LEGAL REGULATION OF CIVIL PROCESS
AT ITS SEPARATE STAGES
In consideration of issues of legal regulation of the civil process at its separate stages, it would be topical to highlight three important theses. The first thesis answers the question as to whose interests are (or must be) protected by the modern civil (arbitration) procedural laws. The second thesis concerns the problem of principles, their influence on accessibility and effectiveness of justice in civil cases in a wide meaning of this term. And the last thesis consists in disclosure of the theme of the legal regulation of the process at its separate stages in order for the procedure of consideration and adjudication of cases to ensure real protection of legal rights.
The problem of accessibility has many aspects. It depends on the structure of the judicial system, training of judges, their qualification and morals, procedural rules of justice administration.
Therefore, this topic is discussed at many forums and from different viewpoints. While drafting procedural rules and laws, members of the Parliament also debate the possibility to fix high qualities of justice in the rules of a law. This topic becomes the subject of discussions at scientific conferences, such as this one.
A distinctive feature of scientific conferences consists in that they accumulate ideas which can be realized in draft laws nowadays or postponed for the future, since certain conditions and time are needed for realization even of a good idea.
To make justice accessible, good procedural rules for institution, trial, and adjudication of a case are needed. This is a functional component of justice. The procedural rules, i.e. the procedural form, establishes the order of individuals’ or organizations’ recourse to courts, discloses the capabilities of courts, determines legal costs, procedural actions of the parties, etc. It is necessary that before starting procedural actions, the parties other than the participants in a process understand the purpose of all that is going on in courts. Therefore, it is very important at this stage of establishment of a new legal system in Russia to elaborate legislatively such a civil process which could predetermine the quality of effectiveness and accessibility of justice.
Some of the scholars (professors V.V.Yarkov, and A.V.Tsikhotsky) are of the opinion, that there exists the danger that certain draft laws, in particular, the Code of Civil Practice, will reflect narrow departmental interests. This danger stems from the corporate influence and the influence of certain social groups on the system of justice administration.
It should be noted that such danger exists in principle, since different forces participate in creation, drafting, and adoption of the procedural legislation: arbitration, civil, administrative procedural, and other laws concerning court proceedings and the judicial system as a whole.
The laws may happen to reflect the interests of separate groups, mainly those who apply the procedural laws rather than the groups who are in real need of protection of their rights.
I agree with the mentioned scholars in that such disease might outbreak. However, I disagree with the assessment of the draft CCP of RF, which is being considered by the State Duma, that it is a narrow departmental draft law. It is, in fact, impossible to draft a narrow departmental law now. Interaction of different forces taking place nowadays reflects on the rules of the procedural laws.
Why is it impossible to draft a narrow departmental law? First, representatives of the Department of Public Prosecution and courts have opposing opinions. Certain participants in the legislative work think that the draft is deficient since it disregards the interests of the Department of Public Prosecution. There are, in fact, interests of different governmental bodies and they are reflected in the drafts. This is positive. Harmonization of interests should be taken into account, but interests of those subjects whose rights are protected should be the corner stone.
Science, its representatives are mostly responsible therefor, because there are few forces which act in the interests of people. Therefore, I disagree with the opinion that the drafts being considered by the State Duma are narrow departmental. It is necessary to put certain values above the interests of separate departments, organizations, bodies which will enforce the law. Law enforcers want to have simplified forms of the process, simple and short rules to be able to consider matters at their discretion. However, it may entail violation of legal rights, and there will be no accessibility of justice and guarantee of protection of rights.
At present, the draft laws are also evaluated abroad, in Strasbourg, and the changes in laws of other countries are also taken into account. Hence, all information is taken into account in many aspects. Sometimes some of the authors write about and call for establishment of an adversary process according to the Anglo-Saxon model.
O.A.Papkova in her book Grazhdanskiy protsess gosudarstv - chlenov Evropeiskogo Soyuza (The Civil Process of Member States of the European Union) gives an interesting example of British justice and science. It appeared that in 1995 Lord Wolf was commissioned to organize the procedural reform in England. In his report Lord Wolf wrote that the adversarial nature of the judicial procedure should not be rejected, but its negative features, which turn proceedings into a battlefield without fair terms, should be eliminated.
We should not follow the example of foreign colleagues who criticize very often their institutes related to the process. The foreign authors themselves advocate intensification of the role of a judge at the stage of pleading in the interests of the parties, i.e. they stand for extension of functions of a court in an adversary proceedings.
Many authors stand for all the principles of justice be rewritten and their definitions be given in the procedural laws to ensure accessibility of justice. Thus, E.M.Muradyan in her article concerning the principles of the civil procedure, published in the magazine Sovremennoye pravo (The Modern Law), No.6, 2000, gives her opinion that Russian law, like French one, should define the principle of option. In her opinion, it will improve the law, and its rules will further accessibility of justice in civil cases.
Actually, the legislation of a number of former republics of the USSR was developed this way. In the Republic of Belarus a chapter concerning the principles was included into the CCP. In Kazakhstan the principles of justice are set forth and listed in the CCP. If the chapters of various Codes of Civil Practice are compared, they will appear different. The first four-five principles coincide and the rest differ. The laws addressed to persons, their representatives, judges should not be written according to a theoretical structure. I stand for careful treatment of definitions in draft laws. If there are dozens of contradictory definitions in science, then how is it possible to reflect a scientific conception as a certain rule of law? Such legislation will be incomprehensible for a law enforcer and will give rise to a variety of enforcement practices. That is why there are limits concerning inclusion of certain static rule in any draft law. A process is a progress of a case. Therefore, the basic principle of procedural laws consists in setting forth the rules which provide for actions.
Finally, it is necessary to mention realization of the features of accessibility and effectiveness of justice in the legal regulation of separate stages of the civil process.
Deficiency of our procedural law is in that a good rule, a principle, is stipulated in general provisions of a law, and at certain stages of the process it is «suppressed». For example, the principle of the adversarial nature was proclaimed, but at the stages of preparation of a case for proceedings and review it is suppressed. Therefore, it is necessary to examine how the elements of the principal nature are realized at every stage of the process. Here I would like to draw attention of the conference participants to the fact that the outdated procedure of preparation of cases for court proceedings still persists, and nobody speaks or writes about it.
The former procedure is preserved in the draft CAP that has been submitted to the Duma. The procedure has an investigative nature. What does preparation of a case for proceedings start with? A judge interrogates, summons - he does everything! And what about the declared principle of an adversarial nature in the form of a guarantee of accessibility of justice? Quite a different procedure should be established, which would stipulate the actions to be undertaken by a claimant or his representative at the stage of preparation of a case for proceedings, and actions to be performed by a respondent or his representative. And a judge, as Mr. Wolf writes, guides, assists, facilitates achievement of positive results by the parties.
Therefore, in the draft CCP of RF submitted to the State Duma by the Supreme Court of RF the stage of preparation of a case for court proceedings has been restructured. In my opinion, the same should be done in the draft CAP of RF.
The problem concerning the adversarial nature of proceedings should be realized at all stages of the process, including the stage of review, which has proved to be the most contradictory. None of the legal systems faces the problem of protests, whereas we have such a topic for discussions, and solution whereof will affect adoption of a number of draft laws.
Accessibility and effectiveness of justice depend on the quality of the procedural regulation of all stages of the process, and not only on declaration thereof as general principles or ideas.