M. Chupov,


      The importance of the preparation stage for the practice of Russian arbitration and common courts has been under discussion by the process theoreticians for a long time. Evidently, in practice of the courts the judges pay insufficient attention and efforts to the preparatory work. It is also evident that the situation is caused by the increased workload on the judges. When the work schedule becomes tighter, it is the preparatory stage that is the first to be compressed.

      Besides, back in the Soviet times a tradition formed of a fairly formal attitude of the courts toward such work. If in the common courts the judges at least accept the statements of claims and conduct preliminary deliberations with the parties to the proceedings, there is no such custom with the arbitration courts.

      At the same time, inadequate evaluation of the importance of the institute of preparation for the hearing results in unfavorable consequences from the viewpoint of the justice administration. If the cases are badly prepared for the hearing, this results in numerous adjournments due to the necessity to adduce and verify new evidence. This not only increases the workload on the tribunals, but also leads directly to the abuse by the parties and third parties of their rights and to the delay in the court protection.

      The absence of a thorough study of the case circumstances and evidence prior to the hearing inevitably leads to the delivery of a large number of unsubstantiated and frequently unlawful judgements, which, in its turn, increases the workload on the appellate and cassation instances.

      Besides, profanation of preparation for the hearing in combination with a formal attitude to the records of the hearing gives rise to a situation when the notion of a verbal proceedings acquires a principally new meaning: at present, it is practically impossible to comprehend from the records of the case the essence of the dispute resolved, or the motives governing the tribunal in the delivery of the judgement, or the circumstances underlying the judgement concerned.

      All this becomes an obstacle to the effective and lawful administration of justice. Besides, it is obvious that the Russian civil and arbitration proceedings require a substantial expansion and deepening of the institutes of evidentiary law. However, the courts work with evidence (since at the hearing the court should solve other tasks) results in the failure to implement in practice any legislative innovations in the sphere of collection, verification, and estimate of the evidence.

      Back in the Soviet times, M.S. Shakaryan suggested as an efficient mechanism for solving these task would be to charge a separate clerk not engaged in discharging of any other judicial functions to carry out the measures related to preparation for the proceedings. It seems that currently this suggestion has become even more topical.

      As regards his status, such clerk should have judicial functions and privileges. The status of a magistrate can be taken as a model. The functions of the clerk should comprise acceptance of the statement of action, refusal to accept the same, return of the same, notification of the parties and third parties, acceptance of the statement of defense and the counterclaim, third parties applications, as well as all actions specified in Cap. 15 of the Code of the Criminal Procedure (Cap. 14 of the Code of the Civil Procedure of RSFSR) with every and all rights and duties of a judge.

      Besides, such institute provides a possibility for introduction of the procedures of disclosure of legal strategies and proof under the courts control. The opportunity to study the requests, objections, and evidence adduced by the adversary would be extremely helpful for the claimant who now is practically devoid of the possibility to get prepared prior to the hearing for the pending presentation of the case. The opportunity for the participants in the proceedings to get well prepared for the hearing is important for administration of justice as a whole, as well.

      In the situation when the parties keep the legal objections and evidence up the sleeve until the hearing, it is practically impossible to study these thoroughly in the course of the hearing. The nature of the hearing in this case cuts short the work with the evidence and the pleadings per se, turning the judicial examination into the competition of wits both of the judges and the participants in the proceedings.

      The final outcome of the suggested mechanism should be a written file fully reflecting the work carried out in the course of preparation for the hearing, arguments, proof, and evidence adduced by the parties. In case the parties disclose the evidence and accompany this with pleadings, by the beginning of the hearing the judge will have a full written form, which will significantly simplify resolution of the case on its merits and recording of the hearing in a form ensuring access to the true information on the case entertained.

      The framework of this paper does not make it possible to dwell on the issues of legislative regulation of the institute suggested and its relation to other institutes of legislative regulation of the civil and arbitration proceedings, but our task is to show the expediency and possibility of implementation of these suggestions.

      Having accepted the above view on the problem, the first task would be to provide human and financial resources for the suggested measures. Of course, one may object that the suggested measures do not vest the system with any new functions, the existing corps of judges have already been vested with almost all the above duties, but in real life such objection would be ephemeral.

      However, it seems that the problem can be solved even without attracting any additional resources. After the case has been examined by two independent professionals, which reduces the possibility of judicial errors, it would be ineffective to provide for the second consideration of the case on its merits - by the court of appeal. Even now the existing practice of the courts suggests that the true importance of the above type of revision of the judgements is insignificant. The statistics of revision and setting aside of the awards rendered by arbitration courts of the first instance by the courts of appeal and cassation unambiguously shows that the second instance is inclined to uphold those awards of the first instance courts that will be subsequently set aside by the courts of cassation. Very frequently the participants in the proceedings do not even apply to the court of appeal, but file their appeals directly with the court of cassation. Hence, the expediency of existence of such instance incorporated in the same judicial body as the court of first instance seems doubtful.

      The fact that there is no appellate instance in the common courts (with the exception of cases entertained by magistrates) is even more absurd, and the new draft Code of Civil Procedure does not stipulate introduction of anything like that. Hence, we can painlessly obtain the possibility to implement the suggestions under consideration at the expense of cancellation of the appellate instance in the arbitration proceedings.

      In the event the suggested practice is successful in the arbitration courts, the expediency of expenses on its transfer to the common courts will be obvious.

      In our opinion, implementation of these measures will eliminate many practical and theoretical problems posed before the national arbitration and subsequently civil process. In particular, dualism in the nature of the Russian civil process, which combines the characters of the adversary and investigation proceedings in the activities of every particular judge, will be eliminated to a great extent.

      In my opinion, neither the term investigation proceedings, nor its fundamentals in the actual legislation and court practice include anything bad. What is bad is the narrowness and absolutization both of the investigation and adversary approach. And if the researchers dwelled on the advantages of the adversary model frequently and thoroughly, which is explainable, since it has been implemented in the practice of Russian courts insufficiently, now, when the institutes of the adversary proceedings are becoming widespread, the inborn defects of the adversary model, such as dependence of justice on the correlation between the parties capabilities and extremely high cost for the public of such civil judicature model, have become apparent.

      In our opinion, despite the necessity to develop the institutes of the bar and other legal assistance to individuals, orientation in this respect to Britain and the USA which have millions of qualified lawyers is a kind of economic sabotage. For us, a true orientation from every viewpoint would be to the European countries with the native for us Roman-German law system and process, including both the adversary and investigation features.

      Therefore, the European countries have to solve the same problems as ours. As a result, in France, for instance, the arrangement suggested has long been operating successfully. Also, alongside with preservation of guarantees of the adversary nature of the proceedings, there are more than three times less lawyers per capita in France than in the USA.

      The system suggested eliminates the dualism in the reasoning of a judge who currently comes to the hearing with the opinion already formed, which can hardly be shaken in the course of the hearing. Under the suggested system, the judge would get information and form his opinion proceeding from the hearing, and that will ensure implementation of the principles of verbal, direct, and unbiased nature of justice.

      Besides, there appears a possibility to evoke the trust on the part of the population to administration of justice. In case the case is handled by a special court clerk prior to the hearing, it would be possible to choose directly before the hearing the judge who will entertain the case on its merits, which will make it more difficult for the interested persons to apply to the judges with any kinds of suggestions. In the event the cases set down for hearing are distributed among the judges of certain tribunal on the hearing day by casting a die, such possibility will be simply eliminated. Besides, there appears a possibility to exercise control over the case by two unrelated professionals, and one of the instruments of such control should be the possibility to appeal against the actions of the court clerk (apparently, in the same court).

      Another important consequence of introduction of the institute of special court clerks to accomplish preparation of the cases for hearing should be a true improvement of qualification of the court employees. There appears a possibility to choose the judges from among the persons who have gained experience as court clerks and accumulated a sufficient practical experience for the discharge of judicial authorities.

      The author expresses hope that his modest work may attract attention to a big real problem of the Russian arbitration and civil proceedings.