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N.A.Rassakhatskaya,
DOCTOR OF LAW,
THE CHAIR OF CIVIL PROCESS,
THE SARATOV STATE ACADEMY OF LAW



PROBLEMS OF SPECIALIZATION OF CIVIL PROCEDURE


      1. The category of effectiveness as applicable to the procedure of justice administration in civil cases may be represented at least in two aspects: first, with respect to court activities - delivery of a lawful and grounded judgment; second, with respect to rights protection the effectiveness will be achieved only if a judicial act acquires features of real feasibility.

      The issues of effectiveness and accessibility of civil and arbitration procedures have repeatedly been in the focus of interest of scholar-lawyers. Besides, the above issues are a part and parcel of the issue of specialization, including the civil procedural activities and the rules regulating it, since it is the specialization that conditions effectiveness and accessibility of the respective order.

      The category of specialization, as applicable to judicial bodies and following its etymological meaning, presupposes that:

      -  a case is adjudicated by a person well versed in the issues concerned - by a professional;

      -  an optimal consideration of various cases within the framework of one process is ensured when the internal specialization is implemented;

      -  realized is a certain group of legal relations, the specific nature of which in some cases may require elaboration of a separate procedural form and in other cases such requirement may not arise, but the procedural order unavoidably acquires specific features, nevertheless allowing them to function within the framework of the common process;

      -  undoubtedly, the rules regulating a respective type of procedural relations and reflecting a corresponding specific character must be established.

      The specialization of the civil procedural activities may be conceived at two levels: 1) external specialization - in the aspect of differentiation of the legal system and types of the procedural activities. The purpose of such specialization is to reveal and form new procedural branches of law. Undoubtedly, in this case the system of the civil procedural law will be involved; 2) internal specialization, the subject of which is the system of the civil procedural law and, accordingly, the system of the civil proceedings. In its turn, this specialization is manifested in the framework of regulation of similar specific groups of relations and separation of respective types of procedure: adversary - in cases arising from public relations and ex parte proceedings. Distribution of cases between jurisdictions of a justice of the peace and a district court is another result of the specialization. Besides, within the context of separate types of procedure a more detailed (fragmented) specialization is possible according to specific categories of cases with attachment of certain specific features to the procedural form of their consideration.

      Let us trace these features of specialization as applicable to the current judicial system. The current legislation does not denote courts as specialized bodies, however, in the juridical literature one or another court is very often indicated as a specialized body.[1] Moreover, in order to solve the problem of effectiveness of the judicial procedure, the jurisprudence advances a lot of grounds in favor of establishment of specialized courts in the Russian Federation, such as administrative, labor, tax, patent, bankruptcy, etc..

      A body having the following features is deemed specialized:

      First, it is a body established for adjudication of a certain range of cases (i.e. the sphere of its activities is expressly specified by law, in other words, its specialization is revealed). The cases concerned should have an express specific nature which determines their consideration by this particular body (court). They must have a feature which allows to consider them within the framework of a body (court) of a certain type, for example, a common court. The range of these cases must be either expressly specified by law, or the features thereof must be stipulated in the rules.

      Second, the body concerned functions following a codified act, i.e. the rules regulating its activities should be isolated from a group of rules regulating other relations. In fact, it is necessary to agree with V.D.Sorokin in whose opinion the degree of isolation is a very tentative criterion, since the possibility of such isolation remains potentially in future[2].

      Third, isolation of a certain uniform group of relations requiring independent regulation rather than of groups of rules must take place, since the nature of the rules is determined by a respective character of relations.

      Forth, this body should have its own procedural form, nevertheless allowing to include its activities, same as the aggregate of rules, in the unified system.

      In its turn, the definition a specialized body is not quite correct. The analysis of the current judicial system from the above provisions viewpoint leads to the conclusion that the judicial bodies, existent at present, cannot be recognized as specialized bodies. Or, on the contrary, they all may be defined as such since the purpose of their activities is to solve a range of problems referred to their competence by law.

      The law sets forth three main forms of a relief at law. Without going into polemics as to the possibility of separation of an independent constitutional procedural form (since, according to the law, such form is, first of all, fixed in the rules of the Constitution of RF), it is possible to doubt not so much the possibility as the necessity of separation of specialized judicial bodies and, first of all, within the framework of the so called administrative justice.

      Art. 118 of the Constitution of RF states that the judicial power is exercised through constitutional, civil, administrative, and criminal procedures. Nevertheless, the Federal Constitutional Law On the Judicial System does not contain any provisions attesting to availability of administrative courts in the framework of the unified judicial system.

      Just on the contrary, the arbitration procedure, being regulated by a respective legislative act (the Code of Arbitration Practice) and having its own judicial bodies, is not stipulated in the Constitution of RF as an independent branch of the judicial power. This circumstance served as an additional argument advanced by the advocates of unification of arbitration and civil procedures within the framework of the single procedural form.[3] To put it differently, normative regulation does not always reflect the objectively necessary (demanded by practice) model of the judicial system.

      Without going into debates as to the place of the rules of the arbitration procedure in the legal system (since the issue concerned is a topic for a separate research), let us dwell upon determination of the criteria and consideration of principal arguments about possibility to single out the administrative justice in the Russian legal system, and at the same time, to raise the problem of expediency to single out other procedural branches of law than those singled out traditionally.

      The authors suggest that the nature of substantive relations predetermining the necessity to apply special procedural forms to settle a dispute taken as the basis of the idea of separation of the administrative process (proceedings). In certain works an attempt is made to justify not only the above mentioned process within the framework of the judicial system, but also application of the procedural characteristics to the activity connected with imposition of administrative sanctions.[4]

      Actually, in the totality of cases the so called administrative cases, having a certain specific character, differ from all other cases considered in civil proceedings exactly by their public nature, subordinate position of subjects in substantive relations. Potentially, this specific character could condition (along with other factors) formation of a respective procedural form as an independent element of the judicial system - specialized administrative courts. Nevertheless, separation of such courts, though as well as other specialized judicial bodies, should be first of all conditioned by a number of factors and predetermined, if necessary.

      The main argument of disagreement with the above suggestion about establishment of administrative courts may be inexpediency of their establishment, lack of need in such reorganization of the judicial system and the civil procedural form. At present, cases arising from public (administrative) relations are rather efficiently adjudicated by common courts within the framework of the civil process.

      2. Undoubtedly, the attention should be focused on identification of the reasons which at present impede an effective administration of justice and execution of judicial acts. In literature the overloading of courts with cases was pointed out as one of such impeding factors. This conclusion, in its turn, predetermines the necessity to simplify the civil procedural form, to introduce alternative procedures of disputes settlement. Evidently governed by these reasons, the legislator established a normative regulation of the writ procedure and the possibility of judgments delivery in absentia. Let us try to analyze positive and negative aspects of these legal institutes as applicable to the category of effectiveness, without going into details of their procedural characteristics (relations arising within the framework of this activity are exactly of the procedural and not legal nature).

      An argument usually advanced in favor of the aforementioned statements is that these procedures have allowed to simplify the civil procedural form and, as a result, the courts have managed to lift off a part of their load. However, the court practice shows that the respective volume of the load has been relatively diminished or, to be more exact, redistributed owing to introduction of the institute of justices of peace.

      It should be admitted that without contesting lawfulness of the constitutional stipulation of the right of relief, it is necessary to pursue the judicial reform taking into account the objective necessity and the nature of a body considering a case, including its procedural characteristics, rather than extending unconsciously the bounds of the judicial jurisdiction.

      Thus, for a long time the internal specialization of the civil procedure, in particular, the trial procedure of cases arising from public relations, has been debated. Besides, most of the authors pointing out the specific features of these court proceedings disregard ex parte proceedings. Meanwhile, it is these proceedings, as well as the writ proceedings, that should be brought out of the framework of the civil procedural form as the procedures having incontrovertible cases as their subject.

      In terms of its nature the civil procedure is the activity the subject whereof is contestable cases. Incontrovertible matters should be brought out of the framework of the civil process and referred to consideration by respective administrative registration bodies. The effectiveness of defense, and in this case it would be more correct to say the effectiveness of the protection of rights, will in no way be prejudiced, as soon as such bodies have respective specialization for consideration of such matters. Besides, origination of a dispute will enable interested persons to apply to a court.

      As to the proceedings in absentia, its presumed function in practice has not attained the purpose set by the legislator. Adjudication of a case through proceedings in absentia has not become quicker, but, on the contrary, has been dragged out for a considerable time.

      At present, the problem of specialization in the aspect of effectiveness seems to lie in implementation of the internal judicial specialization and improvement of professional qualification of the court staff and the corps of bailiffs. Besides, informal specialization of judges in certain categories of cases is quite successful in the current system of civil jurisdiction. In future, to ensure an effective relief at law, a similar specialization should be developed, but only within the framework of the civil procedure and, hence, the civil procedural law.



[1]  See: M.G.Mitina, Printsip avtonomnosti arbitrazhnykh sudov v sudebnoi sisteme strany (The Principle of Independence of Arbitration Courts in the Judicial System of the Country). Law Journal, No. 4, 1999, p.31.
[2]  See: V.D.Sorokin, Administrativno-protsessualnoye pravo (The Administrative Procedure Law), Moscow, 1972, p.88.
[3]  See: M.A.Vikut, I.M.Zaitsev, Grazhdanskii protsess. (The Civil Process). The Course of Lectures. Saratov, 1998, p.21; Grazhdanskoye protsessualnoye pravo Rossii. (The Law of Civil Procedure of Russia). Edited by M.S.Shikaryan. Moscow, 1998, p. 13.
[4]  Yu.N.Starilov, O sushchnosti i novoi sisteme administrativnogo prava: nekotoryye itogi diskussii (The Essence and the New System of the Administrative Law: Some of the Results of the Discussion). Gosudarstvo i Pravo (The State and the Law), 2000, No.5, p.12.


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