and jury assessors). At the same time, it is advisable to revive the institution of civil liability of judges for the erroneousness of their decisions.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"11 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":"130038735","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-2021-6-44-48
D. Plotnikov
Digitalization as a phenomenon of our time affects the understanding of the essence of modern legal relations. This circumstance is a prerequisite for discussing the boundaries of the relationship between the legal and technical side in regulating certain aspects of the implementation of civil proceedings, the prospect of the introduction of the concept of digital procedural rights in scientific terms. At the same time, it is impossible to solve these issues in the conditions of digitalization without turning to the relationship of this concept with the principles of civil procedural law. In this regard, the author identifies modern trends in the understanding of principles in the doctrine of civil procedure law. Based on critical analysis, the author comes to conclusions about the main problematic issues that the modern science of civil procedure law faces when studying the interaction of digitalization and the principles of civil procedure law.
{"title":"Modern Tendencies of the Development of Civil Procedure Law Principles in the Conditions of Digitization of Procedural Relationships","authors":"D. Plotnikov","doi":"10.18572/1812-383x-2021-6-44-48","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-6-44-48","url":null,"abstract":"Digitalization as a phenomenon of our time affects the understanding of the essence of modern legal relations. This circumstance is a prerequisite for discussing the boundaries of the relationship between the legal and technical side in regulating certain aspects of the implementation of civil proceedings, the prospect of the introduction of the concept of digital procedural rights in scientific terms. At the same time, it is impossible to solve these issues in the conditions of digitalization without turning to the relationship of this concept with the principles of civil procedural law. In this regard, the author identifies modern trends in the understanding of principles in the doctrine of civil procedure law. Based on critical analysis, the author comes to conclusions about the main problematic issues that the modern science of civil procedure law faces when studying the interaction of digitalization and the principles of civil procedure law.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"31 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":"130482739","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 : 2021-05-20DOI: 10.18572/1812-383x-2021-5-22-26
Irina A. Pakharukova
The article analyzes the issues of the defendant’s defense against a class action including the period before and after the procedural reform. The author explores the question of the possibility of filing a counterclaim in group proceedings, and also analyses the objection as the main means of defense of the responding party against the class-action suit. The present study proposes a categorization of objections according to the legal result to which they are directed, and depending on the conditions of group proceedings against which objections can be filed. It is concluded that the most promising type of objections are objections to the condition of similarity of the actual circumstances underlying the rights of the group members and the obligations of the respondent. Based on the procedural doctrine and judicial practice, the options for objections to certain disputes are studied, and also a possible strategy for defending the defendant in group proceedings is modelled on the example of a specific case.
{"title":"Protection of a Defendant against a Class Action in Civil and Arbitral Procedures","authors":"Irina A. Pakharukova","doi":"10.18572/1812-383x-2021-5-22-26","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-5-22-26","url":null,"abstract":"The article analyzes the issues of the defendant’s defense against a class action including the period before and after the procedural reform. The author explores the question of the possibility of filing a counterclaim in group proceedings, and also analyses the objection as the main means of defense of the responding party against the class-action suit. The present study proposes a categorization of objections according to the legal result to which they are directed, and depending on the conditions of group proceedings against which objections can be filed. It is concluded that the most promising type of objections are objections to the condition of similarity of the actual circumstances underlying the rights of the group members and the obligations of the respondent. Based on the procedural doctrine and judicial practice, the options for objections to certain disputes are studied, and also a possible strategy for defending the defendant in group proceedings is modelled on the example of a specific case.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117282128","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 : 2021-05-20DOI: 10.18572/1812-383x-2021-5-12-16
Dmitriy A. Guziy
In the article the statutory concept of non-party interveners is analyzed from a new perspective. The author stands out the idea that substantive nexus of such persons doesn’t always occur with one of the parties only. It is drawn out and proved that it possibly occurs with both parties simultaneously, with the other non-party interveners. The author casts doubt on the prevailing abstract concept and proves that sometimes judgement may have an impact on rights and responsibilities of non-party interveners not nearly only in relation to one of the parties. The diversity of its potential substantive impact is drawn out. Distinguishing the issue in law with the disputed substantive legal matter the author concludes that non-party interveners may be subjects of the latter. Such aspect should be considered as constitutive feature of the relevant statutory concept.
{"title":"Third Parties Filing No Independent Claims with Respect to the Dispute Subject in the Civil Procedure Law: On the Way Towards the Formation of a New Legal Structure","authors":"Dmitriy A. Guziy","doi":"10.18572/1812-383x-2021-5-12-16","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-5-12-16","url":null,"abstract":"In the article the statutory concept of non-party interveners is analyzed from a new perspective. The author stands out the idea that substantive nexus of such persons doesn’t always occur with one of the parties only. It is drawn out and proved that it possibly occurs with both parties simultaneously, with the other non-party interveners. The author casts doubt on the prevailing abstract concept and proves that sometimes judgement may have an impact on rights and responsibilities of non-party interveners not nearly only in relation to one of the parties. The diversity of its potential substantive impact is drawn out. Distinguishing the issue in law with the disputed substantive legal matter the author concludes that non-party interveners may be subjects of the latter. Such aspect should be considered as constitutive feature of the relevant statutory concept.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129530884","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 : 2021-05-20DOI: 10.18572/1812-383x-2021-5-52-56
E. N. Kuznetsov
The article deals with the impact of information technology on the implementation of the right to the execution of judgments. The influence of the practice of the European Court of Human Rights on the implementation of this right is revealed. The features of the exercise of the right to performance in modern conditions of existing restrictions in connection with the spread of the new coronavirus infection (COVID-19) are analyzed. The ways of using information technologies in enforcement proceedings are proposed, which can affect the increase in the effectiveness of the implementation of the right to the execution of judgments.
{"title":"The Role of Information Technology in Exercising of the Right to Enforcement of Court Rulings in Modern Enforcement Proceedings","authors":"E. N. Kuznetsov","doi":"10.18572/1812-383x-2021-5-52-56","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-5-52-56","url":null,"abstract":"The article deals with the impact of information technology on the implementation of the right to the execution of judgments. The influence of the practice of the European Court of Human Rights on the implementation of this right is revealed. The features of the exercise of the right to performance in modern conditions of existing restrictions in connection with the spread of the new coronavirus infection (COVID-19) are analyzed. The ways of using information technologies in enforcement proceedings are proposed, which can affect the increase in the effectiveness of the implementation of the right to the execution of judgments.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126538225","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}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：