Структурные и судопроизводственные факторы, влияющие на правильное применение правил подсудности гражданских дел

Lex Russica (Русский закон). 2022. Т. 75. № 1(182). С. 18–27.

Bekyasheva D.

he maxim of the positivist approach, according to which the courts must strictly follow the letter of the
law, today keeps turning into the abolition of judicial acts «in view of unclear, ambiguous legislative regulation of
competence delimitation lacking specificity and due clarity,» which does not exclude referring the case for a new
hearing (with proper consideration of the merits of the case in previous instances). Courts do not apply uniformly
amendments to the procedural legislation (Federal Law of 28.11.2018 No. 451), as well as new clarifications that
appeared in the context of the amendments (Resolution of the Plenum of the RF Supreme Court of 30.06.2020
No. 12; Resolution of the Plenum of the RF Supreme Court of 22.06.2021 No. 16) that have finally overcome
contradictions between traditional understanding by the Constitutional Court of the Russian Federation of the
right to a competent court and the ideas of the ECHR concerning objections to jurisdiction only in the court of
first instance. In situations when a court decision is overturned and referred for a new consideration to the court
of first instance, the classical understanding of the constitutional right to defence by a competent court looks
like an image, a weak effort to lend legitimacy to the arguments provided by the appellate court. Taking into
account that the rules of competence and jurisdiction are far from always being determined according to the
merits and features of the case, and amendments made to the procedural legislation concerning distribution of
cases between courts still do not implement the proposal of the Constitutional Court of the Russian Federation
to enshrine in the law a criterion that allows determining a competent court, and that they are implemented
arbitrarily, it is proposed to clearly formulate the rule restricting both participants in a disputed legal relationship
to make procedural objections based on the lack of jurisdiction of the court of appeal, if such a right could have
been exercised in a court of first instance, and the rule to overrule the decision only in cases where a person
was really restricted in access to justice and the exercise of the right to judicial protection due to violation of
jurisdictional rules.
 

Keywords: гражданский процесс, арбитражный процесс, civil procedure, arbitration process, подведомственность гражданских дел судам, civil process, право на судебную защиту, доступность правосудия, right to judicial protection, accessibility of justice, competence and jurisdiction of civil cases, delineation of the competence of the courts, dherence by the court ex officio to the rules on jurisdiction at the stages of the process, procedure for transferring cases according to jurisdiction., подсудность гражданских дел, разграничение компетенции судов, соблюдение судом ex officio правил о подсудности на стадиях процесса, порядок передачи дел по подсудности.