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ACCESSIBILITY AND EFFECTIVENESS OF CIVIL PROCEDURE:
URGENT PROBLEMS AND THE WAYS OF SOLUTION THEREOF
Effective functioning of the judicial branch of the state power depends on successful implementation of a whole complex of economic, organizational, and legislative measures. The main ways of their implementation are outlined in the draft programs developed by the Judicial Department at the Supreme Court of RF and the High Arbitration Court of RF taking into account the opinions and suggestions advanced in the juristic literature, during discussions at scientific and practical conferences, at congresses of judges of RF. Many of the suggestions concern, in particular, issues of accessibility and effectiveness of the judicial protection of civil rights and political freedoms, the necessity to alter the judicial system of Russia, adoption of new codes of practice, etc.
1. Improvement of the Judicial System
For the past ten years the Russian judicial system has undergone significant changes. The Constitutional Court of RF and arbitration courts have been established, the right to establish constitutional (statutory) and magistrate’s courts has been granted to the subjects of the Russian Federation. The court-martial legislation has been adopted that has expressly determined their competence and organizational structure[1]. Bailiffs have been excluded from the staff of district common courts, and the Service of Bailiffs was incorporated in the Ministry of Justice and charged with execution of judicial acts[2]. The aforementioned organizational measures taken for improvement of the judicial system have undoubtedly produced a positive effect on enhancement of accessibility and effectiveness of the judicial system.
In the course of the discussion of the judicial system reform many suggestions about establishment of a multibranch system of specialized courts in the Russian Federation have been advanced. For example, it was suggested to establish administrative[3], land[4], labor[5], patent[6], and some other specialized courts (tax, juvenile, etc.). Art. 26 of the Federal Constitutional Law of RF dated 23 October 1996 On the Judicial System of the Russian Federation[7] gives certain grounds for such suggestions. Besides, some of the authors, in support of their suggestions, refer to the experience of other states (Germany, France, the USA, Canada), which have developed a large-scale system of specialized courts. Without rejecting, in principle, the idea of establishment of specialized courts in the Russian Federation, I would like to note the following.
First, practical realization of the idea of establishing specialized courts in the Russian Federation is partly an accomplished fact, which is evidenced by the existence of arbitration courts considering disputes arising from civil and administrative relations in the business sphere, courts-martial, the competence of which is considerably extended as regards the civil procedure, and magistrate’s courts being established at present by the subjects of the Russian Federation, which «specialize» in consideration of rather simple civil, administrative, and criminal matters.
Second, advocates of establishment of specialized courts do not always take into account the fact that practical realization of their suggestions will require heavy public material and financial expenses which the Russian economy simply cannot incur at present. Even common courts which tried in 2000 a record number of civil cases (over 5,1 million)[8] do not get sufficient financing and additional staff[9]. Nevertheless, the Supreme Court of RF has come out with the initiative to establish a four-section system of administrative courts that will require allocation of not only billions of Rubles, but also many dozens of thousands of square meters of premises[10]. In this connection, there arises the question whether it would be reasonable in such difficult economic conditions to disperse the funds allocated for establishment and financing of new judicial systems and would it not be better to spend these funds on strengthening and improving the existent judicial system?
Third, establishment of any specialized court will require hundreds and maybe even thousands of judges who should grasp the essence of those substantive law disputes that will be the subject of court proceedings (otherwise, the very idea of specialization becomes senseless). And again arises the question where to find so many specialists, who, apart from good knowledge of the subject of professional activities, would meet certain business, ethic, and other requirements made to judges?
And, finally, the fourth and likely the most important. Establishment of many specialized courts will result in the risk of disputes among them about jurisdiction. The judicial system will appear excessively fragmented which, as the Vice-Chairman of the Supreme Court of RF V.M.Zhuikov rightly remarks, «is extremely dangerous and undoubtedly threatens the whole state system, since it creates conditions provoking the subjects’ of RF default on the federal laws»[11]. Therefore, it is necessary to approach the issue of establishment of specialized courts as one of the means of improvement of the judicial system very carefully and deliberately. It is possible to raise the issue of establishment of one or another specialized court only when there are respective economic and legal prerequisites therefor. Economic prerequisites (availability of funds, premises, etc.) have already been mentioned. Legal prerequisites for establishment of specialized courts include the rules of the substantive law and the rules of the procedural law «servicing» the latter. It would be very desirable that the current courts be experienced in application of these substantive and procedural rules.
Substantive rules may either belong to one or to several branches of law similar in their substance. It would be desirable that substantive branches of law be also codified. At present, the examples of such branches are the civil, family, and labor law governing property and personal non-property relations between equal subjects through their incidental regulating methods. With account of the specific character of the mentioned substantive relationships and to be able to consider the disputes arising therefrom in common courts, the rules of the civil procedure law have been developed, the majority of which are included into the Code of Civil Practice (hereinafter - «the CCP»). Hence, the second obligatory prerequisite for establishment of specialized courts must be availability of a codified procedural act stipulating procedural peculiarities of trial of cases arising from those substantive relations which are referable to a court. However, the code of practice may be drafted and adopted concurrently with a law on a respective specialized court. The attempt to establish a specialized court by enactment of a law on the specialized court in absence of properly systematized substantive and procedural rules will result in the legislator facing a lot of problems whose correct solution will be rather problematic; these are, for example, the problems related to the optimal system of newly established courts, their tasks and objectives, the competence, jurisdiction, procedure of verification of lawfulness and justification of judicial acts, etc. And finally, establishment of specialized courts must be preceded by more or less lengthy practice in consideration of cases arising from those substantive relations which had been tried by common courts following the provisions of the code of practice according to a certain type of court procedures.[12] The above mentioned prerequisites existed in establishment of the system of arbitration courts in the early 90-ies. Thus, the majority of disputes which were previously considered by the bodies of the public and departmental arbitration were of the civil law nature and were regulated by the rules of codified normative acts (The Fundamentals of the Civil Law of the USSR and the Union Republics, and the civil codes of the latter, and somewhat later - by parts 1 and 2 of the Civil Code of RF (hereinafter - the CC of RF)). Certain rules of the procedural law were included in the Rules of Economic Disputes Consideration by the Bodies of the Public Arbitration. There existed a long-term and comprehensive practice of economic disputes consideration and adjudication on the basis of the rules of the substantive and procedural laws. For these reasons, the system of arbitration courts was established and organized considerably easily and smoothly in 1991-1992. However, regardless of availability of the above mentioned prerequisites, the initially established system of arbitration courts and the Code of Arbitration Practice of RF failed to meet all practical needs; in this connection, as early as 1995 a certain reform of the system of these courts and the regulations of court proceedings was again exigent. The success of the second reform of the arbitration court system and procedure seemed to be furthered by the fact that the State Duma on 5 April 1995 passed concurrently two fundamental laws: the Federal Constitutional Law On Arbitration Courts in the Russian Federation which determined the system, structure, and competence of arbitration courts, and the Code of Arbitration Practice of RF. Such legislative experience in establishment of specialized courts, when two interrelated and coordinated laws (on specialized courts and a code of practice) are adopted, may be regarded as ideal. Such approach enables the legislator to specify the system and structure and competence of every link of the specialized court system in the respective law, and in a procedural law (code of practice) - to regulate issues traditional for a normative act of such level: about participants of a process, jurisdiction, judicial costs, time periods, evidence, stages, judicial acts review procedure, etc.
For some reason, the aforementioned considerations about legislative and organizational measures for establishment of the system of arbitration courts were ignored by the Supreme Court of RF which submitted the draft Law On Administrative Courts in RF to the State Duma in 2000. It may be assumed that adoption and practical implementation of this law has currently no basis, either economic or legal. The very fact that administrative courts of all levels will need hundreds of judges, dozens of thousands of square meters of premises, hundreds of millions of Rubles and other material resources[13], which the State lacks at present, attests to the absence of economic prerequisites. The absence of legal prerequisites may be substantiated by the fact that the rules (substantive) of the administrative law, which must be a decisive criterion in determination of cases falling under the jurisdiction of administrative courts, are fairly different, disconnected, and non-codified. The Code of Administrative Offenses is an exception, but even it regulates rather a small group of public relations connected only with administrative liability. There is no code on the administrative practice, whose adoption in the near future is very problematic because of deep differences in the theory of the administrative law concerning the subject, method, and system of this branch of law, the range of public relations which should be regulated by the rules of the administrative procedure law, etc.[14] The draft law on administrative courts suggested by the Supreme Court cannot be passed at present, because it disregards serious economic and legal problems. Besides, it needs to be seriously improved as regards its substance. It is not incidental that the draft has already been criticized in the press.[15]
The aforesaid allows to conclude that in view of the absence of necessary legal and economic prerequisites for establishment of the wide-scale system of specialized courts, the problem related to accessibility of a relief and enhancement of effectiveness thereof should be solved by: a) specialization of judges of current courts (common, arbitration, courts-martial), and b) further improvement of the legislation of civil procedure, in particular, the types thereof.
2. Improvement of the Legislation of Civil Procedure
The contemporary Russian juristic literature contains a lot of suggestions aimed at introduction of amendments and addenda to the civil procedural legislation in order to enhance the effectiveness and accessibility of a relief at law. It is suggested, for example, that the rates of statutory duties be reduced depending on the financial status of a claimant (an applicant)[16]; reconciliation procedures for pretrial settlement of a dispute be introduced[17]; procedures for consideration of new categories of civil cases (related to emancipation, forced hospitalization of mentally sick persons) be provided for in the CCP[18]; jurisdiction of civil cases be extended; obligatory provision of free legal assistance be stipulated; certain procedural rules regulating proceedings in cases arising from administrative relations[19], etc.
Some of the earlier suggestions concerning improvement of court activities in civil cases with respect to enhancement of their effectiveness and accessibility have already been implemented. Inclusion in the CCP of the chapters on a court writ and judgments in absentia, appellate judgments review procedure and determinations of justices of peace; amendment of the whole group of the CCP rules related to jurisdiction, proving, cassation and supervision procedures, etc. - this is a far from complete list of legislative novels aimed at enhancement of effectiveness of court activities in civil cases. However, as certain experts in the procedural law justly remarked, the amendments introduced in the CCP do not completely solve the problems of improvement of the civil procedural legislation; besides, certain amendments and addenda are even erroneous since they are not always consistent with other provisions of the CCP[20].
The draft new version of the CCP is called to solve the problems of effectiveness and accessibility of justice in civil cases. It is assumed that the draft must be based on a principally new conception which, preserving justified ideas of lawfulness, adversarial nature, and option, should, at the same time, proceed from the fact that the new code must expressly regulate the correlation between private and public interests[21]. The private interest must prevail in matters concerning an access to a relief at law. In this connection, any obstacles impeding a free and easy access to a court of any person who is in need of a relief must be removed. Thus, the private interest must be taken into account in determination of the amount of legal costs, in consideration of jurisdictional matters, in improvement of optional and adversarial activities, in justification and execution of judicial acts.
Measures for facilitation of access to courts and enhancement of effectiveness of justice in civil cases must not be reduced only to adoption of a new, though more accomplished CCP of RF. As known, the effectiveness of even very accomplished laws may be reduced to naught by their improper application. Therefore, measures must be taken for fundamental improvement of court activities, in particular, improvement of reception of persons in courts, elimination of procrastination in courts, extermination of all kinds of procedural oversimplifications committed by judges, and enrolling the judges capable of proper administration of justice in terms of their professional and moral qualities, etc.[22].
It stands to reason that the new CCP of RF must preserve provisions on protection of the public interest which have proved in practice to be effective. It is necessary, for example, to preserve the right of a public prosecutor, public bodies, bodies of the local government to initiate civil cases when citizens’, the State’s and public interests require it. Besides, it is necessary to clarify and stipulate in the CCP of RF the circumstances under which governmental bodies could institute cases in protection of rights and interests of third parties. It is expedient to extend judges’ rights of control over lawfulness of public actions and resolutions by governmental bodies and their executives with respect to individuals. Unlike the rules of the current CCP which regulate indefinably the procedure of consideration of cases arising out of administrative relations, the rules of the new CCP of RF should be worded so that to become distinct and clear both for persons wishing to apply to a court for a relief and for the judges.
3. Improvement of types of the civil procedure
Put on the agenda, the problem of establishment of specialized courts makes to view the existent types of the civil procedure anew and, in particular, with respect to whether their legal regulation corresponds to the practical needs. The problem of types of the judicial procedure, being a part of the general problem of improvement of the civil procedural legislation, is singled out because the theory of the civil procedure does not give enough attention to it, though solution of the problem will, in many respects, further enhancement of the quality of justice in civil cases.
Lack of enough attention towards the types of the judicial procedure is attested by the fact that not all authors of text-books on the civil procedure recognize existence of types of the judicial procedure[23], and those who do recognize them do not always disclose the notion of a type of the judicial procedure[24]. The quantitative structure of the judicial procedure types is named variously, too[25]. How efficiently do the existent types of the judicial procedure protect substantive rights and interests of individuals and organizations, and what changes must be introduced to the civil procedure regulation of the types of the judicial procedure - these are the questions which still remain open for discussion. Without aspiring to give comprehensive answers to the above questions, it should be noted that a type of the civil procedure is a special procedural order of consideration of certain categories of civil cases conducted by an original court with the aim to optimally protect substantive rights and interests of legally interested persons who applied to the court, predetermined by the subject of the judicial procedure and provided for by the Code of Civil Practice.
Therefore, all types of the civil procedure are characterized by the following:
1) they are predetermined by a special group of substantive relations, which are the subject of court proceedings;
2) they consist of the totality of the civil procedure rules specially adapted for consideration of respective categories of civil cases;
3) they are stipulated in the section (chapter) of the current Code of Civil Practice;
4) they represent a special procedural form of consideration and adjudication of civil cases;
5) they are conducted by an original court;
6) they pursue the aim to ensure the protection of substantive rights and interests that are the subject of court proceedings as best as possible.
The main factor affecting appearance of a type of the civil procedure (except ex parte procedure) is the nature of the controversial substantive relationship which is referred to a court by a legally interested person. (Ex parte proceedings are predetermined by the requirement to establish a substantive juridical fact and, besides, this fact should not be connected with adjudication of a dispute about the right). Besides, a type of the judicial procedure is formed under the influence of principles of the civil procedural law, a method of the civil procedure regulation chosen by the legislator, a legislative technique, and considerations of the political and economic nature, as well as some other factors. Therefore, although any type of the civil procedure is a certain differentiation of the procedural form, it is, as a rule, governed by the majority of principles of the civil procedural law, derives the principal institutes of the latter, as well as the procedural rights and obligations of the subjects of civil procedural relations. The peculiarities incident to the specific type of procedure facilitate a more correct, quick, and fair adjudication of those categories of civil cases which have similar subjects of court proceedings.
As the legislative practice of the recent years shows, the strategy used by the legislator in enhancement of accessibility and effectiveness of justice came down not so much to the improvement of the legislation of civil procedure as to change of the judicial system of RF with concurrent extension of the jurisdiction of common courts over civil cases. The latter circumstance was the main cause for courts’ overloading, procrastination in civil cases, difficult access of individuals and organizations to justice.
To remedy the situation it is necessary to change the tactics of the legislative work. Henceforth, the principal attention should be given to improvement of the legislation of civil procedure, in particular, the types thereof, rather than to costly and complicated organizational arrangements like establishment of the system of administrative courts. The suggested measures, coupled with a small increase in the staff number of judges and arrangements for their specialization, will promote quicker and more efficient protection of violated or challenged rights and interests of individuals and organizations.
The principal type of the civil procedure was and remains the adversary procedure. The legal nature of this type is predetermined by peculiarities of civil, family, labor, and other substantive relations characterized by equality of persons. If any participant of these relations considers the behavior of the other participant as unlawful, he may apply to a court for protection of his rights or interests. The form of institution of a civil case is an action. The adversary form of a right protection is characterized by equality of contesting parties, operation of principles of the adversarial character and option. The current civil procedural legislation on the adversary proceedings gives grounds to support some of the suggestions concerning its improvement.
It is necessary to introduce reconciliation procedures in order to relieve the courts of the cases which could be adjudicated without a complicated and costly judicial procedure[26]. The necessity to consider so called indirect and class actions has arisen in connection with the market reforms in the economy[27]. Since the current CCP does not clearly regulate the procedure of consideration of actions filed to protect the rights of an indefinite circle of persons, this problem should also be solved in the new CCP of RF[28]. It is expedient to differentiate the rates of statutory duties depending on the financial position of a claimant (V.Yarkov) and introduce into the new CCP the rule of the so called «social legal assistance» for persons of scanty means who need a relief at law. Specified should be the rules determining participation forms of public prosecutors[29], governmental bodies, local authorities, organizations and individuals defending violated or challenged rights, freedoms, and legally protected interests of third persons. The institute of trial in absentia needs improvement, since the one currently in effect contains many controversies and inaccuracies.
Proceedings in cases arising from administrative relations (to be more precise - public relations) also require serious elaboration in the new CCP of RF.
The legal nature of the mentioned type of procedure is predetermined by peculiarities of the constitutional and administrative relations being the subject of the judicial procedure. These legal relations are characterized by that they arise, as a rule, between an individual, on the one part, and an administrative (governmental) body, on the other part. These legal relations have the nature of power and subordination, since an administrative body or its executive uses power with respect to an individual by performing any act or making decisions the individual may not agree with. Therefore, the latter is entitled to appeal against a decision or actions of an administrative body (its executive). The peculiarity of proceedings conducted in cases arising out of administrative relations consist in that a court is called not only to adjudicate a dispute between an individual and an administrative body (an executive), but also to exercise control over lawfulness of actions undertaken by the administrative body. This type of procedure is established, first of all, in the interests of an individual, which fact predetermines existence of many procedural peculiarities. Thus, a case is instituted against an individual’s complaint or an application of a group of individuals or public organizations (in disputes concerning a suffrage). As a rule, an individual is relieved of payment of a statutory duty; cases must be considered within reduced time periods; jurisdiction over cases is determined according to an individual’s residence location, the obligation to prove is that of an administrative body, etc.
At the same time, it should be noted that a number of the rules of the current CCP are imperfect and non-coordinated to a certain extent. It is necessary: to precise categories of cases arising from public relations and falling within the jurisdiction of common courts; to indicate in the CCP the subject of proving in every category of cases; to relieve all claimants of payment of a statutory duty in cases attributed to the type of procedure concerned; to preserve the rule about reduced trial time of cases arising from public relations, at the same time indicating specific time periods of trial of each category of civil cases; to provide for immediate enforcement of judgments by granting the contesting parties the right to appeal against all judgments issued by original courts.
The ex parte proceedings are regulated rather clearly and comprehensively in the current procedural legislation. It is deemed possible to support the suggestion of the drafters of the new CCP of RF concerning supplementation of this type of procedure with three types of cases: recognition of an under-aged person as emancipated, forced hospitalization of a person in a mental hospital, and restoration of the lost judicial or executory process records.
Introduction of the chapter about a writ into the CCP of RSFSR allows to agree with Prof. I.M.Zaitsev’s opinion to the effect that a new type of the civil procedure has appeared in the civil process - the writ procedure[30]. The legal nature of this type of procedure is also predetermined by peculiarities of those substantive relations which are referred to a court. The comprehensive list thereof is set forth in the current CCP. It is characteristic of these legal relations that they have, in fact, an incontrovertible nature, are aimed at recovery of money or movable property, and are confirmed by documents evoking no doubt as to their identity and authenticity.
The incontrovertible nature of substantive relations being the subject in the writ procedure means that a debtor does not obviously contest a creditor-applicant’s claims, or he keeps silent, in no way expressing his attitude towards the claim concerned, however doing nothing to return the money or property. Therefore, the only aim of a court’s interference in such substantive relations is to eliminate uncertainty in the parties’ relations by confirming the rightfulness of the claimant by delivery of a writ to him.
The currently effective procedure of a writ delivery seems to be rather complicated and lengthy, which does not fully correspond to the principle of the procedural economy. In this connection, the following provisions contained in the draft CCP of RF warrant support: expansion of the list of requirements to the issue of writs and speeding up consideration of respective cases (for example, to issue a writ within three days from the date of the application submission to the court).
Summing up the aforesaid, the following conclusions should be made.
1) At present accessibility and effectiveness of a relief at law should be enhanced not by establishment of new specialized courts, but by extension of the competence and improvement of the system of non-judicial jurisdictional bodies (non-public arbitration courts, notaries, bodies of labor disputes settlement, administrative bodies).
2) Enhancement of accessibility and effectiveness of the judicial system may be furthered by adoption of the new CCP of RF, which should provide for four types of the civil procedure (adversary, administrative, ex parte, and writ); certain procedural institutes (the institute of evidence, legal costs, representation, jurisdiction, etc.) as well as stages of the civil process should be improved.
3) The current practice of specialization of judges in certain categories of civil cases consideration must be preserved and improved; the organizational work related to recruitment of judges and provision of office equipment to the courts, as well as the procedure of persons reception should also be improved, etc.
[1] See: The Federal Constitutional Law dated 20 May 1999, On Courts-Martial of the Russian Federation. Collected Laws of RF, 1999, No. 26, Art. 3170. About new provisions of the Law see: N. Petukhov, the Federal Constitutional Law On Courts-Martial of the Russian Federation. Rossiiskaya Yustitsiya (The Russian Justice), 1999, No.9, pp.7-8, 5-7.
[2] See: The Federal Law dated 21 June 1997 On Bailiffs and On the Executory Process. Collected laws. 1997, No.30, articles 3590, 3591.
[3] See: V.Lebedev, Ot kontseptsii sydebnoj reformy k novym ideyam razvitiya sydebnoj sistemy. (From the Concept of the Judicial Reform to New Ideas of Development of the Judicial System). Rossijskaya Yustitsiya (The Russian Justice). 2000, No. 3, pp. 2-3.
[4] See: V. Dikusar, Zemelnye sudy - v Rossii? (The Land Courts - in Russia?). Rossijskaya Yustitsiya (The Russian Justice), 2000, No.3, pp.2-3.
[5] See: A. Khristoforov, V. Meshcheryakov, Rossii nyzhen patentnyj sud. (Russia Needs a Patent Court). Sovetskaya Yustitsiya (The Soviet Justice), 1993, No. 23, p.6.
[6] See: V.I.Mironov, Istoriya trudovogo prava: teoriya i praktika (History of the Labour Law: Theory and Practice). Gosudarstvo i Pravo (The State and the Law), 1998, No. 12, pp. 58-59.
[7] See: Collected laws of RF. 1997, No. 1, Art.1.
[8] See: The report by V.Lebedev, the Chairman of the Supreme Court of RF, at the V-th All-Russian Congress of Judges. Rossiiskaya Yustitsiya (The Russian Justice), 2001, No. 1, p.5.
[9] The Explanatory Note to the draft Federal Law On Bringing in Line the Staff Number of Judges and Employees of Federal Courts with f the Working Load Standards prepared by the Supreme Court of RF in April 2000 states the exigency of increase of the staff number of judges and employees of common courts from 16742 in 2000 to 123162 in 2010, and that will require increase of funds from 2458.8 million Rubles in 2001 to 4985.8 million Rubles in 2010. Apart these funds, the acquisition, reconstruction, maintenance, offices and buildings rent, bringing them in line with elementary standards of accomodation of civil servants and of administration of justice will annually require about 5 billion Rubles. See: Rossijskaya Yustitsiya (The Russian Justice), 2000, No. 11, p.18.
[10] See: The Explanatory Note to the draft Federal Law On the Federal Administrative Courts in the Russian Federation. Rossijskaya Yustitsiya (The Russian Justice), 2000, No. 11, p.19.
[11] See; The Federal Constitutional Law On the Judicial System of the Russian Federation. Comments by V.M.Zhuikov, Vice -Chairman of the Supreme Court of RF, Doctor of Law. Gorodets. Moscow: 1998, p.12.
[12] V.V. Yarkov notes the important role of the court practice in filling in the gaps in the legal regulation. See: V.V.Yarkov, Vliyaniye reformy chastnogo prava na razvitiye sistemy i form grazhdanskoj yurisdiktsii. (Influence of the Reform of the Private Law on the Development of the System and Forms of the Civil Jurisdiction). Intercollege collected works: Teoreticheskiye i ghbrkflnyye problemy grzhdanskoi yurisdiktsii (Theoretical and Applied Problems of the Civil Jurisdiction.) The Urals State Academy of Law. Ekaterinburg: 1998, p.62.
[13] See: The Explanatory Note to the draft Federal Constitutional Law On the Federal Administrative Courts in the Russian Federation. Rossiiskaya yustitsiya (The Russian Justice), 2000, No. 11, pp.19-20.
[14] See: I.V. Panova, Administrativno-yurisdiktsionnyi protsess. (The Administrative Jurisdictional Process) . Svetopis, Saratov, 1998. Gosudarstvo i pravo (The State and the Law), 1999, No.10, p.5-26.
Yu.N.Starilov, O sushchnosti i novoy sisteme administrativnogo prava: nekotoryye itogi diskussii. (The Essence of the New System of the Administrative Law: Certain Results of the Discussion). Gosudarstvo i pravo (The State and the Law), 2000, No.5, pp. 12-21.
A.A. Demin, Ponyatiye administrativno-protsessualnogo zakonodatelstva Rossiiskoi Federatsii (The Idea of the Legislation of Administrative Procedure). Gosudarstvo i Pravo (The State and the Law),. 2000, No.11, pp.5-12.
[15] See: Kryazhkov, Yu. Starilov, Administrativnyye Sudy: kakimi im byt?, .(Administrative Courts: What should they Look Like?). Rossiiskaya Yustitsiya (The Russian Justice), 2001, No.1, pp. 18-20
[16] See: V. Yarkov, Dostupno li grazhdanam nashe pravosudiye?: (Is our Justice Accessible for our Citizens?). Rossiiskaya Yustitsiya (The Russian Justice), 1999, No. 2, p. 26.
[17] See, for example,: T.V. Sakhnova, Grazhdanskoye protsessualnoye pravo Rossii: perspektivy razvitiya (The Law of Civil Procedure of Russia: Prospects of Development) Gosudarstvo i pravo (The State and the Law), 1999, No. 12, p.35.
E.M. Muradyan, O printsipakh grazhdanskogo sudoproizvodstva, (Principles of the Civil Procedure). Sovremennoye pravo (The Contemporary Law), 2000, No. 6, p.40.
[18] See: M.Shikaryan, Prinimat li novyi GPK ili podpravlyat staryi? (Is it Necessary to Adopt a New CCP or to Amend the Existent One). Rossiiskaya Yustitsiya (The Russian Justice), 1999, No. 2, pp.18-20.
[19] V.Tupikov, Priroda del, voznikayushchikh iz administrativno-pravovykh otnoshenii. (The Nature of Cases Arising from Administrative Relationship). Rossiiskaya Yustitsiya (The Russian Justice), 1999, No.7, pp.18-20.
I.Panova, Reforma administrativnogo proizvodstva nazrela. (The Reform of the Administrative Procedure is exigent). Rossiiskaya Yustitsiya (The Russian Justice), 2000, No.1, pp.53-54.
V.P. Antonova, Instituty administrativnogo prava.. (The Institutes of the Administrative Law (the Third Lazarev Conference). Gosudarstvo i Pravo (The State and the Law), 1999, No. 10, pp.6-7
[20] See: M. Shakaryan, ditto, p.18, T.V. Sakhnova, ditto, p. 31.
[21] See: T.V. Sakhnova, ditto, p. 32. V.V. Yarkov, ditto, p. 54.
[22] See: V.Pastukhov, Chto lyudyam ne nravitsya v rossiiskom pravosudii? (What do persons not like in the Russian Justice?). Rossiiskaya Yustitsiya (The Russian Justice ). 1998, No.8, pp.22-23.
[23] See: Sovetskii grazhdanskii ptotsess (The Civil Process). Published by the Moscow University. Moscow, 1964, pp.5-9 (the author of the chapter is A.F.Kleinman). Sovetskoye grazhdanskoye protsessualnoye pravo (The Soviet Law of Civil Procedure), Vysshaya shkola, Moscow, 1967, pp. 8-13 (the author of the chapter is M.A.Gurvitch). Sovetskii grazhdanskii protsess (The Soviet Civil Process), Vyshaya shkola, Moscow, 1975, pp.4-6 (the author of the chapter is M.A.Gurvitch).
[24] The works by D.M.Chechot and A.A.Melnikov are the only exceptions. See: D.M.Chechot, Problema zashchity subektivnykh prav i interesov v poryadke neiskovykh proizvodstv sovetskogo grazhdanskogo protsessa (The Problem of Protection of Legal Rights and Interests in Ex Parte Proceedings of the Soviet Civil Procedure), abstract from the doctoral thesis, Leningrad, 1969, p.18. Kurs sovetskogo grazgdanskogo protsessualnogo prava (The Course of the Soviet Law of Civil Procedure), volume 1, Nauka, Moscow, 1981, p. 123 (the author of the chapter is A.A.Melnikov). Grazhdanskii protsess (The Civil Process). Text-book, the second edition, Prospekt, Moscow, 1999, p.12 (the author of the chapter is D.M. Chechot).
[25] The majority of the authors traditionally name three types of the judicial procedure: the adversary, that arising from administrative relations, and ex parte. See, for example, Grazhdanskoye protsessualnoye pravo Rossii (The Law of Civil Procedure in Russia). Text-book, 2-nd edition, Bylina, Moscow, 1998, p.27 (the author of the chapter is M.S.Shakaryan). Grazhdanskii protsess (The Civil Process).Text-book, 3-d edition, BEK, Moscow, 1999, pp.7-8 (the author of the chapter is I.V.Reshetnikova). Grazhdanskii protsess (The Civil Process). Text-book, 2-nd edition, Prospekt, Moscow, 1999, pp.11-13 (the author of the chapter is D.M.Chechot). Grazhdanskii protsess (The Civil Process). Text-book, 3-d edition, Gorodets, Moscow, 2000, pp.34-35 (the author of the chapter is M.A.Treushnikov). Only I.M.Zaitsev names four types of the procedure, supplementing the above mentioned types with the procedure related to a writ issue. See: M.A.Vikut, I.M.Zaitsev, Grazhdanskii protsess Rossii (The Civil Process in Russia). Text-book, Yurist, Moscow, 1999, pp. 25-26 (the author of the chapter is I.M. Zaitsev).
[26] See: T.V.Sakhnova, ditto, p. 35. E.M.Muradyan, ditto, p. 40.
[27] See: V.V.Yarkov, Novyye formy iskovoi zashchity v grzhdanskom protsesse (gruppovye i kosvennye iski) (New Forms of Adversary Defense in a Civil Process (Class and Indirect Actions), Gosudarstvo i pravo (The State and the Law), 1999, No.9, pp.32-40. The Civil Process. Text-book, 3-d edition. BEK, 1999, pp. 235-246 (the author of the paragraph is V.V.Yarkov).
[28] See: N.S.Batayeva, Sudebnaya zashchita prav i interesov neopredelennogo kruga lits. (Protection of Rights and Interests of an Indefinite Circle of Persons). An abstract from the doctoral thesis. Moscow, 1999, pp.18-20.
[29] See: for example, R.F.Kallistratova, I.A.Prokhodko, M.Sh. Patsatsiya, Prokuror v arbitrazhnom i grazhdanskom protsessakh: aktualnyye problemy zakonodatelnogo regulirovaniya (A Public Prosecutor in the Arbitration and Civil Processes: Actual Problems of Legislative Regulation), in: Collected Articles: Printsipy grazhdanskogo protsessualnogo prava, ikh realizatsiya v proekte GPK Rossii. (Principles of the Civil Procedure Law,Their Implementation in the Draft CCP of Russia), Tver, 2000, pp. 26-36. I.A.Prikhodko, Prokuror v arbitrazhnom sude: problemy publichnogo iska i zashchity ot nego ( A Public Prosecutor in an Arbitration Court: Problems of a Public Action and Defense against it). Arbitrazhnyi i Grazhdanskii Protsess (The Arbitration and Civil Process), 2000, No.3, pp.24-32.
[30] For more detailed justification of the fact that the writ procedure is the fourth type of the judicial procedure see: M.A.Cheremin, Prikaznoye proizvodstvo v rossiiskom grazhdanskom protsesse (The Writ Procedure in the Russian Civil Process), Moscow, Gorodets, 2001, pp.55-121. I.N.Polyakov, Prikaznoye proizvodstvo: ponyatiye i pravovaya priroda. (The Writ Procedure: Notion and Legal Nature), in: Aktualnyye problemy pravoporyadka. Sbornik nauchnykh statei (Actual Problems of Law and Order), Collected scientific articles, 3-rd edition of the Institute of Law of MGU PS, Moscow, 2001, pp. 137-148.
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