Понимание категорий взаимности и международной вежливости в российской судебной практике

Международное правосудие. 2023. № 1(45). С. 94–119.

Erpyleva N., Getman-Pavlova I. V., Kasatkina A.

The categories of reciprocity and international comity are well known and often mentioned in Russian judicial practice. However, an analysis of this practice shows that the Russian judicial community does not understand either the genesis, or the legal nature, or the specifics of these concepts. In the minds of judges, “the principle of reciprocity originates from international comity”, although in reality everything is exactly the opposite – the principle of reciprocity appeared in law much earlier than international comity (which turns out to be based on reciprocity). Reciprocity and comity in Russian judicial acts are often considered as one principle, although these are different categories that have a different legal nature and require different attitudes in their application. In many judicial acts, reciprocity and comity are characterized as universally recognized principles of international law, which seems to be erroneous. Reciprocity can be considered a universally recognized norm of international law, recognized at the universal level, but not highly imperative. Comity has a doctrinal origin and it is mainly understood as an international custom, but may have legislative fixation. Russian judicial practice is characterized by the understanding of comity as an international custom. Reciprocity has a customary legal origin, currently it is enshrined in international treaties and national legislation. In Russian judicial practice, the principle of reciprocity is applied as a norm of international custom. This approach is correct, but the courts do not distinguish between the concepts of “conflict”, “material” and “procedural” reciprocity, which leads to direct violations of Russian law. When writing the article, comparative-legal, historical-legal, dogmatic and formal-logical methods were used. In conclusion, the authors have proposed to prepare an information letter from the Plenum of the Supreme Court of the Russian Federation, in which, with examples from judicial practice, the principles of reciprocity and international comity will be explained, the possibilities and limits of their application will be determined, and parameters will be established to prove compliance with these principles by the courts of other states.

Keywords: международное частное право, международный гражданский процесс, international civil procedure, принцип взаимности, правовая помощь, Private International Law, принцип международной вежливости, principle of reciprocity, legal assistance, Russian judicial practice, principle of international comity, российская судебная практика