The article discusses the procedural aspect in proceedings on cases of violation of anti-doping rules by athletes. Problems are being raised about the need to amend the civil procedural legislation of Russia related to the possibility of postponing the proceedings for the reinstatement of an athlete dismissed for doping for the period of consideration of his appeal in CAS / TAS, as well as some aspects of enforcement proceedings in this category of cases.
The paper argues that the constitutionally required is only a judicial compliance assessment. Analyzing the structural features of different models of judicial compliance assessment, the author proves the interconnection and interdependence of the constitutional provisions, the subject of judicial activity and the specific procedural rules of the contestation of normative legal acts. Explore the possibility of a judicial compliance assessment model, the author argues that the development of production rules on contestation of normative legal acts on the model of the right resolve the dispute fully corresponds with the constitutional guarantees of the right to judicial protection.
In the present article author analyzes the actus reus of the legal wrongdoing of the debtor in the enforcement procedure and comes to the conclusion that we must not consider the enforcement as only the system of procedural relations with the participation of the bailiff. It must be remembered that many other blocks of law are integrated into the enforcement sphere including constitutional, administrative law, civil, family law and civil procedure, etc.
It means that the non-enforcement of the court acts as well as of non-judiciary documents are not the specific wrong-doings from the enforcement regime standpoint. By non-performing of writ of execution the debtor in the first instance ignores the execution of his obligation provided in the sphere of regulation, that is «serviced» by the enforcement procedure, and the specific «sectoral» illegality in the enforcement sphere does not exist.
The article is devoted to the review of the new school of evidence, formed in the USA in the late 60s of XXth century. The research program of the new school of evidence aims to study not so much the rules of evidence, but the process of proof itself and the specifics of various types of evidence with the involvement of non-legal sciences. The new school is characterized as interdisciplinary. Most scientists are turning to such sciences as psychology, sociology, economics and mathematics. The author analyzes the main directions of research of this school, formed over the past 50 years, summarizes their results.
Interim measures are intended to ensure the effectiveness of judicial proceedings. However, they are often used inefficiently in practice. A serious problem in Russian civil and arbitration proceedings is the balance of interim measures taken. The article discusses the problem of applying interim measures by Russian courts. The article examines current legislation, explanations of higher courts, and judicial practice. For comparison, we analyze the procedural rules of England and the United States on security- measures, as well as the UNCITRAL arbitration rules. The authors conclude that there are serious problems with the application of interim measures in Russia and make some suggestions for correcting the situation. It seems that the key parameter for deciding on interim measures of protection should be the probability of the plaintiff winning the claim on the merits. However, this parameter is not mentioned in the text of the law and explanations of the higher courts. This leads to the fact that the courts sometimes automatically introduce very burdensome for the defendants interim measures of protection even in apparently unpromising claims. The problem of interim measures is particularly acute in cases involving subsidiary liability in bankruptcy, where the property of defendants is often seized for amounts several orders of magnitude higher than the size of their personal fortune.
Identifying the object of the offense as a ground of responsibility in enforcement proceedings allows to determine its place in the legal system, to establish links with other elements of the relevant legal regime. The uniform normative task of enforcement is the correct and timely execution of acts of specialized agencies. In the article author examines in detail the object of legal wrongdoing in enforcement proceedings and comes to the conclusion that despite the necessity to secure of authority of public body, which issued the document, which is the subject for enforcement, for example the court decision, the interests of the particular creditor, but not public interests, comes to the foreground. Based on the submission above some practical conclusions are made regarding the possible future development of the system of enforcement (including liability measures), ensuring the balance of interests of debtor, creditor and state in contemporary enforcement proceedings. The author draws attention to examples of the implementation of various approaches in Russian legislation; considers the principles in force in the field of enforcement proceedings and their implementation.
The article highlights contemporary issues of civil procedural law and arbitration process. The author analyzes the latest changes in the procedural legislation-the rejection of the term "jurisdiction", and relevant scientific works on the problem of establishing jurisdiction, which early propose ways to get access to justice for citizens and legal entities. The replacement of the term "jurisdiction" with the terms "competence" and "jurisdiction" will cause confusion of the conceptual framework both in practice and in theory. The law shell be shall be governed and construed the transfer of the case the absence of the jurisdiction of the court from one system of courts to another. This rule, together with the procedural prohibition of disputes on jurisdiction between the courts, makes the defendant's subjective right to be tried by the court to whose jurisdiction it is assigned by law vulnerable. The author analyzes the regulation of the other countries jurisdiction over a dispute and pre-revolutionary procedural legislation . Disputes about jurisdiction are universally allowed, moreover, the procedure for resolving conflicts of jurisdiction by a higher court is fixed. The author comes to the conclusion that the difficult issues of the jurisdiction’s rules should be provided to a particular judicial body (court of justice) or strengthen the system of guarantees of the parties in the case.
The present review is an updated part of the article-by-article commentary to the Arbitration Procedure Code of the Russian Federation. This commentary presents an updated analysis of paragraph 3 of Chapter 30 “Proceedings in Cases Related to the Fulfillment by the Arbitration Courts of the Assistance Functions in Relation to the Arbitration Court” of the Arbitration Procedure Code of the Russian Federation as amended by Federal Law of 26 July 2019 No. 197-FZ “On Amending Some Legislative Acts of the Russian Federation”.
The Article addresses the scope of the definitions “recognition” and “enforcement” of foreign judgments and its interrelation in the doctrine and legislation of civil law and common law countries. The Author believes that the mentioned notions came into existence due to the special doctrinal approach under which the state sovereignty amounted to the state monopoly of coercion. In order to safeguard this monopoly the legislation of that time provided that enforcement of foreign judgment required prior authorization from the domestic court (exequatur). On the contrary the preclusive and collateral estoppel effect of foreign judgment did not affect the state sovereignty and thus did not require any prior authorization of this kind. With regard to the above the Author makes critical remarks concerning L.A. Lunts’s approach under which recognition of foreign judgment serves a precondition for its enforcement.
All modern legal orders establish legal tools aimed at preventing of concurrent judicial proceedings in different jurisdictions. One of these tool is the principle of lis pendens, having for its goal avoiding parallel examination by different courts or arbitration of identical claims. Conditions of lis pendens application are following: same claims, same parties, and sequence of claims lodging and initiation of proceedings. However, these conditions are understood and interpreted in various legal systems in different ways, that may lead to decrease of lis pendens effects and its inefficient use. In particular, it regards different approaches to identity of claims examined in parallel proceedings: this identity may be determined by cause of action or subject matter, but also by its object, i.e. the purpose of it. Neither is the identity of the parties of both proceedings an absolute precondition: the parties may change their procedural roles in parallel litigation. The moment of judicial proceedings beginning also is not the same in different legal systems. The authors come to the conclusion that criteria of claims and parties identity determination should be flexible enough to better take into account the different of mentioned approaches, and the moment of proceedings commencement should be determined in accordance with the lex fori.
The article is devoted to an overview of the spaces (places) in which justice was administered during the Middle Ages.
The length of the trial is not only an essential parameter of its effectiveness, but also a guarantee
of the access to justice. The concept of a reasonable time frame for legal proceedings reflects
the balance of quality and litigation terms. In modern comparative legal doctrine, the optimal
duration of legal proceedings is associated with the active role of the court and the ratio of
the powers of the court and the activity of the parties to manage the movement of the case.
An important role is played by the distribution of liability between the court and the parties
for the outcome of the trial. There is a trend towards differentiating the terms of the case in
Russian legislation, however, Russia remains one of the few countries where these terms are
regulated clearly in the law itself. The article analyzes various examples of strengthening the
activity of the court in order to optimize the balance of the length and quality of the trial,
including in Austrian law under the influence of the ideas of Franz Klein. The author comes
to the conclusion that expanding the powers of a judge to regulate the time limits for carrying
out procedural actions and considering the case as a whole has great potential for increasing
the effectiveness of Russian legal proceedings in general.
The authors of the article analyze the bill brought in by the Supreme Court of the Russian Federation to the State Duma in early October of 2017. This bill is aimed at reforming the procedural legislation in a number of areas, but the subject of the study is amendments to the Civil Procedure Code and the Arbitration Procedure Code of the Russian Federation. In particular, the background of the amendments proposed in the bill, the correlation of the proposals with the current provisions of the law and the contradictions are revealed, the consequences of adopting new provisions are predicted. The first part of the article is devoted to the recusal of a judge, notices of process, expedited procedures (summary and writ proceedings), and the review under new circumstances as a result of changes in the highest court’s interpretation of the law. Proposals concerning jurisdiction, representation, cancellation of the statement of reasons as an obligatory component of the judicial acts and some others will be considered in the second part of the article. The first part also outlines some alternative proposals for resolving the problems the judicial system is facing at present - they will be described in more detail following the results of the analysis.
In the second part of the article, the authors continue to analyze the changes in the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Rus sian Federation proposed by the bill, which was introduced by the Supreme Court of the Russian Federation in the beginning of October 2017 to the State Duma for consideration. In particular, the risks and consequences of the possible cancellation of the motivating part of judicial acts as an obligatory component thereof, the impact of such an initiative on jus tice in general, on the rights and legitimate interests of the participants in the process, and on the level of professionalism of the judiciary are assessed. In addition, taking into account the existing prerequisites and approaches, the authors analyze changes regarding jurisdic tion, rules of appearance in court and court expenses. According to the authors, this legis lative initiative is incorrect, and already criticized by many representatives of the legal com munity. The authors consider the issue in its more procedural and applied aspects. The idea looks as a very simple way to solve the eternal problem of overburdening of judges, but in fact this plan is extremely dangerous and hides many problems and questions. The authors warn of the disastrous consequences for justice, the rights and interests of citizens.
By the virtue of the analysis of the current state of development of digital technologies in civil procedure, as well as the existing legal doctrines on such technologies the article delights some problems and prospects of the implementation of digital technologies in civil procedure, which were not previously covered or were covered insufficiently. Particularly on the basis of the analysis of prevailing legal doctrines on the essence and the role of technology in civil proceedings, there is an attempt of a setting of a problem of economic efficiency of digital technologies implementation in civil procedure. As the result of the analysis of the specific requirements for civil procedure and the experience of practical implementation of digital technologies in procedural law, it is concluded that socio economic and psychological aspects of the problem makes the Russian law enforcement system being not ready to implement such technologies as the only way of execution of justice. Ultimately it leads to the construction of a double infrastructure of justice and inefficient spending of funds. Based on the actual state of scientific understanding of the problems of implementation and use of robotics and artificial intelligence, some of the most problematic aspects of such an implementation in civil procedure are identified. In particular, it is indicated that efficient implementation of such technologies requires the formulation and solution of a number of problems; the authors formulate these problems and propose the possible approaches to their solution. From the standpoint of the theory and practice of the modern notary, the article considers the prospects, limitations and possible problems associated with the blockchain and biometric identification technologies in notarial activities. In particular, based on the analysis of the advantages, disadvantages and technical specifics of blockchain technology, it is concluded that blockchain is not yet ready to be universally used in notarial activities. Based on the specifics of biometric data as one of the types of personal data, the authors following the foreign experience offer a differentiated (depending on the purposes and spheres of usage) approach to the legal regulation of biometric identification in notarial activities. Taking into account the actual level of the legal doctrines and practical implementation of digital technologies in enforcement proceedings, the article proposes an legal regulatory approach according to which the further development of enforcement proceedings should fits with the main trends of developments of civil procedure and civil circulation, i.e. to strive for “deritualization” and “dematerialization” of law. In this regard, the authors delight the main problems and prospects for further digitalization of Russian enforcement proceedings.
The article explores theoretical and practical issues of using electronic evidence in the activities of Courts - documents and materials that do not exist in material form, but are files of various types. The legal nature of electronic evidence and its difference from written and material evidence are analyzed in the article. The problem of the reliability of electronic evidence, as well as the practice of General Courts and State Arbitration Courts to establish the reliability of such evidence is considered. A classification of electronic evidence is presented, depending on the availability of free access to them by the Court and the participants in the process, and certain types of electronic evidence are analyzed, including log-files and metadata as evidence that can be used in Court to confirm other evidence.