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E.M. Muradyan,
DOCTOR OF LAW,
SENIOR RESEARCH ASSISTANT,
THE SECTOR OF JUSTICE,
THE INSTITUTE OF STATE AND LAW,
THE RUSSIAN ACADEMY OF SCIENCES



DRAFT CODE OF CIVIL PRACTICE IN THE CONTEXT OF HARDLY PROBABLE CODIFICATION OF JUDICIAL LEGISLATION FUNDAMENTALS


      Publication of the monograph Problemy sudebnogo prava (Problems of the Judicial Law) by N.N.Polyanski, M.S.Strogovich, B.M.Savitski, A.A.Melnikov, (Moscow, Nauka, 1983), was an event that challenged many scholars dealing with judicial procedures, who concurred in their negative attitude towards the concept of the judicial law. In 1996 the Treushnikovs (farther and son) for the first time published, with the preface written by the father, the classical research Edinstvo protsessa (Unity of a Process) (Moscow, Gorodets) written by V.A.Ryazanovski as far back as 1919, which was of great importance for comprehension of the essence and institutes of the judicial law. Publication of the text-book Ugolovnyi protsess (The Criminal Process), edited by I.L.Petrukhin (Moscow, Prospekt, 2001), looks rather unpretentious. Apart from the great number of text-books on the criminal and civil procedure existent nowadays, it dwells on the judicial law in a separate, although laconic paragraph, which may also be assessed as positively searching; the idea that the judicial law may be viewed more widely in connection with the reform of the judicial system is expressed in this paragraph. In my opinion, being a nominal unity, it is a complex multi-system formation (common and specialized courts, the constitutional justice). I.L.Petrukhin suggests an original comparative analyses of the principles of the civil and criminal processes. Earlier this author grounded the idea of strengthening the principle of option in the criminal procedure (Rossijskaya Yustitsiya (The Russian Justice), 1999, No.3). It is possible to assert that option will have to be transferred from a branch principle to the range of interbranch principles, which also strengthens the idea of the judicial law.

      Why do the advocates of the judicial law make a reservation against codification of the judicial legislation? Probably, because it is impossible to effect a thorough codification rejecting certain codes of practice.

      There is no complete readiness for such extremely complicated work, but it should be carried out already now, without haste and profoundly. Today another model is more practical - codification of fundamentals of the judicial legislation, where branch codes reconciled with the basic (codifying) act remain fully operative. This model will also be argued, because so far not even an outline of the plan has been at least published, not to mention a draft law.

      Dwelling upon the problem, D.M.Chechot mentions the Judicial Code of Russia. The author writes: If the issue of its drafting is not raised , then what is the practical sense of the theory of the judicial law?) (Grazhdanskij protsess (The Civil Process), the text-book edited by V.A.Musin, N.A.Chechina, D.M.Chechot. Moscow, Prospekt, 1996, p.23.).

      In essence, it is natural to raise the question, but there is no reason to speak seriously about the Judicial Code. Otherwise it turns out that the fundamental act with its superior legal effect, functionally connected with the branch codes which should be derived from and in line with the Fundamentals, have one and the same legislative form. The Fundamentals of the judicial legislation (or the judicial law) are more significant than a code. Unlike the branch procedural codes, it must be a Federal Constitutional Law of RF. There is enough time ahead to specify the title and the form of the act. It is not at all necessary to stick to stereotype titles (such as Fundamentals...).

      Here is the range of issues to be covered by the suggested draft law:

      -  A court, a subject of the judicial power. Its authoritative powers. Judicial methods. Superiority of the judicial power over the other powers. Judicial law-making.

      -  Principles of the judicial process. Independence, safety of judges. Impartiality and subordination of a judge only to a law. Respect to the dignity and rights of a party to a process. The truth. Lawfulness. Equity.

      -  The adversarial nature of a process. Equality of all before the law and court.

      -  Publicity. Freedom and accessibility of a relief at law. Procedural equality of rights. Equality of all before the law and court.

      -  Option as an interbranch principle. The priority of the principle of option in private cases. Concerted approaches, reconciliation procedures as an expression of the positive nature of the judicial process.

      -  Freedom of appeal. Prohibition to aggravate the position of an individual as a result of consideration of his appeal against a judicial act.

      -  Distribution of the jurisdiction (between common and other courts).

      -  Subjects of a process, their procedural independence. A party to a process, its absolute procedural rights. Parties rights of option. Parties rights exercised by agreement (between the parties).

      -  Representation. Defense. A counsel at law.

      -  Functional interrelations between courts. Procedural institutes-interventionists (Letters of request. A civil action in a criminal process. A class civil action in a criminal case. Presentation of evidence. A courts inquiry to the Constitutional Court.).

      -  Freedom of selection of judicial procedures.
      -  Defense of a public interest in court.

      -  Evidence. Evidential presumptions. Collateral estoppel.

      -  Procedural analogy.

      -  The data bank of judicial acts. The bank of judicial reports. The bank of cases.

      Preparation of the Federal Constitutional Law adequately expressing the idea of the judicial law is facilitated by actual readiness of three draft codes of practice. The same fact subjectively has a negative effect. Transfer of efforts to drafting of a general judicial law presupposes (as an optimal variant) stay in the progress of all draft codes of practice until the draft of the general judicial legislative act is completed.

      It is the comparison of the three drafts that reveals the following:

      1.  these documents lack for adequate unity and coordination objectively existent in judicial principles;

      2.  there is a possibility to fix common principles of the judicial legislation, fundamental values of justice and state;

      3.  in view of the two above-mentioned considerations, there arises a favorable possibility to synchronize finalizing of all the drafts.

      Protection of a victim and a witness is a very important, consisting of contradictions problem which is critical in a criminal process and latently significant in a civil process. Suggestions were made to use electronic and other special facilities (they allow to disguise an appearance and change a voice), video conferences, etc. They are actually new procedures in the sphere of the court process which are attractive, dangerous, and risky, since the justice itself may eventually become injured, compromised. It is necessary to adopt the rules which would be included into the general judicial law, or to pass a special law on a judicial experiment. Below follow the initial points for discussion.

      1.  The proposed novel is contrary to the rules of examination of the judicial evidence, to a partys right of confrontation, to the principle of direct court proceedings. Hence, first of all, the necessity of one or another special procedure using technical facilities (tentatively, a technological judicial procedure) should be preliminarily determined in every case.

      2.  Preliminary discussion is conducted by a collegiate court with participation of:

      a)  the parties;

      b)  their qualified representatives;

      c)  neutral persons not participating in the process, experts in the sphere of the respective exact sciences and their technological facilities (by their competence excelling the operators who will conduct the technological procedure).

      3.  Purity, authenticity of judicial technological procedures require that the law stipulate obligatory participation of persons listed in para 2 at all stages of their preparation and conduct, as well as enhanced procedural guarantees. The law should prohibit to ground accusation on the data received during experimental procedures. It is a priori and axiomatic, since it will be unambiguously provided for in the law. At the same time, it is not prohibited, in principle, to use respective data in the interests of the defense. An exceptional advantage for the defense consists in the absolute prohibition for the prosecution to develop and plead the case on the basis of the data received in the judicial technological procedures as long as they are of an experimental nature .

      About the glossary. We have to use the conjunctive mood here. If the judicial law is adopted, the best variant would be to compile a unified glossary as an integral part thereof. Then all differences, alternative versions, free interpretation of the law will be excluded. If the idea of codification of the judicial legislation fundamentals is rejected (postponed), the glossary would be necessary as a part of every code of practice. There is another method: definitions, terminological clarifications and explanations are given in the text, but the method is not simpler for the authors - compilers. The international experience which attests expressly in favor of a glossary as a modern means facilitating application of law must also be taken into account.

      Now some of the issues of the CCP itself. First of all, provisions of the judicial law must not be repeated there. If the latter has a glossary, then naturally the option will also be included there as an interbranch principle. In a more probable case - absence of the judicial law - the essence of the principle of option must be revealed along with other principles in the CCP as its rule, or in the glossary attached to the Code. The following objections are possible: there was no mention of option in the former codes, nor such term was used. The answer should be as follows: the principle of option stipulated in the CCP of the new millennium is different, more complete, but the ideas thereof even in text-books are contradictory, and a code is adopted for a person who should and is entitled to have not a vague but a clear and correct idea of what the option of his rights and remedies means.

      A code is an official, but not a formal document. It is from the CCP that optimistic persons draw their idea of a court and rules of the judicial procedure. A person is entitled to seek in the CCP all probable types of actions (and the draft yields even to part 1 of the CC, where certain types of actions are indicated actio negatoria, a replevin, etc.) It is time to determine our position as to a preventive action connected with notification, for example, of an employee by his employer of the pending dismissal as from a certain future date. Such action may be filed by a testator to have his testability in making testamentary prescription confirmed just before certification of this act, in order to exclude probable subsequent disputes concerning invalidity of the will which could arise after commencement of inheritance. An action of giving a notice (warning) to a parent neglecting his parental obligations seems to be more civil than an action of deprivation of parental rights. (For more details see: Gosudarstvo i pravo (The State and the Law), 2001, No.4).

      The category of a fictitious action is worthy to be included in the CCP.

      It is time to include the jury trial in the list of forms applicable in a civil process (in disputes related to establishment of paternity, ecology, town-planning, etc.). The arguments in favor of the foregoing were given in my articles published in Sovetskaya Yustitsiya (The Soviet Justice), 1988, No.9 and 1989, No.7. The life has advanced a priceless argument a practical experience in application of this form in the criminal process. A series of persuasive civil processes that were simulated with participation of true, in all respects, Moscow judges and shown on TV was also a good argument in favor of introduction thereof.

      One should not advance requirements to the draft CCP which should be addressed, for example, to the science of criteria of differentiation of the adversary and ex parte proceedings. If one begins to think about the reason of absence of the rules on the procedure similar to consideration of cases related to release from the military service on the ground of religious convictions (as it was stipulated in the CCP of RSFSR, 1923, articles 226-230), the first thought that comes to mind is that such cases will not be considered by courts. Another assumption is also probable. It is not correct to refer such cases to ex parte proceedings, and since there is no principle of listing the case categories in the adversary defense, the latter avoids the principle of enlistment, all the more, classified listing - this kind of defense is universal as to the sphere of application - then the absence of the reference to this category of cases in the new draft CCP may be interpreted as attributing it to adversary rather than to ex parte proceedings. Hence, the legislator has not diminished any possibility of a relief as compared with the first Soviet CCP. This does not exclude the expediency to discuss peculiarities of trial of the mentioned category of cases. Former stereotypes, complicated procedures stipulated in the rules of the Code of 1923 must not dominate over the legislator.

      The draft CCP should provide for transfer of cases instituted in ex parte proceedings to adversary proceedings without stay. This is very essential from the viewpoint of avoidance of bureaucratization of judicial procedures and accessibility of a relief.

      Supporting the construction of a class action effectively developed by M.D.Lukashova and other authors, I suggest introducing the institute of the class response (to be able to adjudicate claims for damages when a claimant is unable to identify the firm tortfeasor, and in my opinion, distribution of liability between potentially involved persons is the way out of the situation).

      The issue of a class action warrants discussion and legalization in the criminal process, within the framework of the institute of civil action.

      The CCP naturally preserves the institute of compromise. Along with traditional compromise, the following procedure should be admitted. Both parties submit an application to the court, stating that they have reached a compromise which will not be presented to the court for considerations of the commercial or industrial secret, or for any other lawful reasons, and request that the court abate the proceedings. The parties themselves run the risk of possible illegitimacy of or default on the terms of the compromise.

      It is very important for a lawyer, all the more for a non-lawyer, that the CCP should be attached with templates of procedural documents. It is necessary to put away the arrogance of all-knowing experts and condescend to the position of a person who is entitled to have a law comprehensible to all and to know how to overcome the feeling of being legally unprotected with its help and relying on judicial procedures. After all, justice is not only for VIPs.


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