V.V. Butnev,


      On 24 October 1991 the decree of the Supreme Soviet of RSFSR approved the Concept of the judicial reform in RSFSR.[1] Its authors proceeded from the necessity to fundamentally reform the principles of a court organization in RF. They suggested that the uniform judicial system in RF be rejected and instead two judicial systems be established in the country (the federal system and the system of courts of the federal subjects), which they regarded as an integral feature of a federative state. The authors of the Concept suggested that circuits should not coincide with administrative and territorial and national and public division of the country, which would additionally secure independence of judges. They suggested to replace the three-level judicial system with a four-level one, provide in the law for the institute of magistrates, the jury for criminal and some of the civil cases, an appellate review of certain court rulings, to extend the system of specialized courts, and to introduce forms of justice alternative to state ones[2]. In the course of discussion the scholars-jurists and practicing lawyers advanced other interesting ideas how to reform the judicial system.[3]

      Some of the suggestions of the Concept authors were accepted by the legislator, while others, on the contrary, were rejected. The Law On the Judicial System of the Russian Federation dated 23.10.96.[4] is based not on the dualism, but on the unity of the judicial system of RF, which is ensured by the judicial system and the rules of legal proceedings set forth by the federal laws, uniform enforcement of laws by all courts of RF, mandatory enforcement of judgements throughout the whole territory of RF, uniform status of all judges in RF (Article 3 of the Law). The legislator rejected the idea of non-coincidence of circuits with administrative and territorial division of the country (Art. 4 of the Law), nor any alternative non-state forms of justice were provided for in either the Constitution of RF (Art. 118) or in the Federal Constitutional Law (the FCL) On the Judicial System. At the same time I.V.Reshetnikovas and V.V.Yarkovs proposal to complete the principle of the judicial system unity by establishment of the single high court of RF uniting the Constitutional, Supreme, and High Arbitration Courts of RF found no support.[5] However, the FCL On the Judicial System of RF provided for the possibility to set up new (along with arbitration courts) specialized federal courts (Art. 26 of the Law), participation of jurors, peoples and arbitration assessors in justice administration, setting up of constitutional (statutory) courts by the subjects of RF and establishment by them of the institute of magistrates in their territories (Articles 4, 27, 28 of the Law).

      It should be emphasized that a subject of RF is entitled, and not obligated to set up constitutional (statutory) courts for consideration of issues related to consistency of laws of the subject of RF, normative and legislative acts of the public and local authorities of the subject of RF with the constitution (the statute) of the subject of RF, as well as for construction of the constitution (the statute) of the subject of RF. If such court is not set up, decision-making on such matters must be attributed to the competence of general federal courts of the subjects of RF. I.V. Reshetnikovas and V.V. Yarkovs suggestion to include constitutional (statutory) courts of the subjects of RF in the single system with the Constitutional Court of RF and, at the same time, to provide for the right of interested persons to appeal against their judgments in the Constitutional Court of RF, warrants attention.[6]

      After adoption of the Law On Magistrates in RF[7] by the State Duma many subjects of RF exercised their right to establish such institute in their territories. The CCP of RSFSR currently provides for jurisdiction of a magistrate over cases and the procedure of review of his judgments.[8] At the same time, the federal laws do not establish the procedure of a case trial by a magistrate. This deficiency cannot be made up by the subjects of the Federation, since they are entitled to establish the procedure of justice administration by magistrates only with respect to justice administration in cases of administrative offenses (para 2, Art. 1 of the FL On Magistrates in RF).

      In our opinion, establishment of the institute of magistrates is a mistake. One should agree with the author of the first draft of the CCP of RF in that there is no need to regulate at the federal level the proceedings conducted by a magistrate if a case is tried by a sole judge, there are no grounds to restore this institute.[9] Para 3, Art. 11 of the Law On Magistrates, charging the subjects of RF with logistics for magistrates activities, is contrary to the rule of Art. 124 of the Constitution of RF stipulating that financing of courts is effected only from the federal budget.[10] While district courts are pressed for funds, establishment of a new link in the judicial system that will require additional funds, seems to be an inadmissible luxury. These courts will find themselves in a greater dependence on the local authorities than district courts, i.e. the result will be absolutely contrary to that the authors of the Concept of the judicial reform strived for.

      Establishment of the institute of magistrates will hardly result in a faster and higher-quality civil cases trial. Magistrates will consider the civil cases which are currently considered by sole judges of district courts (Art. 3 of the FL On Magistrates in RF, Art. 113 of the CCP of RSFSR, the version of the FL dated 07.07.2000). What is the legislators conviction that it will be the justice of a higher quality based on? Establishment of the institute of magistrates will not result in any considerable relief for district courts. Judgments of magistrates are reviewed following an appeal procedure in the trial court (Art. 318 of the CCP). Actually, it is a new case trial on the merits, with new evidence and facts finding. It is safe to assume that the quantity of errors committed by judges of district courts will not decrease. If at present such errors are corrected by higher courts following a cassation procedure, a judgement delivered by a court of appeal is final and subject to no appeal in a court of review (Art. 318 of the CCP). Hence, the institute of magistrates prolongs adjudication procedure and diminishes the guarantee of the contending parties rights and interests protection.

      The Federal Law On Introduction of Amendments and Addenda to the CCP of RSFSR contains a number of important novels.

      It is known that the authority of the law of civil procedure is not only procedural and normative acts, but also procedural rules of normative acts of a substantive and legal nature (the Civil Code, the Family Code, the Housing Code, the Labour Code, etc.) which are often contrary to basic rules of the procedural laws. Scholars researching the problem of procedures, long ago suggested to establish the principle of precedence of the procedural law fixed in the CCP over all other normative acts in order to avoid antinomy in different normative acts setting forth one and the same procedural rule.[11] At present, this principle is stipulated in para 2., Art. 1 of the CCP: The rules of the civil procedure law stipulated in other laws must be consistent with the provisions of this Code. Successive implementation of this rule may completely change the practice of certain matters solution. Thus, pursuant to part 2, Art. 50 of the CCP a court determines what facts are relevant and important for the case, which party to the dispute should prove them, and brings them up for discussion even if the parties did not refer to some of them. After adoption of a new version of Article 1 of the CCP it is necessary to recognize as invalid paragraph 1, para 2, Art. 199 of the CC (limitation of action is applied by a court only against a contending partys application made prior to the delivery of a judgment).

      The legislator has settled an old dispute about permissibility of analogy of the procedural law and procedural rule in the civil process. Part 5, Art. 1 of the CCP explicitly permits both the analogies. If the analogy of the procedural law has been applied in the court rulings since long ago,[12] permissibility of the analogy of the procedural law seems to be a mistake of the legislator. Unlike civil substantive relations, legal proceedings permit only actions provided for by the procedural law. Hence, to carry out a procedural action a court must have a certain guideline - a rule of the CCP regulating similar relations. There is another weak point in Art.1 of the CCP - as before, the legislator does not provide for the application limits for the analogy of the procedural law.[13]

      The legislator has specified the procedural status of the bodies protecting other persons rights and interests in proceedings (Art. 42 of the CCP, the new version). Now they are entitled to file actions in protection of interests of an indefinite circle of persons, and the actions in protection of specific individuals may be filed by them only at the latters request. An exception is only the actions filed in protection of interests of an incapable person; such actions may be filed irrespective of whether the request is made by the persons lawful representative or any other interested person. The legislator has made up for the deficiency in the former version of Art. 42 of the CCP which did not provide for the actions to be taken by a court in the event a claimant (a person in protection of whose interests a public authority has filed an action) abandoned the claim while the public authority insisted on its satisfaction. At present, in such event proceedings are to be terminated.

      At the same time, amendments of the CCP did not affect the procedural status of a public prosecutor. There is still an antinomy between Art. 34 of the CCP admitting the absolute right of a claimant to abandon a claim and Art. 41 of the CCP providing for the absolute right of a public prosecutor to file any action in protection of the others interests and, consequently, to insist on its satisfaction irrespective of the claimants position.

      It is quite evident that basic issues of improvement of justice in civil cases cannot be solved by way of patching up the current CCP, but require adoption of a new CCP[14]

[1]  See: Concept of the judicial reform in RF. M., 1992.
[2]  See: Ditto. pp. 47-57. 98-100
[3]  See, for example: U. Bernem, I.V. Reshetnikova, V.V. Yarkov, Sudebnaya reforma: problemy grazhdanskoi yurisdiktsii ( The Judicial Reform: Issues of the Civil Jurisdiction). Ekaterinburg: 1996; The explanatory note to the draft of the CCP of RF// The Code of Civil Practice of RF (draft). M., 1995, pp. 3-21.
[4]  Rossijskaya Gazeta (The Russian Newspaper). 6 January 1997.
[5]  See: Sudebnaya reforma : problemy grazhdanskoi yurisdiktsii (The Judicial Reform: Issues of the Civil Jurisdiction), pp. 24-25.
[6]  See: Ditto, pp.13-14. To put this proposal into practice it will be necessary to amend para 4, Art. 27 of the Law On the Judicial System of RF pursuant to which judgment of a constitutional (statutory) court of RF delivered within its competence cannot be reviewed by another court.
[7]  Rossijskaya Gazeta (The Russian Gazette) of 22 December 1998.
[8]  See: the FL of RF On Introduction of Amendments and Addenda to the CCP of RSFSR, in: Rossijskaya Gazeta (The Russian Gazette) of 15 August 2000.
[9]  See: the CCP of RF (a draft) , pp. 7-8. This conclusion of the authors respecting the jury for civil cases trial is also correct.
[10]  The same may be said about para 2, Art. 27 of the Law On the Judicial System of RF (financing of a constitutional (statutory) court of a subject of RF is effected from the budget of the respective subject of RF).
[11]  See: N.A. Chechina, Osnovnye napravleniya razvitiya nauki sovetskogo grazhdanskogo protsessualnogo prava (Main Trends of Development of the Science of the Soviet Law of Civil Procedure). Leningrad, 1987, pp.95-100.
[12]  Its necessity has been long ago persuasively founded in the Russian jurisprudence. See, for example, A.T.Bonner, Primeneniye normativnykh aktov v grazhdanskom protsesse ( Application of Normative Acts in the Civil Process). M., 1980, pp. 96-111.
[13]  See, for example, V.V. Butnev, E.A. Krashenninikov, Problemy sovershenstvovaniya grazhdanskogo protsessualnogo zakonodatelstva (Problems of Improvement of the Laws of Civil Procedure), in:Pravovedenie (Jurisprudence), 1990: No. 4, p. 58.
[14]  The authors opinion on some of such issues, see : V.V. Butnev. Nekotorye zamechaniya k proektu GPK RSFSR, (Some Remarks to the Draft of the CCP of RSFSR, in: Problemy zaschity subektibnykh grazhdanskikh prav (Problems of Protection of Subjective Civil Rights). Yaroslavl, 2000, pp. 54-62.