Pub Date : 2021-03-04DOI: 10.18572/1812-383x-2021-3-13-17
N. Gribov
The article is dealing with the contradictory behavior of participants in the civil process. The author, based on an analysis of foreign and domestic legislation and the practice of its application, concludes that the two doctrines are used to indicate the prohibition of conflicting behavior: estoppel and venire contra factum proprium. These doctrines are different in their legal nature, although in modern Russian they are used as synonyms. Additionally, in this study the author identified elements of the prohibition of conflicting behavior and noted its difference from other similar legal institutes.
{"title":"Inconsistent Behavior of Parties to a Case","authors":"N. Gribov","doi":"10.18572/1812-383x-2021-3-13-17","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-3-13-17","url":null,"abstract":"The article is dealing with the contradictory behavior of participants in the civil process. The author, based on an analysis of foreign and domestic legislation and the practice of its application, concludes that the two doctrines are used to indicate the prohibition of conflicting behavior: estoppel and venire contra factum proprium. These doctrines are different in their legal nature, although in modern Russian they are used as synonyms. Additionally, in this study the author identified elements of the prohibition of conflicting behavior and noted its difference from other similar legal institutes.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"518 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134012699","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 : 2021-03-04DOI: 10.18572/1812-383x-2021-3-44-48
Yu. A. Timofeev
The principle of voluntariness of participation in the conciliation procedure, with passive behavior of the parties, should not act as an obstacle for the initial appeal of the parties to the judicial conciliator to discuss the prospects for a peaceful settlement of the dispute and conduct judicial conciliation. Such an appeal should be initiated by the court when it detects the possibility of reconciliation of the parties and there are no objections of the parties, or by virtue of a direct indication in the law on the need for a conciliation procedure in certain categories of cases.
{"title":"Judicial Conciliation: Problems and Prospects","authors":"Yu. A. Timofeev","doi":"10.18572/1812-383x-2021-3-44-48","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-3-44-48","url":null,"abstract":"The principle of voluntariness of participation in the conciliation procedure, with passive behavior of the parties, should not act as an obstacle for the initial appeal of the parties to the judicial conciliator to discuss the prospects for a peaceful settlement of the dispute and conduct judicial conciliation. Such an appeal should be initiated by the court when it detects the possibility of reconciliation of the parties and there are no objections of the parties, or by virtue of a direct indication in the law on the need for a conciliation procedure in certain categories of cases.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130066027","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 : 2021-03-04DOI: 10.18572/1812-383x-2021-3-8-12
A. A. Tokareva
The article studies the legal nature of the right to claim in the aspect of the unity of substantive and procedural features. In addition, the right to choose a claim is disclosed in cases of competition of claims, which is important not only in theoretical but also in practical terms. In order to form a comprehensive understanding of the essence of the right to claim and its implementation in the competition of claims, general scientific and private law (historical-legal, formal-legal, comparative-legal) methods are used. It is proved that the right to claim is a complex category, the content of which includes the right to sue (first) and the right to satisfy a claim (second) as different but correlative concepts. It is noted that the uniqueness of both powers of claim is manifested in the conditions (prerequisites) for their occurrence and implementation, which are divided into general (universal) and special. In addition, the issue of the exercise of the right to claim in the context of competition of claims is raised, the criteria for choosing the appropriate method for the protection of violated or disputed rights and interests protected by law are highlighted. It is concluded that leveling the competition of claims requires the development of a special, most effective strategy for exercising the right to claim.
{"title":"On the Exercise of the Right of Suit in the Context if the Choice of Cause of Action","authors":"A. A. Tokareva","doi":"10.18572/1812-383x-2021-3-8-12","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-3-8-12","url":null,"abstract":"The article studies the legal nature of the right to claim in the aspect of the unity of substantive and procedural features. In addition, the right to choose a claim is disclosed in cases of competition of claims, which is important not only in theoretical but also in practical terms. In order to form a comprehensive understanding of the essence of the right to claim and its implementation in the competition of claims, general scientific and private law (historical-legal, formal-legal, comparative-legal) methods are used. It is proved that the right to claim is a complex category, the content of which includes the right to sue (first) and the right to satisfy a claim (second) as different but correlative concepts. It is noted that the uniqueness of both powers of claim is manifested in the conditions (prerequisites) for their occurrence and implementation, which are divided into general (universal) and special. In addition, the issue of the exercise of the right to claim in the context of competition of claims is raised, the criteria for choosing the appropriate method for the protection of violated or disputed rights and interests protected by law are highlighted. It is concluded that leveling the competition of claims requires the development of a special, most effective strategy for exercising the right to claim.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116105621","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 : 2021-02-11DOI: 10.18572/1812-383x-2021-2-36-40
Yuriy A. Kantser
In the context of restrictive measures, procedural mechanisms that allow the use of e-justice resources came in handy. The courts introduce special conditions for the reception of citizens, meetings are recommended to be transferred to a remote format, the work of commercial organizations is carried out remotely or according to special schedules, the elementary movement of representatives of the parties to the dispute across the country is complicated, which means that getting to the court session is often difficult. In this regard, the discussion of the elements of electronic justice that have already been introduced into procedural legislation and those that have appeared again (familiarization with the case materials at a distance, online meeting) is highly relevant.
{"title":"Electronic Justice in an Arbitration Procedure: New Challenges and Adaptation of Judicial Proceedings","authors":"Yuriy A. Kantser","doi":"10.18572/1812-383x-2021-2-36-40","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-2-36-40","url":null,"abstract":"In the context of restrictive measures, procedural mechanisms that allow the use of e-justice resources came in handy. The courts introduce special conditions for the reception of citizens, meetings are recommended to be transferred to a remote format, the work of commercial organizations is carried out remotely or according to special schedules, the elementary movement of representatives of the parties to the dispute across the country is complicated, which means that getting to the court session is often difficult. In this regard, the discussion of the elements of electronic justice that have already been introduced into procedural legislation and those that have appeared again (familiarization with the case materials at a distance, online meeting) is highly relevant.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117270976","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 : 2021-02-11DOI: 10.18572/1812-383x-2021-2-28-30
Aleksey I. Artizanov
The Institute of simplified proceedings was introduced into the civil procedure legislation in March 2016 and was to increase justice availability, court procedures optimization, its precipitation and simplification. It certainly corresponds to the basic postulates of procedural economy principles, which in turn imply the effectiveness of the court’s protection of citizens’ violated rights and freedoms by saving financial and necessary for the case consideration time resources. This article is devoted to analysis of the Institute of simplified proceedings, problems associated with procedural rules application in the context of the procedural economy principle, as well as improving this procedural institution ability.
{"title":"The Improvement of the Summary Jurisdiction Procedure in the Russian Civil Proceedings for the Implementation of the Principles of Procedural Economy","authors":"Aleksey I. Artizanov","doi":"10.18572/1812-383x-2021-2-28-30","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-2-28-30","url":null,"abstract":"The Institute of simplified proceedings was introduced into the civil procedure legislation in March 2016 and was to increase justice availability, court procedures optimization, its precipitation and simplification. It certainly corresponds to the basic postulates of procedural economy principles, which in turn imply the effectiveness of the court’s protection of citizens’ violated rights and freedoms by saving financial and necessary for the case consideration time resources. This article is devoted to analysis of the Institute of simplified proceedings, problems associated with procedural rules application in the context of the procedural economy principle, as well as improving this procedural institution ability.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128048928","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 : 2021-02-11DOI: 10.18572/1812-383x-2021-2-12-16
S. Burmistrova
Despite the widespread consolidation of the principle of justice in normative acts, its law enforcement significance continues to be debatable, while the analysis of judicial practice shows that courts often use the noted moral and ethical principle as a basis for resolving conflicts of substantive, procedural interests, including in cases where such conflicts are based on conflicting principles of law. It is significant that the free operation of the category of justice is peculiar to the verification instances, while for the first and initial verification instances the content of the principle of justice and its application to the settlement of disputes continues to be obscure. In order to solve this problem, the article attempts to determine the content of justice and derive a formula for its practical use.
{"title":"Application of Justice by Court in Solution of Conflicts of Legal Interests","authors":"S. Burmistrova","doi":"10.18572/1812-383x-2021-2-12-16","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-2-12-16","url":null,"abstract":"Despite the widespread consolidation of the principle of justice in normative acts, its law enforcement significance continues to be debatable, while the analysis of judicial practice shows that courts often use the noted moral and ethical principle as a basis for resolving conflicts of substantive, procedural interests, including in cases where such conflicts are based on conflicting principles of law. It is significant that the free operation of the category of justice is peculiar to the verification instances, while for the first and initial verification instances the content of the principle of justice and its application to the settlement of disputes continues to be obscure. In order to solve this problem, the article attempts to determine the content of justice and derive a formula for its practical use.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"73 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131673477","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 : 2021-02-11DOI: 10.18572/1812-383x-2021-2-8-11
R. Magizov, C. Nizamova
The article reveals the main directions and trends in the development of the civil process, in particular, the tendency to bring together not only civil and arbitration processes, but also civil and administrative processes. Demonstrates the desire of the legislator to unify civil, arbitration and administrative proceedings. The realized ideas of unification of the civil process are analyzed, such as replacing the institution of jurisdiction with the institution of jurisdiction, reforming simplified procedures for considering cases, introducing the institution of conciliation procedures, changing the procedure for calculating procedural terms, changing the procedure for considering challenging a judge, and other issues that accompany reforming the civil process.
{"title":"The Main Civil Procedure Development Areas and Tendencies","authors":"R. Magizov, C. Nizamova","doi":"10.18572/1812-383x-2021-2-8-11","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-2-8-11","url":null,"abstract":"The article reveals the main directions and trends in the development of the civil process, in particular, the tendency to bring together not only civil and arbitration processes, but also civil and administrative processes. Demonstrates the desire of the legislator to unify civil, arbitration and administrative proceedings. The realized ideas of unification of the civil process are analyzed, such as replacing the institution of jurisdiction with the institution of jurisdiction, reforming simplified procedures for considering cases, introducing the institution of conciliation procedures, changing the procedure for calculating procedural terms, changing the procedure for considering challenging a judge, and other issues that accompany reforming the civil process.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129888421","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 : 2021-02-11DOI: 10.18572/1812-383x-2021-2-45-50
Y. Yudina
Mediation technologies are one of the alternative to judicial methods of dispute resolution. Difficulties in the application of this institution, which is practically not used by the parties to the conflict, predetermined the need for its reform, as well as the creation of a whole complex of conciliation procedures, their legislative consolidation and stimulation. The article analyzes the practice of the parties to the dispute to the mediation procedure that existed before the entry into force of the Federal Law of July 26, 2019 No. 197-ФЗ ‘On Amending Certain Legislative Acts of the Russian Federation’, as well as the short stories of the civil procedural law on conciliation procedures in general that can be used after October 25, 2019.
{"title":"The Mediation Procedure as a Type of Reconciliation in the Modern Russian Civil Procedure","authors":"Y. Yudina","doi":"10.18572/1812-383x-2021-2-45-50","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-2-45-50","url":null,"abstract":"Mediation technologies are one of the alternative to judicial methods of dispute resolution. Difficulties in the application of this institution, which is practically not used by the parties to the conflict, predetermined the need for its reform, as well as the creation of a whole complex of conciliation procedures, their legislative consolidation and stimulation. The article analyzes the practice of the parties to the dispute to the mediation procedure that existed before the entry into force of the Federal Law of July 26, 2019 No. 197-ФЗ ‘On Amending Certain Legislative Acts of the Russian Federation’, as well as the short stories of the civil procedural law on conciliation procedures in general that can be used after October 25, 2019.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126527954","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 : 2021-02-11DOI: 10.18572/1812-383x-2021-2-17-21
Anastasia S. Strazheva
Judicial discretion at the statement of the party about falsity of the proof is considered as the problem creating obstacles to achievement of objectives of legal proceedings in civil process. Ways of its resolution are offered: establishing in the legislation or Resolution of the Plenum of the Supreme court of the court’s obligation to appoint an examination or offer the parties to submit other evidence when a party claims that the evidence is false, only if the suspected evidence confirms or refutes a fact that is relevant to the case, but in fact at the time of filing such an application there is no evidence directly confirming or refuting this fact; establishing liability in the form of a fine on the party that did not substantiate the statement of fraud; addition of the article of the civil procedure code of the Russian Federation on the statement of falsification of evidence, the rule on sending information about it to law enforcement agencies in necessary cases, when establishing the falsification of evidence; revision for newly discovered circumstances when providing new evidence, when evidence showing a lie appeared after the decision entered into legal force (through implementation by official interpretation).
{"title":"The Problem of Judicial Discretion in Declaration of Evidence Falsity by a Party as a Hindrance to Fulfillment of Tasks of Judicial Proceedings in a Civil Procedure","authors":"Anastasia S. Strazheva","doi":"10.18572/1812-383x-2021-2-17-21","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-2-17-21","url":null,"abstract":"Judicial discretion at the statement of the party about falsity of the proof is considered as the problem creating obstacles to achievement of objectives of legal proceedings in civil process. Ways of its resolution are offered: establishing in the legislation or Resolution of the Plenum of the Supreme court of the court’s obligation to appoint an examination or offer the parties to submit other evidence when a party claims that the evidence is false, only if the suspected evidence confirms or refutes a fact that is relevant to the case, but in fact at the time of filing such an application there is no evidence directly confirming or refuting this fact; establishing liability in the form of a fine on the party that did not substantiate the statement of fraud; addition of the article of the civil procedure code of the Russian Federation on the statement of falsification of evidence, the rule on sending information about it to law enforcement agencies in necessary cases, when establishing the falsification of evidence; revision for newly discovered circumstances when providing new evidence, when evidence showing a lie appeared after the decision entered into legal force (through implementation by official interpretation).","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115951510","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 : 2021-02-11DOI: 10.18572/1812-383x-2021-2-41-44
S. F. Afanasyev
The article is devoted to the subject of admissibility of the consideration and resolution of the case by the court by video call using the WhatsApp messenger. This study is relevant in view of the presence of common problems of legal regulation of procedural rights and obligations that are implemented by various participants in legal proceedings in electronic form. In order to form a comprehensive understanding of e-justice and e-justice, general scientific and private law (historical-legal, formal-legal, comparative-legal) methods are used. The question is being examined whether the court’s decision, taken as a result of the consideration of the case by video call using the WhatsApp messenger, is a procedural act, which was decided in a well-known procedural form. It is substantiated that such a decision is any other law enforcement document, but not a procedural one, since, as a general rule, for remote participation in a court session of all interested parties, only video-conferencing systems of the courts at the place of residence, stay or location of these persons are used. It is concluded that in order to transform the existing order of participation in the court session by means of video-conferencing, it is necessary to make amendments and additions to the current procedural law, allowing the presence of interested subjects anywhere outside the court, thereby legitimizing such a procedure.
{"title":"Justice and a Court Ruling Using WhatsApp: Admissible Civil Procedure Reality?","authors":"S. F. Afanasyev","doi":"10.18572/1812-383x-2021-2-41-44","DOIUrl":"https://doi.org/10.18572/1812-383x-2021-2-41-44","url":null,"abstract":"The article is devoted to the subject of admissibility of the consideration and resolution of the case by the court by video call using the WhatsApp messenger. This study is relevant in view of the presence of common problems of legal regulation of procedural rights and obligations that are implemented by various participants in legal proceedings in electronic form. In order to form a comprehensive understanding of e-justice and e-justice, general scientific and private law (historical-legal, formal-legal, comparative-legal) methods are used. The question is being examined whether the court’s decision, taken as a result of the consideration of the case by video call using the WhatsApp messenger, is a procedural act, which was decided in a well-known procedural form. It is substantiated that such a decision is any other law enforcement document, but not a procedural one, since, as a general rule, for remote participation in a court session of all interested parties, only video-conferencing systems of the courts at the place of residence, stay or location of these persons are used. It is concluded that in order to transform the existing order of participation in the court session by means of video-conferencing, it is necessary to make amendments and additions to the current procedural law, allowing the presence of interested subjects anywhere outside the court, thereby legitimizing such a procedure.","PeriodicalId":254727,"journal":{"name":"Arbitrazh-Civil Procedure","volume":"80 2-3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116700501","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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