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Regular version of the site

Article

Доступность правосудия, качество закона и развитие арбитражного процессуального законодательства

Журнал российского права. 2018. № 12. С. 120-130.
Фокин Е. А.

The present research is devoted to the analysis of general trends in the Russian commercial procedural legislation The author proceeds from the fact that the nature of the latest amendments to the Commercial Procedural Code of the Russian Federation indicates that Russian justice in the field of economic disputes is currently in a transition, and Aspires to formulate fundamentally new tools and norms. In order to determine possible directions of commercial procedural law development, two European concepts have been chosen: the concept of access to justice and concept of quality of law, which are regularly used in the case-law of the European Court of Human Rights. Comparison of changes in the procedural legislation with these concepts and the practice of the international court led to the conclusion that certain legislative novels cause an excessive number of questions. Thus, the writ proceedings introduced into the commercial process does not fully correspond to the ideas of access to justice. Particularly criticized is the idea of refusing to compose the reasoning part of the judgment in view of the discrepancy of this innovation with the case-law of the ECHR and doctrinal views on the access to justice. To determine the admissibility of any legislative changes, the ECHR's method of comparing objectives is proposed, which is to determine the balance of the objectives of the state (legislator, court) and persons seeking judicial protection. Also the article gives the estimation of tendencies of development of commercial procedural legislation from the point of view of concept of quality of the law. It was concluded that in procedural legislation (and as a consequence in judicial practice) provisions that do not meet the requirements of legal certainty. The conclusions of the article systematize the formulated conclusions and proposals.