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V.G.Gusev,
SENIOR LECTURER OF THE SARATOV STATE ACADEMY OF LAW,
DOCTOR OF LAW



ADDITIONAL GUARANTEES OF INDIVIDUALS RIGHTS OF RELIEF IN CIVIL PROCEEDINGS


      The Federal Law of 27 October 1995 introduced important changes into the Code of Civil Procedure of RSFSR (the CCP of RSFSR), which concerned mainly two fundamental principles of the civil procedure: the adversarial nature and option.

      The legislator excluded from the CCP the provisions obliging a court to prove those facts whereto the parties refer as the grounds of their claims and objections. It is evident that such approach is reasonable, since it is absurd to suppose that a judge would deliver an objective judgment discharging simultaneously duties of two judicial officers - an investigator and a judge.

      Long ago psychologists proved that an individual was emotionally and psychically more inclined to those persons whom he helped, rather than to those who helped him. Therefore, a judge collecting the evidence, which would ground the position of the latter, seemed to grow into the problem, it became a personification of his activities that, without any doubt, affected his objectivity in consideration of the case on the merits.

      Thus, prior to amendments of the CCP introduced in 1995, the most optimal form of conduct of a party to a process was an unmotivated negation of all the adversarys arguments. A court, following the then law prescription to discover the objective truth in a case, had to burden itself with proving instead of an unscrupulous party to the process. The practice shows that very often the activities of an unscrupulous party just came to pretending to be a person who lacked intellect, had low living standards and poor health; he made groundless statements, and frivolously negated the adversarys arguments. Groundless seems the viewpoint of some of the jurists calling for turning the time back, i.e. fixing in laws the interpretation of the principles of the adversarial nature and option that existed in the CCP before 1995 .

      The practical value of the amendments introduced into the law arises no doubts: market relationship in Russia may be restored only when the citizens learn to protect their rights and interests and to bear liability for their actions.

      At the same time, there is an essential obstacle hindering implementation of these changes in the judicial practice. An extremely low living standard of the majority of Russians is meant here. It is exactly a low financial standing of our citizens that prevents them from getting a qualified legal assistance for protection of their rights.

      As a result of amendments of the CCP, the winner in the court is not the person who is actually right, but not a person whose line of defense or offence was formulated more expertly from the legal viewpoint.

      In the course of drafting the new CCP of RF there arises an acute necessity to work out a mechanism of rendering a free legal assistance to destitute Russians. The intended concept must cover, in our opinion, the following main points:

      1.  A fully free legal assistance will unavoidably entail abuses in the process of its use and affect negatively formation of the citizens sense of responsibility for their actions.
      2.  The right of the privileged legal assistance must be granted only to the citizens falling under strictly definite qualifications, namely:

      -  property qualification; age requirement;
      -  health condition;
      -  presence of several (more than three) minors.

      3.  A counsel rendering legal assistance to the above categories of persons must undoubtedly have material incentives.
      4.  It is necessary to save the state from the financial burden in implementation of the suggested mechanism.
      5.  Bailiffs called for quick, efficient, and steady implementation of the will of the judicial authority by enforcing judgements will have to optimize their activities..

      The Essence of the Suggested Mechanism

      An individual falling under the above qualifications applies to the legal advice office nearest to his residence for protection of his rights, where his matter is considered by a professional counsel who gives respective explanations of the possible judicial protection of his rights. If the prospects of the judgment sought by the client seems doubtful, the client is warned accordingly. If the client, regardless the warnings, insists on defense of his rights (violated as he presumes), the counsel signs with him a contract whereby the client undertakes to pay him a fee in the event the action is lost. The amount of the fee must be fixed in a court ruling when the case is tried on the merits. It stands to reason that the amount of the fee determined by the court should depend on the form, nature, and the extent of the legal assistance actually rendered to the client. To ensure the constitutional right of relief, the laws should stipulate that a counsel has no right to deny an individual the legal assistance irrespective of the prospects of the dispute trial. But at the same time, the risk of the negative result anticipated by the counsel should be borne by the individual who applies for the legal assistance, otherwise the suggested novelty will foster barratry. The counsel should present the contract with his client to the court. As an incentive to the counsel to improve his professional qualification, a court must have the right in its judgment to reasonably refuse to pay the attorneys fee, if the legal assistance rendered to the client was of improper quality. In the event the counsel and his "privileged" client win the action, the counsels fee must be recovered from the unsuccessful adversary. Thus, to ensure a material interest of the counsel who renders a qualified legal assistance, the court, in any case, along with the trial on the merits, must provide in its ruling for the recovery of the counsels fee from the defeated party. If the parties make a compromise, it should be also be signed by the counsel working under the contract with the "privileged" client. If the parties and the counsel fail to agree on the amount of the fee for the legal services rendered, the counsel should have the right to refer the matter to the court, and the latter, in its turn, will be obliged to divide the costs between the parties in its determination approving the compromise.

      Similarly solved should be the matter connected with a claimants abandonment of an action. The court in its determination on acceptance of the action abandonment should fix the clients willingness to pay for his counsels services. If there is no such willingness, or the counsel does not agree to the amount of the fee, the court is obliged to determine an adequate remuneration for him.

      In the event the claim is allowed in part, the court should distribute the amount of the counsels fee between the parties in proportion to the amount of the claimants relief allowed by the court. To protect a counsels interests, it would be reasonable to provide in law for his right to appeal on his own behalf against the part of a judgment related to his fee.

      The objections of the bar to the proposed novelty can be anticipated. The essence of the possible objections will, probably, come to the following: "A counsel renders his services there and then, but payment for his services will be considerably delayed. Moreover, the court determining the amount of the fee will be unable to assess properly the counsels qualification and the extent of the demand for his services among clients, which, eventually, is the criterion of a counselors qualification".

      Protesting against the anticipated arguments of the opponents, one can note the following: nowadays the absolute majority of counsels are far from overloaded with work. The average counsels salary makes up less than a thousand Rubles per month. There are situations when a counsel is not contacted by any client seeking legal assistance for two and even three months. It concerns, first of all, rookie counsels who have not gained the prestige yet by proving their qualification.

      Therefore, it would be reasonable to charge the counsels, who do not work out a certain minimum, with the matters of privileged clients, by establishing a rota of this category of counsels.

      The positive nature of the suggested novelties is quite evident, since they further solution of the whole complex of problems.

      First, the most unprotected categories of population will be able to get a qualified legal assistance and, provided the violation of their rights is not merely the product of their imagination, this assistance will be paid for by an unconscientious party to the process.

      Second, a great number of counsels, whose services are not often called for, will be employed, which fact will promote liquidation of the concealed unemployment among them.

      Third, rookie counsels will be able to gain valuable experience in defense of rights and legally protected interests of individuals and organizations within the shortest time possible.

      Forth, the suggested mechanism will positively affect overcoming of the legal nihilism of the Russians and create a favorable environment for development of the legal culture of our compatriots.

      Fifth, the novelty will positively affect the sense of responsibility of individuals for their actions, will facilitate their awareness of inevitable liability for violation of law requirements.

      Sixth, introduction of the above mechanism will create a favorable environment for the development of market (contract) relations and will decrease the quantity of illegal (ersatz) instances of dispute adjudication.

      Seventh, no additional funding will be required on the part of the state[1]; moreover, the state budget will get revenue in the form of tax and other proceeds. The financial burden will entirely be shifted onto unconscientious subjects of law, gradually and steadily inducing them to explore the law and to enhance their legal culture.

      On the whole, the suggested novelty will further strengthening of the Russian states authority in the world, since there will be no more grounds for accusations that the civil procedure of RF does not guarantee the citizens right of relief.



[1]  Currently the economic situation in the country does not, unfortunately, make it possible to introduce the institute of free legal assistance for persons of moderate means, although the need in such assistance is great.


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